South Africa

JUDGES MATTER OP-ED

Explainer: How the process to choose South Africa’s next chief justice will unfold

From left: Chief Justice Mogoeng Mogoeng. (Photo: Alet Pretorius / Gallo Images) | Judge Navi Pillay. (Photo: Supplied) | Former Public Protector Thuli Madonsela. (Photo: Gallo Images / Frennie Shivambu) | President Cyril Ramaphosa. (Photo: Gallo Images / Sharon Seretlo)

President Cyril Ramaphosa started the process of selecting the country’s next chief justice by making an unprecedented call for nominations from the public. Judges Matter explains the five-stage process.

 

Alison Tilley is an attorney and coordinator of the Judges Matter campaign. Judges Matter is a civil society project that monitors the appointment of judges, their discipline for misconduct and the governance system of the judiciary in South Africa.

On 16 September 2021, President Cyril Ramaphosa kicked off the process of selecting South Africa’s next chief justice by making an unprecedented call for nominations from the public.

Although it came only 20 days before the retirement of outgoing Chief Justice Mogoeng Mogoeng, this historic break from past practice is a boost for transparency and participatory democracy. We believe it is more likely to deliver a good candidate for chief justice.

In this article, we explain how the five-stage process is likely to unfold.

Timeline for the chief justice appointment

16 September — Public nominations open

1 October — Nominations close

4 October — All nominations received published on Presidency website (longlist)

15 October — Objections on candidates due

29 October — Shortlist announced by Pillay Selection Panel

November (TBC) — JSC interviews shortlisted candidates

November (TBC) — President consults party leaders in Parliament

December (TBC) — President appoints Chief Justice

Stage 1: The public nominates (deadline: 1 October 2021)

In the first stage of the appointment process, ordinary South Africans have been given an opportunity to submit written nominations by email to the Presidency. The nomination must include reasons why the candidate qualifies to be chief justice, including experience as a legal practitioner or a judge, including any leadership experience.

The nomination must be accompanied by an endorsement of the candidate by a legal professional body (this would presumably be organisations such as advocates’ associations, the Legal Practice Council, the Magistrates Commission or judges’ associations) or a non-government organisation that is involved in human rights or another legal field. Finally, the nominated candidate must accept the nomination in writing.

All this must be sent by email to [email protected] or [email protected] by Friday, 1 October 2021, which is not much time. Once all nominations are in, the Presidency will publish the names and supporting documents of all candidates on Monday, 4 October 2021.

The public will thereafter have an opportunity to raise objections to any of the candidates, which must be in writing and fully motivated. These objections must also be emailed to the same addresses by Friday, 15 October 2021.

Stage 2: The Pillay Panel selects (deadline: 29 October 2021)

Alongside the call for chief justice nominations from the public, the Presidency also announced the appointment of a six-member selection panel. Headed by Judge Navi Pillay, a former United Nations High Commissioner for Human Rights and former judge of the International Criminal Court, the panel will be responsible for drawing up a shortlist of between three and five names that will be forwarded to the Judicial Service Commission (JSC) for interviews.

The Pillay Panel is remarkable for the diversity of fields from which commissioners are drawn, including legal and non-legal backgrounds. It has people like former Public Protector Thuli Madonsela, US-based constitutional law academic Ziyad Motala and civil society stalwart and LGBTQI+ activist Mmapaseka Steve Letsike.

We think ANC politician Jeff Radebe is unsuitable to be on the panel, considering his poor track record as justice minister. We also think it was unnecessary to include current Justice Minister Ronald Lamola on the panel considering that, as a JSC commissioner, he will have ample opportunity to participate during the interview stage.

The Pillay Panel’s immediate task, which must be done after its first meeting, is to publish written terms of reference which must include its procedural rules, a set of evaluation criteria and decision-making rules. This will follow the precedent set during the 2018 appointment of SARS Commissioner Edward Kieswetter where, shortly after its appointment, the selection panel published its terms of reference, evaluation criteria and procedural rules.

We believe that the evaluation criteria will be indispensable to the integrity of this process and the Pillay Panel must immediately focus on compiling one that will set out the essential qualities the shortlisted candidates must possess (including exceptional experience as a lawyer and judge, a track record of high-quality judgments and experience in leading a court or other complex organisation).

Failure to do so will undermine the tremendous opportunity the panel process provides to improve the transparency and credibility of the process of appointing the chief justice.

Stage 3: The JSC interviews (likely due: November 2021)

Perhaps the most crucial (and likely most closely watched) stage of the chief justice appointment process will be the public interviews before the Judicial Service Commission. Each candidate will come before the panel of 23 commissioners to be questioned on their qualifications, their track record as a lawyer, a judge and leader, and their vision for the South African judiciary.

It is no secret that the JSC interviews are vigorous in their nature, however, they must be so within the confines of fairness and equality. Following deliberations, the JSC must advise the president on the candidates’ suitability (there is nothing prohibiting the JSC from ranking their preferred candidates for chief justice).

In the past, JSC interviews have turned into a spectacle that does more to boost the egos of politicians and lawyers than a serious attempt to select the best candidates for high judicial office. The last interview for chief justice in 2011 was also unnecessarily combative, with moments of high drama.

We do not think there is any need for this. Indeed, we hope the JSC will do all in its power to avoid this situation. One important way to achieve focus in the interviews is to draw up a set of criteria and publish them widely. This was done in 1998 by Chief Justice Ismail Mohamed, when he published guidelines for selecting judges, and then again by the JSC in 2010. All questions must be based on these criteria and the chairperson must actively enforce constraints on the scope of questioning permitted, including by overruling inappropriate questions.

Stage 4: Opposition leaders in Parliament are consulted (likely due: November 2021)

The penultimate stage in the chief justice selection process is the president writing to leaders of all political parties in Parliament, requesting their input on the suitability of the candidates. Party leaders are free to comment on only one or all the candidates, including providing reasons why they believe any (or none) should be appointed as chief justice. 

Importantly, party leaders may also list each candidate according to their preference and highlight which candidate they would endorse for chief justice.

Stage 5: The president appoints (likely due: December 2021)

Although the president is required to consult the JSC and leaders of political parties in Parliament, the decision ultimately rests on his shoulders.

Following this extensive consultative process, the president will select one of the candidates shortlisted and appoint them as chief justice. The announcement will be followed by the chief justice taking his official oath of office before the deputy chief justice or the next most senior justice of the Constitutional Court.

Judges Matter will keep an eye out

Judges Matter has written extensively about the role and qualities of the position of chief justice. We will continue to closely monitor the process to appoint the next chief justice and provide regular commentary and analysis to help the process be more understandable. All this information is available on our website: www.judgesmatter.co.za and our Facebook and Twitter pages: @WhyJudgesMatter. DM

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All Comments 8

  • This is a great improvement, but CR tainted it with his “cadre deployment” of two ANC ministers onto the Pillay Panel (It should have consisted solely of independent experts) The ANC cannot merely strive for excellence, without making sure the party’s views are protected. The other weakness is the composition of the JSC. It should consist of legal experts with no political affiliations, but some members are incompetent with no understanding of the qualifications, experience, qualities and values required for the position of Chief Justice, simply because they possess none of these themselves. The JSC should consist of wise, impartial people.

  • Step 5 is the one that matters. It solely depends on Ramaphosa. Will history repeat and we get another disaster like Moegoeng?

    In the US the appointment of a judge to their supreme court is one heck of a political process. If that is any indicator then we can expect some controversy.

  • As long as we have astute legal minds, such as that of Julius Malema on the JSC it is difficult to take their deliberations seriously. Seriously?

  • Thanks for clarifying, Alison. Its comforting to know that your organisation is watching processes closely and can alert us to jump to action if need be!

  • Pray to god that President do not choose Adv Thuli Madonsela. she became famous just for the ex president Zuma matter, any other complaints related to women ministers, she simply block for years until she left.

  • This article fails to explain who or how the ‘chairperson’ of the JSC is elected/selected ? Remember how the outgoing head of the Constitutional Court, in the previous deliberations of potential appointments to the CC … instead of exercising control over the legitimacy of the ‘questioning’ processes by the JSC, actually participated in its abuse ? How do we avoid such egregious conduct, especially with the presence of provocateurs like Juju actually allowed to be part of the process ? And for good measure, we have a legal dilettante (pretending to be a genius) like Mpofu also on the JSC !! For all the efforts to clean up the process, I foresee a long and torturous road ahead in the process !