This method of selection of appointing judges to the Constitutional Court created much debate. In the Technical Committee’s Twelfth Report, it was initially proposed that an independent Judicial Services Commission appoint all judges – except those for the Constitutional Court. It was argued that a different approach was needed, one which recognised the inevitable role of political input in the formation of a Court with such extensive powers. It suggested appointments based on ‘unanimous or balanced support among the parties represented in Parliament’. It added that appointment systems in comparable courts around the world did not use judicial services commissions.
It would be better to make these appointments openly on political terms but in such a manner that you achieve a political balance.
The ANC was in favour of a parliamentary committee with a high majority ratifying the appointment of the Constitutional Court judges. In a bilateral between the African National Congress (ANC) and National Party (NP), Kobie Coetsee, then the Minister of Justice and NP negotiator on judicial matters, insisted that the State President and the Cabinet should control all the appointments. Given South Africa’s judicial history and the criticism that had been levelled against executive-minded judges with political agendas, the ANC was wary of agreeing to this. Effectively this would give the ANC, who were likely to form the majority in the next executive, control over the appointment of the judges.
It seemed unimaginable to the ANC that Coetsee would act against his and the NP’s interests, but an interrogation of his proposal did not reveal anything sinister. In the end, the ANC agreed to the President and the Cabinet selecting the Constitutional Court judges in order to move the process forward. The ANC also conceded to the NP that four of the proposed eleven judges would be appointed from the ranks of the Appellate Division (Supreme Court of Appeal). The matter did not end there. This was the only issue agreed to in the bilaterals that then had to be revisited.
Although resolutions were ultimately found on the issues surrounding the establishment of the Constitutional Court, they had kept the negotiators busy day and night. This was particularly the case on the procedure of the appointment of judges. Just days before the final plenary session of the Multi-Party Negotiating Panel (MPNP) in November 1993, hostility between the ANC and the NP threatened to derail the Court’s establishment. On 11 November, the ANC and the NP entered into a bilateral agreement which resolved the issue – but this was not the end.
That night, Kobie Coetsee, the then Minister of Justice and NP negotiator on judicial matters, alerted Tony Leon, the leader of the Democratic Party (DP), to the terms of the ANC/NP agreement in a fax. Leon was outraged and a small war was unleashed at Kempton Park.
The kernel of the [ANC/NP] document was that all ten of the Constitutional Court judges would effectively be appointed by the President and the Cabinet, with four positions reserved for serving (old order) judges. The Chief Justice would be appointed by the President. In other words, the lynchpin of the new legal order would be open to blatant political manipulation, at the level of selection at least, and would simply ape the discredited appointment mechanism of the past. However, this court would be entrusted with far greater and more sweeping powers than any other in South Africa’s history.
Wasting no time, Leon headed for the World Trade Centre to meet with the DP Party Leader, Zach de Beer, the Chief Negotiator for the DP, Colin Eglin and the DP Spokesperson Douglas Gibson. At around midnight, they drafted a press release with detailed amendments to the bilateral agreement. In it, they warned that the ANC/NP agreement – which gave the President and the Cabinet almost unfettered power over the appointment of the judges – would destroy the independence of the judiciary.
The situation became explosive. Impassioned press statements revealed that the legal profession was divided in its response. The ANC, NP and DP continued in an angry battle. ANC negotiators, Dullah Omar and Joe Slovo, grew impatient. This was just one of at least ten challenging deadlocks that the negotiators were facing and time was running out. Dullah Omar accused the DP of wanting “the barons of the legal establishment” to determine the composition of the Court. Joe Slovo burst out in an untypical show of emotion:
“The real issue is not so much whether it is abstractly correct for Parliament or an independent body to appoint the judiciary, it really goes to the whole issue of the inheritance of apartheid and how do we begin to change the face of these power centres which have been based on race privilege?”
The DP threatened not to approve the Interim Constitution or to walk out of the process. The DP again proposed that Judicial Service Commission (JSC) be the body that appoints the judges. They argued vehemently that since the JSC was to be a diverse body of partisan and nonpartisan members with three of its six parliamentary members drawn from the opposition parties, it would ensure judicial independence. But the ANC would not yield. The plenary was now five hours behind schedule.
Just before dinner on the final day of the multi-party talks, Cyril Ramaphosa announced to the DP that the ANC had accepted that the JSC would play an important role in the appointment of some of the Constitution Court judges. The JSC would appoint six judges while the President would select the Constitutional Court’s President and the remaining four judges. This was a significant concession that shielded the appointment process from total political control. The headline in the DP’s newsletter, The Democrat, proclaimed: ‘DP saves the Constitutional Court, snatching victory from the jaws of defeat.’
Finally the issue of the Constitutional Court was settled. On 14 November, the Negotiating Council, the highest decision making body of the MPNP, ratified the decisions around the establishment of the Constitutional Court. Section 98 of the Interim Constitution established the Constitutional Court consisting of a President and 10 other judges.
Section 98 (2) provided that the Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution, including-
- any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3 (Fundamental Rights);
- any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state;
- any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;
- any dispute over the constitutionality of any Bill before Parliament or a provincial legislature, subject to subsection (9);
- any dispute of a constitutional nature between organs of state at any level of government;
- the determination of questions whether any matter falls within its jurisdiction; and
- the determination of any other matters as may be entrusted to it by this Constitution or any other law.
Some of these decisions were then refined in the final Constitution which took a far bolder view of the place of constitutional adjudication in the legal system than its predecessor. For now, a new Court had come into being.