You have to wonder exactly how President Jacob Zuma is spending his time these days. Apart from giving cringe-worthy interviews to foreign media, he’s little in evidence. He doesn’t much go to parliament even, where the cut and thrust of parliamentary politics is clearly proving too much for him.
He has also been notably absent from any leadership role during the campus violence of the past weeks.
And he isn’t signing legislation either: the Financial Intelligence Centre Amendment Bill languishes, and if he doesn’t take out his pen and use it, or refer the bill back to the National Assembly on the grounds that there’s something wrong with it, then hostile litigation awaits him, with questions about neglect of his clear constitutional duty and perhaps even another dressing down by the courts.
Arguably even more important than these, however, is that he doesn’t seem to be applying his mind to critically important judicial appointments.
The constitution says that Zuma, after consulting the Judicial Service Commission (JSC) and the leaders of parliamentary parties, appoints the chief justice and deputy chief justice. And after consulting the JSC — this time consultation with other political parties is not required — he appoints the president and deputy president of the supreme court of appeal (SCA). All four positions are his to fill.
Then consider that the retirement in May this year of the SCA president, judge Lex Mpati, was no secret. Many months — years even — before the due date, speculation had already begun about who would succeed him. Yet there has been no word from Zuma about candidates on whom he would wish to consult with the JSC.
It is all the more notable as the SCA deputy president, judge Mandisa Muriel Maya, is a black woman. Why would he not automatically consider her for appointment as president of the court, and why was there no consultation with the JSC about the matter when it last sat?
If Zuma wasn’t able to put his mind to it before now, perhaps preoccupied by raising personal home loans, then why, when the commission is assembled in Cape Town this week, has he not used the opportunity to consult with it? Check the JSC agenda, however, and you will find no such consultation has been scheduled.
The Republican Party in the US has been fiercely criticised for deliberately refusing, on grounds of political strategy, to ensure that the supreme court can sit with a full complement of justices. Zuma’s attitude to our highest court merits just as much criticism.
As with Mpati, it was well known that the deputy chief justice of SA, Dikgang Moseneke, would retire in May this year. Dinners were planned and held to mark the occasion. Symposia were organised to honour him on his retirement. No-one, not even someone with a diary as full as Zuma’s, would have failed to notice the event. And yet, as with the SCA top position, consultations with the JSC about the post of deputy chief justice have yet to take place.
Just as bizarre, there are two vacancies in our highest court, and yet only one vacancy has been advertised and interviews for just one position were held this week.
So what does it all mean? For Zuma-watchers, now starting to understand the way the president thinks, it could well suggest the very opposite of not applying his mind. It could mean the second vacancy will not be filled from within the constitutional court, as it has been in the past.
No, we might well be seeing a position reserved by Zuma to bring in a deputy chief justice from outside, from another court — someone, perhaps, to whom such promises have been made?
Once you admit this possibility it is easy to wonder whether there is a similar plan in place for the top spot at the SCA.
And, as the delays continue, speculation grows: what is this if not "court-capture"?