Acting public protector Kholeka Gcaleka on Friday cleared President Cyril Ramaphosa and justice minister Ronald Lamola of wrongdoing related to the appointment of Gauteng judge president Dunstan Mlambo to act in the Constitutional Court in 2022.
This followed a remark by chief justice Raymond Zondo during the Judicial Service Commission (JSC) interviews — in response to questions by EFF leader Julius Malema — that the way Mlambo got his acting stint in the apex court was unusual. At the time, Zondo was acting chief justice and also being interviewed for the post of chief justice.
Malema’s questions, which insinuated Mlambo’s acting stint was manipulated by Lamola to enhance his chances of appointment as chief justice, led to a stand-off between him and the minister during the interviews.
At a press briefing on Friday, Gcaleka recounted the complaints by ANC member Phapano Phasha and EFF MP Floyd Shivambu. She said Phasha alleged that in April 2021 former chief justice Mogoeng Mogoeng had recommended KwaZulu-Natal deputy judge president Mjabuliseni Isaac Madondo and Supreme Court of Appeal justice Owen Rogers to act at the apex court. But two months later, Lamola approached Zondo, then acting chief justice, suggesting that Mlambo be one of the candidates to be considered.
Gcaleka said Phasha had complained that “at first, Zondo informed the minister that it was too late for him to agree to the appointment. But on 08 November 8 2021, Zondo capitulated and concurred”.
Phasha complained that Lamola’s conduct could be perceived as a violation of section 175(1) of the constitution, which provides: “The president may appoint a woman or a man to serve as an acting deputy chief justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if the person holding such an office is absent. The appointment must be made on the recommendation of the cabinet member responsible for the administration of justice acting with the concurrence of the chief justice”.
Shivambu’s “related complaint” added that Mlambo had said in his own JSC interview that he was told the president was the person behind his appointment to act in the Constitutional Court; and that this was circumstantial evidence to conclude that Mlambo was the candidate preferred by the minister and/or the president for the position of chief justice.
The conduct of the minister and the president were “unlawful and unethical and aimed at judicial capture, and a manipulation of the rules to ensure that judge Mlambo gained an unfair advantage in the selection process for chief justice”, said Shivambu, according to Gcaleka. He complained that this violated section 96 of the constitution — which prohibits members of the executive from acting inconsistently with their office — and the executive ethics code.
But Gcaleka said section 175(1) allows the president to appoint an acting Constitutional Court judge with the concurrence of the chief justice. The section did not dictate who, between the minister and the chief justice, should suggest the judges to act in the Constitutional Court. It only required there be agreement between the two.
“It is therefore not clear whether the remarks of the chief justice regarding the minister’s actions being contrary to the norm and unusual were made in respect of the appropriateness of the particular recommendation, as the chief justice would have undoubtedly been aware that the minister is constitutionally authorised and obliged to recommend an acting appointment with the concurrence of the chief justice,” she said.
When Zondo did not give his concurrence to Lamola, he did not proceed to recommend to the president that Mlambo be appointed, she said.
“The minister therefore did not contravene section 175(1) of the constitution.”
Shivambu’s complaint was not backed up by evidence, she said. This was because the stint Mlambo was appointed for — January 16 2022 to March 30 2022 — was on the suggestion of Zondo.
The occasion when the minister made the suggestion was for a period over August and September 2021. On this occasion Zondo did not agree “and judge president Mlambo was neither recommended by the minister nor appointed”, she said.
The allegation was “not substantiated”.
Nor was the complaint against the president substantiated. The president appointed Mlambo “on receipt of the recommendation from the minister dated November 23 2021, indicating that he had the support of chief justice Zondo”.
“We could not find evidence that the president had violated section 175(1) of the constitution at the time he appointed judge president Mlambo as acting justice in the Constitutional Court,” said Gcaleka.
She said when Phasha and Shivambu were served with preliminary reports, Phasha said she was withdrawing her complaint, while Shivambu did not respond.
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Gcaleka clears Lamola of manipulating Mlambo's acting appointment to ConCourt
When Phasha and Shivambu were sent preliminary reports, Phasha said she was withdrawing her complaint, while Shivambu did not respond
Image: Freddy Mavunda/Business Day
Acting public protector Kholeka Gcaleka on Friday cleared President Cyril Ramaphosa and justice minister Ronald Lamola of wrongdoing related to the appointment of Gauteng judge president Dunstan Mlambo to act in the Constitutional Court in 2022.
This followed a remark by chief justice Raymond Zondo during the Judicial Service Commission (JSC) interviews — in response to questions by EFF leader Julius Malema — that the way Mlambo got his acting stint in the apex court was unusual. At the time, Zondo was acting chief justice and also being interviewed for the post of chief justice.
Malema’s questions, which insinuated Mlambo’s acting stint was manipulated by Lamola to enhance his chances of appointment as chief justice, led to a stand-off between him and the minister during the interviews.
At a press briefing on Friday, Gcaleka recounted the complaints by ANC member Phapano Phasha and EFF MP Floyd Shivambu. She said Phasha alleged that in April 2021 former chief justice Mogoeng Mogoeng had recommended KwaZulu-Natal deputy judge president Mjabuliseni Isaac Madondo and Supreme Court of Appeal justice Owen Rogers to act at the apex court. But two months later, Lamola approached Zondo, then acting chief justice, suggesting that Mlambo be one of the candidates to be considered.
Gcaleka said Phasha had complained that “at first, Zondo informed the minister that it was too late for him to agree to the appointment. But on 08 November 8 2021, Zondo capitulated and concurred”.
Phasha complained that Lamola’s conduct could be perceived as a violation of section 175(1) of the constitution, which provides: “The president may appoint a woman or a man to serve as an acting deputy chief justice or judge of the Constitutional Court if there is a vacancy in any of those offices, or if the person holding such an office is absent. The appointment must be made on the recommendation of the cabinet member responsible for the administration of justice acting with the concurrence of the chief justice”.
Shivambu’s “related complaint” added that Mlambo had said in his own JSC interview that he was told the president was the person behind his appointment to act in the Constitutional Court; and that this was circumstantial evidence to conclude that Mlambo was the candidate preferred by the minister and/or the president for the position of chief justice.
The conduct of the minister and the president were “unlawful and unethical and aimed at judicial capture, and a manipulation of the rules to ensure that judge Mlambo gained an unfair advantage in the selection process for chief justice”, said Shivambu, according to Gcaleka. He complained that this violated section 96 of the constitution — which prohibits members of the executive from acting inconsistently with their office — and the executive ethics code.
But Gcaleka said section 175(1) allows the president to appoint an acting Constitutional Court judge with the concurrence of the chief justice. The section did not dictate who, between the minister and the chief justice, should suggest the judges to act in the Constitutional Court. It only required there be agreement between the two.
“It is therefore not clear whether the remarks of the chief justice regarding the minister’s actions being contrary to the norm and unusual were made in respect of the appropriateness of the particular recommendation, as the chief justice would have undoubtedly been aware that the minister is constitutionally authorised and obliged to recommend an acting appointment with the concurrence of the chief justice,” she said.
When Zondo did not give his concurrence to Lamola, he did not proceed to recommend to the president that Mlambo be appointed, she said.
“The minister therefore did not contravene section 175(1) of the constitution.”
Shivambu’s complaint was not backed up by evidence, she said. This was because the stint Mlambo was appointed for — January 16 2022 to March 30 2022 — was on the suggestion of Zondo.
The occasion when the minister made the suggestion was for a period over August and September 2021. On this occasion Zondo did not agree “and judge president Mlambo was neither recommended by the minister nor appointed”, she said.
The allegation was “not substantiated”.
Nor was the complaint against the president substantiated. The president appointed Mlambo “on receipt of the recommendation from the minister dated November 23 2021, indicating that he had the support of chief justice Zondo”.
“We could not find evidence that the president had violated section 175(1) of the constitution at the time he appointed judge president Mlambo as acting justice in the Constitutional Court,” said Gcaleka.
She said when Phasha and Shivambu were served with preliminary reports, Phasha said she was withdrawing her complaint, while Shivambu did not respond.
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