‘What kind of lawyer would be brazen enough to advance such mendacious legal arguments on behalf of their equally mendacious client, knowing there is zero chance that the challenge will succeed?’

Constitutional law expert Professor Pierre de Vos asks this following the announcement by Jacob Zuma and the JG Zuma Foundation that they are proceeding with their court challenge to review and set aside the appointment of Justice Raymond Zondo as the Chief Justice.

‘The challenge is a legal nonsense and an abuse of the court process, and thus yet another attempt by Zuma to delegitimise the State Capture Report as well as the Constitutional Court to avoid accountability for his dubious actions.’

In his analysis on his Constitutionally Speaking blog, De Vos says the Zuma foundation claims the appointment was irrational because President Cyril Rama phosa ignored the advice of the JSC, whose preferred candidate for appointment was now Deputy Chief Justice Mandisa Maya.

It further claims Zondo ‘scored the lowest number of votes from the JSC following the week-long interviews’, and that the JSC ‘effectively declared Zondo as unsuitable for the position’.

De Vos says the claim that the JSC effectively declared Zondo unsuitable for the position is false. Advocate Dali Mpofu SC, speaking in his capacity as spokesperson of the JSC, made clear at the time that the JSC believed ‘all four candidates were of a high quality’.

Additionally, section 174(3) of the Constitution makes clear that the President has the final say in appointing the Chief Justice ‘after consulting the JSC and the leaders of parties represented in the National Assembly’.

As the President is not required to appoint the Chief Justice ‘in consultation with’ the JSC, but merely ‘after consulting’ with the JSC, he is entitled to ignore the advice of the JSC.

The Zuma Foundation also argued that in choosing to appoint Zondo, Ramaphosa acted in breach of the equality clause and section 174(2) of the Constitution ‘both of which prohibit gender discrimination’.

De Vos says the claim section 174(2) of the Constitution prohibits gender discrimination is self-evidently false. What the section says is the ‘need for the judiciary to reflect broadly the racial and gender composition of SA must be considered when judicial officers are appointed’.

De Vos notes the section does not contain a prohibition of any kind, as the foundation claims. ‘Instead, it imposes a duty on the body or person making the appointment, to consider – as one of the relevant factors – the need for race and gender representivity in the judiciary when making an appointment.’

He adds in President of the RSA and Another v Hugo, the Constitutional Court noted the provisions of ‘the Bill of Rights provide no ground for an effective review of a presidential exercise of such a power’.

De Vos suggests the real reason for the challenge is revealed by the Zuma foundation’s claims that the case will require Ramaphosa to ‘dispel the allegations or suspicions that Zondo was being unduly rewa rded for absolving Ramaphosa for his role in the Bosasa/CR17 scandal, among other things, in the so-called State Capture Commission Report’.

This claim – says De Vos – is false, as the President cannot be legally required to dispel Zuma’s allegations or suspicions unless he provides the court with evidence that might give rise to a reasonable apprehension of bias on the part of Ramaphosa.

‘As there is no such evidence, this is a self-serving political (and not a legal) claim, aimed at promoting Zuma’s campaign to discredit the State Capture Commission, his successor as President, and the Constitutional Court which sent him to jail for his outrageous contempt of that court.’ 

De Vos adds as Zuma is going to lose this case and will almost certainly be ordered to pay the costs of his opponents, one wonders where the money for this ‘hopeless’ litigation is coming from.

‘I suspect much might be revealed about our politics if we knew who the benefactors bankrolling this folly are and what benefits they expect from doing so.’

Full analysis on the Constitutionally Speaking blog