DM168

JUDGING THE JUDGES ANALYSIS

JSC interviews for next chief justice were farcical thanks to Mpofu and Malema

JSC interviews for next chief justice were farcical thanks to Mpofu and Malema
EFF leader Julius Malema and Advocate Dali Mpofu on Day 04 of the interviews for South Africa’s next Chief Justice at Park Hotel on February 04, 2022 in Sandton. Photo:Felix Dlangamandla/Daily Maverick

South Africa’s new Chief Justice will need a titanium backbone and a strong mindset.

The positive side of this week’s Judicial Service Commission (JSC) interviews to choose the next Chief Justice: four candidates any country would be proud of. The downside: evidence that the judicial system – including the institution of the JSC – is in major need of some reform.

Presenting yourself to the JSC for your interview has become something of a spiritual suicide mission for certain kinds of judicial candidates. If you are white and aspire to appointment to one of the country’s higher Benches, you should be prepared for an interview in which your unsuitability will be essentially taken as a given, with your task to persuade commissioners to the contrary. (Example: Judge David Unterhalter, one of SA’s finest legal minds, interviewing for the Constitutional Court in 2021.)

If you are a woman, as Judge Mandisa Maya experienced this week, one of the best outcomes you can hope for is to be patronised to tears. Don’t rule out the possibility of also becoming the subject of a male commissioner’s lewd double entendre, as was the case when Dali Mpofu SC winkingly insinuated to the JSC that he and the judge had once “spent a night together” – studying, he eventually clarified.

If you are a candidate who is perceived – rightly or wrongly, and regardless of actual evidence in this regard – as having any form of relationship with or appreciation for any figure associated with the administration of President Cyril Ramaphosa, you will truly be on the ropes. Just ask Judge Dhaya Pillay, who was subjected to a disgraceful tongue-lashing on the subject by commissioner Julius Malema and others during the notorious April 2021 Constitutional Court interviews that ended up having to be rerun in their entirety because they were so dysfunctional. After being so wantonly disrespected the first time around, Judge Pillay removed herself from the second attempt at interviews – and who could blame her?

It should go without saying that this is not supposed to be the case. The most accomplished legal figures in the country should not have to approach the JSC braced for full-blown public humiliation. The inevitable effect will be that fewer and fewer qualified candidates will be willing to subject themselves to that ordeal. Any aspirant jurist who witnessed how Judge Dunstan Mlambo was ambushed this week with anonymous sexual harassment rumours during his interviews will have been given serious pause for thought about whether accepting judicial nomination is worth potentially seeing your reputation go up in flames.

The JSC is currently a farce. It’s not just that commissioners increasingly use the platform primarily to make political points, take digs at opponents and ventilate grievances against judges who have previously ruled the “wrong” way. The general level of questioning, even when not expressly intended to sabotage a candidacy, is also poor.

Judge Mbuyiseli Madlanga was asked for his views on the terrorism risk to Southern African Development Community countries. How should he know? The man is elbow-deep in Constitutional jurisprudence, not scanning flight plans for the names of ISIS operatives. Judge Dunstan Mlambo was asked whether his lack of frontline Struggle credentials should render him an inappropriate candidate for Chief Justice, as if the job required first-hand knowledge of the best way to blow up apartheid infrastructure. Everyone was asked whether South Africa is “ready” for a female Chief Justice, which had the benefit of at least being vaguely relevant to the proceedings at hand, but is also entirely inconsequential, given that the best candidate is not selected by national referendum of patriarchal cretins.

It was hard not to give a sigh of relief at the reminder issued by Judge Mlambo to Malema: that ultimately the choice of Chief Justice is exclusively the prerogative of the sitting president, with the JSC only on hand in an advisory capacity. That is, of course, until one remembers what happened in 2011: when the sitting president disregarded obvious frontrunner candidate Dikgang Moseneke in favour of a Chief Justice who just this week issued a statement that began by noting that he had lost an appeal against judicial misconduct findings on “day number 666 of the lockdown in our land”, as if that diabolical number explained everything.

The process of judicial selection is in urgent need of some kind of reform – and if the performance of the current JSC continues down its current shambolic path, matters will come to a head in a way that will certainly require a firm hand from the next Chief Justice. That is not an enviable prospect, and it is certainly not the only headache that one of the four candidates interviewed this week will have to tackle.

One of the benefits of functional JSC interviews is that they give the public a rare glimpse into the inner workings of the judiciary, and the picture that emerged this week was alarming in a number of respects. Perhaps the most chilling revelation was made by Judge Mlambo, who lamented that it has become common for judges to be approached by Cabinet ministers wishing to “conscientise” them about “how to rule in certain matters”. This is not altogether surprising, given the recent history of executive interference in multiple inappropriate arenas, but it was still appalling to have it confirmed. Another worrying development, brought to our attention courtesy of Mlambo: an apparent proliferation of corruption centred on the issuing of fake court orders.

Then there are the ways in which the judicial system is currently failing to uphold certain basic human rights. Awaiting-trial detainees, still presumed innocent, can languish in jail for up to six years – something Mlambo described as an unacceptable feature in a constitutional democracy. The delays in the delivery of justice generally remain a perennial problem. Access to justice, too, is still problematic. As Malema pointed out in one of his few sensible observations this week: given that the population of Soweto exceeds that of some of South Africa’s neighbouring countries, isn’t it high time that Soweto received its own High Court?

Many of these issues are neither straightforward nor inexpensive to resolve. But they could be ameliorated in the hands of a Chief Justice with a clear vision, a titanium backbone, an independent mindset and a knack for administrative reform. To find all these qualities in one individual, together with the intellectual chops to take SA’s jurisprudence forward, is rare. But it has to be hoped that one of the four Chief Justice candidates will turn out to fit this bill – because there’s no doubt that his or her leadership will have a critical impact on the next few years of SA’s always uncertain future.

jsc interviews chief justice candidates ramaphosa

Justice Mbuyiseli Madlanga at the interviews for South Africa’s next Chief Justice at Park Hotel in Sandton on 1 February 2022. (Photo: Gallo Images / Daily Maverick / Felix Dlangamandla)

Judge Mbuyiseli Madlanga

Pre-interview advantages:

Viewed by many as the pre-eminent intellectual of the current Constitutional Court

Politically neutral

Pre-interview disadvantages:

Has very little experience in judicial leadership

Would be able to serve just three to five years as chief justice before mandatory retirement

Claim to fame:

Youngest judge ever appointed to the SA judiciary at the time, aged 34, in 1996

Quirky fact:

Resigned as a judge in 2001 citing financial pressures, only returning to the Bench in 2013

JSC interview performance:

Madlanga had a 10-hour interview but rarely appeared anything other than relaxed and confident.

He is clearly well-liked and widely respected, judging by the unusually warm reception he was given by the JSC, and Madlanga benefited from receiving the least problematic and most functional JSC display of all candidates.

The judge was at his most impressive when demonstrating his encyclopaedic knowledge of case law and passion for jurisprudence in general. He was adamant that the shortness of his potential tenure as chief justice should not be seen as a problem, but commissioners seemed less certain on that point.

Madlanga undoubtedly would be an excellent candidate for any judicial post, but one was left with the impression that he might be better suited to intellectual leadership rather than administrative leadership, with his core ability as a jurist.

On potentially controversial topics he was over-diplomatic and hedged his bets, and one distinct misstep was his reluctance to endorse the possibility of a female chief justice.

Judge Mandisa Maya at her interview for the position of Chief Justice in Sandton on 2 February 2022. (Photo: Felix Dlangamandla/Daily Maverick)

Judge Mandisa Maya

Pre-interview advantages:

Experience in leadership as president of the Supreme Court of Appeal

Endorsed for chief justice by the majority of law school deans in SA

Politically neutral

Appointing SA’s first female chief justice should appeal to President Cyril Ramaphosa

Pre-interview disadvantages:

Has not served as a permanent member of the Constitutional Court

Is a woman

Claims to fame:

First black woman on the Supreme Court of Appeal (2005) and its first black female president

Wrote the first significant judgment in isiXhosa

Quirky fact:

Was the first sitting judge to become pregnant while serving on the bench

JSC interview performance:

Judge Maya began with a compelling presentation on her vision for the judiciary, talking passionately about extending legal language resources, empowering women, implementing an overdue judicial sexual harassment policy and expediting the delivery of justice at the Constitutional Court. She exuded energy and focus, and looked like she might be the early frontrunner. But when questioning began, things fell apart.

Maya was hobbled by a paternalistic reception from the commissioners, and the interview rapidly became hyper-focused on her gender. Her energy faded, despite her shorter interview, and her answers grew ever more brief and vague as it progressed.

A potential red flag was her closeness to tainted Western Cape judge president John Hlophe. Disappointingly, Maya emerged as a candidate stronger on paper than in person – though a different tone and angle of JSC questioning might well have produced a superior result from her.

Dunstan Mlambo Judge President of the Gauteng Division of the High Court at the interviews of the Chief Justice of south africa held in sandton on 03 February 2022.Photo:Felix Dlangamandla/Daily Maverick

Judge Dunstan Mlambo

Pre-interview advantages:

An administrative wizard, particularly for the digitisation of Gauteng courts

Experience as Labour Court judge president and Gauteng high court president

Pre-interview disadvantages:

Politically divisive. Viewed by EFF and RET faction as “Ramaphosa friendly”

Limited experience at the Constitutional Court

Claim to fame:

High-profile judgments include a personal costs order on former president Jacob Zuma over the Nkandla saga, and ordering (in vain) the government not to allow Sudan’s Omar al-Bashir to leave South Africa in June 2015

Quirky fact:

Chose to move from the Supreme Court of Appeal back to the Labour Court to serve as judge president, which was viewed as principled because many would consider it a step backwards

JSC interview performance:

Judge Mlambo was subjected to one of the most shambolic interviews in JSC history. A small cabal led by Julius Malema and Dali Mpofu appeared intent on sabotaging his candidacy, ambushing him with anonymous sexual harassment claims against him.

Springing this on Mlambo is a violation of JSC rules. Yet acting JSC chair Xola Petse inexplicably permitted the uncorroborated allegations, vehemently denied by Mlambo, to be aired for hours. If this fiasco persuaded President Ramaphosa that appointing Mlambo as chief justice would be too risky, it would be deeply unjust. Mlambo remained unflappable, decisively refuting accusations of political bias. His responses to potentially loaded questions were authoritative, and he indicated his desire to be tough on under-performing judges and judicial attacks. It was a performance that inspired confidence that Mlambo could be the chief justice that South Africa needs.

Acting Chief Justice Raymond Zondo on Day 4 of the interviews for South Africa’s next Chief Justice at Park Hotel on February 04, 2022 in Sandton, South Africa. (Photo by Gallo Images/Daily Maverick/Felix Dlangamandla)

Judge Raymond Zondo

Pre-interview advantages:

Current Deputy Chief Justice, so in some ways a logical (though not inevitable) choice

Trusted household name after chairing the State Capture inquiry

Impressively resolute in face of attacks on the judiciary and Jacob Zuma’s defiance of State Capture inquiry

Extensive experience in judicial leadership as former Labour Court Judge President and Deputy Chief Justice since 2017

Pre-interview disadvantages:

Political hot potato after chairing State Capture inquiry and jailing of Zuma

Some doubts about his administrative efficiency because of State Capture inquiry delays

He would only be able to serve as Chief Justice for about two years, which the JSC is unlikely to be happy about

Claim to fame:

Being on TV almost weekly for four years thanks to the State Capture inquiry

Quirky fact:

Cried in front of the JSC recalling the kindness of an educational benefactor

JSC interview performance:

Judge Zondo’s JSC presentation was consistent with what we have come to expect of the judge from his chairing of the State Capture inquiry: measured, methodical, humble, but firm when pressed. By late Friday afternoon, proceedings were still being conducted in a civil fashion. Perhaps inevitably, questions from the commissioners focused extensively on the State Capture inquiry. It’s unclear whether Zondo did enough to allay concerns about his administrative efficiency, saying only that delays in the Labour Court under his presidency were the result of wider issues. He acknowledged he is not tech-savvy. Where he shone was in displays of ideological principle, speaking movingly about the need to build a better South Africa. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Woolworths, Exclusive Books and airport bookstores. For your nearest stockist, please click here.

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Comments - Please in order to comment.

  • Inge Evenwel says:

    The concern is who is choosing the Chief Justices…..Individuals who are NOT legal minds should NOT give their two cents…or did the RET place them there….?

  • Johan says:

    Thank you Rebecca. Your reporting on these interviews is much appreciated.

  • Charles Parr says:

    Why was the chair of this committee allowed anywhere this committee? He appeared to be too useless to run a Pickitup depot let alone manage a committee of this importance.

    • Kanu Sukha says:

      Agreed ! Who carried responsibility for his appointment … knowing what kind of shenanigans the RET aligned gangsters carried out in the previous CC judges interviews ?

  • jcdville stormers says:

    Unless you are RET you see these 2 for what they are,2 chancers riding the stage of attention grabbing every opportunity they get, but for moderate south africans they are just showing that even if you have a degree ,it doesn’t mean you have manners, respect for positions etc.They love being in the media and will dish up any drivel to be given coverage to feed their egos.

  • Colin Beard says:

    “A potential red flag was her closeness to tainted Western Cape judge president John Hlophe.” For me that sentence is a very large red flag indeed ,and waving frantically. It should, if the JSC had included any members with a grain of decency, have disqualified her.

  • Kanu Sukha says:

    Thank you for an informative analysis of the process – significantly better than the unashamedly biased views expressed by Prof Sibanda in his recent article. I used to be an ardent ‘fan’ of his views and understandings of issues … but this recent article suggests he is a ‘closet’ supporter of state capture operatives . Remember how the current PP ‘fooled’ many of us about her ‘abilities’ … as did the ‘appointment’ of the past CJ, which the prof. ‘recommends’ and uses as ‘justification’ for his choice ? Hindsight is indeed an exact science !

  • Kanu Sukha says:

    The only question I have about the accompanying picture to the article of the two m’s in the picture – why were they not in red overalls ? Possibly to try and hoodwink the electorate/viewers about who and what they really are ?

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