Retired Constitutional Court Deputy Chief Justice, Dikgang Moseneke told a panel of mostly academics and students on Thursday that he had “no problem” with a woman being appointed to lead South Africa’s apex court. 

The term of current Chief Justice, Mogoeng Mogoeng, ends late next year and civil society is expecting that his replacement displays the same integrity and fortitude Mogoeng has – and be able to keep the executive at arm’s length – while guiding his colleagues.  

Mogoeng’s replacement is a talking point in legal, political and academic circles, but has not yet quite filtered down to grassroots level. Nevertheless, the prospect of the top court having its first female chief has been flouted.   

“Merits must not be left behind [when choosing the new Chief Justice]. If there is a woman of that merit and stature – not only stature in the vague sense, but of those qualities, then so be it,” said Moseneke. 

He was talking during a public Zoom discussion on his recently released book, All Rise – A Judicial Memoir, hosted by the University of KwaZulu-Natal (UKZN) and Pan Macmillan Publishers.

Dikgang Moseneke: ‘All Rise’ is a call to civil accountability

The qualities Moseneke was referring to include intellectual prowess, ethics, insight, respect for the institution and preservation of that institution. 

“The Chief Justice keeps the court together intellectually, shows the trend and where to go for the 10 other people [on the bench].”

 This was something that former chief justices Arthur Chaskalson and Pius Langa understood “very well” he added. 

“[Y]ou are better off with a court with some cohesion – you don’t want an American format where you are split all the time. Our court has always been different because the leaders often had insight into what outcomes ought to be and would work hard to get all of the other colleagues on board, or most of them.” 

There needed to be a fair evaluation in the appointment, said Moseneke, who in his book paid tribute to South Africa’s women judges. 

“Judge [Thokozile] Masipa who did the Oscar Pistorius trial, is one of the real early front runners, a senior judge, who ran that trial admirably – I have heard so in conferences all around the world. You may differ with her understanding of Dolus eventualis, but she ran the trial [in a world-class manner]…unobtrusively and so on,” he told the panel. 

“So, should [the next chief justice be a woman], I have no particular objection to that. I just want to make sure that all those qualities are there. Why? We have to preserve the judiciary, we have to preserve the institution – it is a vital arm of state, together with other arms of state.

The leading female candidates in the running for the next Chief Justice

“If you break it, there will be more hardship than otherwise. It is the institutional robustness that we need. And if a lady Chief Justice can give that to us, so be it. If a man can’t give it to us, he shouldn’t become Chief Justice either. ”

The Chief Justice was “one of 11” he said, where the focus was on “collegial accountability, mutual accountability” and having to “produce the goods”. 

Being representative of the make up of South Africa would also need to be maintained with future appointments. “We must try and find the best amongst us – it must remain representative of our country, we must find not who we like, but who we trust will be able to do the job.” 

The institution would need to be enhanced by whoever was appointed, and given what was necessary for it to thrive and “be useful”, it also had to be “integrated” he said, adding that this had actually been achieved.

“The judiciary is more transformed than any other arm of the state, currently. Over 65% of judges and magistrates are people of colour and women, when we started over 98% were white males. “ 

The expectations of the public should also be taken seriously. Using an example of his time as deputy chief justice, Moseneke said: “We were the super referees and we had to blow the whistle every time it was indicated or necessary. We had to be conscious of our responsibility posed by the constitution and the people.” 

He highlighted the role of civil society in the country (“we need more of it”) and in the appointment of judges, saying that submissions should be made to the Judicial Service Commission about those being considered for appointment.   

“We are going to need more active citizenry, people who care who their constitutional court judges are going to be.” 

It was “difficult” “almost impossible” to “capture” a judge, he said, when asked by Daily Maverick how the reputation of the court could be maintained and not be subjected to unscrupulous elements. 

 “If you capture one judge out of 11 on the constitutional court, you are not going to move the needle. In the Supreme Court of Appeal, if you [capture one or two] out of five, you are not going to move the needle. In the High Court, you have three judges – it won’t move the needle. 

“You are going to have to find a big conspiracy to capture the judiciary, the way it is currently structured. You may [be able to capture] one judge sitting alone, but all of that is subject to appeal anyway.” DM