The days are numbered for President Cyril Ramaphosa, in conjunction with the Judicial Service Commission (JSC), to appoint the country’s next chief justice. As noted recently in Daily Maverick there are fewer than 50 days remaining to make this crucial appointment.

As during the appointment of Chief Justice Mogoeng Mogoeng, Ramaphosa will have to handle a political hot potato in an era of mounting criticisms against the judiciary. Under any circumstances, the appointment of a new chief justice will command attention and anxiety, more so during this time when the South African judiciary is alleged to be captured or deeply inserted in politics.   

The swirl of comments around Mogoeng after the recently nullified judicial appointments process and the sluggish performance of the JSC; and retired Gauteng Deputy Judge President Phineas Mojapelo’s verdict at the Judicial Conduct Commission against the chief justice — which essentially accused him of political activism — have given rise to concerns that the judiciary has become one of the key players in the current toxic political environment.

The two questions I would ask are: will the new chief justice be one of the most important announcements since 1994? And has the time come to appoint a woman to the highest judicial office in the country?

The answer is definitely yes to both questions. With regard to the first question, the already boiling debates and political machinations around the next chief justice indicate that the appointment will be the toughest since that of outgoing Chief Justice Mogoeng. As noted in Daily Maverick by Judges Matter, “[a] potential Chief Justice will be required to be an influential leader on several levels, both as the head of the Constitutional Court (the highest court in the country), and the head of the entire judiciary. Not every judge will necessarily meet these standards.”

The EFF’s commander-in-chief, Julius Malema, has already fired the first salvo in the direction of Deputy Chief Justice Raymond Zondo, labelling him as “incompetent” to be the next chief justice. “Zondo doesn’t qualify to be our chief justice. He is the most incompetent person who has plunged this country into crisis,” retorted Malema during an EFF media conference last week.

Malema also fired a blistering attack on the efficiency of the current bench of the Constitutional Court, pointing to delays in issuing judgments even in urgent cases. Mogoeng will surely disagree with Malema on the delays as not being attributable to the incompetence of the bench. He briefly explained the delays in Constitutional Court judgments in his foreword to the Judiciary Annual Report 2019-20 in the context of the number of  cases before the apex court due to its expanded jurisdictions and the need for the justices to arrive at collegiate rulings:

“The Apex Court is, unlike other higher courts, therefore bound to take as long as it often does to finalise cases. Maintaining a strong culture of collegiality and the requirement that 11 or eight independent minds always be brought to bear on all applications occasions delays. It often takes long for Judges who bear the ultimate responsibility to develop and settle our Constitutional jurisprudence to iron out their differences. Clothing the Constitutional Court with a much wider jurisdiction in 2013 inevitably led to a progressive rise in the number of cases, which contributed to longer delays.”

From the consideration of many factors, including the transformation trajectory of the judiciary and the fact that the appointment of the chief justice is an event of major significance in our legal and political landscape, it is clear that the net must be cast wide.

The time has arrived for the appointment of a woman chief justice in South Africa. So far all former and current substantively appointed chief justices have been men: Ismail Mahomed (1998-2000); Arthur Chaskalson (2001-2005); Pius Langa (2005-2009); Sandile Ngcobo (2009-2011); and Mogoeng (since 2011). Interestingly, all the deputy chief justices have also been men — Deputy Chief Justice Pius Langa (2001-2005; Deputy Chief Justice Dikgang Moseneke (2005-2016); and Deputy Chief Justice Raymond Zondo (2016 to date).

As my previous opinion on this subject noted, the presence of women on the bench matters. The appointment of a woman chief justice is both a matter of justice and a matter of validating the legitimacy of the face of the judiciary in any human-rights anchored country. There are women judges in the country who have demonstrated equal abilities to that of men or even surpassed that of male judges to take on the leadership role as both head of the apex court and the judiciary in general. 

I wonder what Mogoeng’s advice would be on the appointment of the next chief justice? In pondering this question, one must remember that appointments to the bench can enhance or diminish the legitimacy of the judiciary. I would look no further than an interview that the chief justice had with his former American law clerk, Drew F Cohen, in 2012 and published in 2014 in the Northwestern Journal of International Human Rights.

Asked “what measures can the Constitutional Court take to improve the institutional legitimacy of the judiciary?” the chief justice did not hesitate to decry the fact that the judiciary under apartheid at “superior court level were almost exclusively male and white”.

Mogoeng responded: “You have to remember where the judiciary is coming from. One of the major challenges about legitimacy during the apartheid era was judicial officers at the superior court level were almost exclusively male and white. And the magistracy was no exception, except in the Homelands of course where you had a number of black faces there. So the vast majority of the public said, ‘But these are not our courts. These are white peoples’ courts. Why are they run almost exclusively by white people?’

“Illegitimacy hinged, fundamentally, on the fact that people could not relate to them. They found these courts foreign because people like them were not appointed to positions on those courts. There were remarks of course that judicial officers would sometimes make about black people that led them to believe that these are really apartheid courts. Why would a judge say about black people that they just stab others with knives whenever they feel like it? They have a lust for stabbing other people with knives. How some of the judicial officers would address black people as Bantus and so on. Those are some of the things that denuded these courts’ legitimacy. Although, there were some excellent judicial officers who were really impartial even during the apartheid era.” [p.143].

The above answer by the chief justice is profound and provides a slightly different perspective on the debate about who should be appointed as the chief justice of the Constitutional Court after the expiry of Mogoeng’s term. Arguably, Constitutional Court appointments must take the lead in promoting gender representativity and transformation of the judiciary.

Judges Matter, in one of its 2020 opinions, addressed the issue of gender in the appointment of the next chief justice and called for the appointment of a woman: “An obvious consideration in appointing the next Chief Justice is whether the time has come to appoint a woman to the highest judicial office in the country. All the Chief Justices in South Africa’s history, both before and after apartheid, have been men.”

South Africa must not be left behind with regard to the realisation of the role women judges can play as leaders of the judiciary, in particular as chief justice.

Kenya, for example, recently appointed Judge Martha Koome as its chief justice in what has been lauded as a sensitive moment in the history of that country’s judiciary. Kenya was able to rise above patriarchal inclinations and appointed a female judge who helped to write women’s rights into the constitution of Kenya. She also supported a ruling in 2019 affirming gay rights in a country where gay sex is punishable by 14 years in jail in terms of a largely dormant law.

The appointment of a woman as our next chief justice may turn out to be just wishful thinking in a profession where patriarchy rules the day. Already one commentator has alluded to keeping with convention and norms of seniority when recommending the next chief justice. Such a cockeyed approach should be avoided at all costs. If we go by seniority, then it goes without saying that the senior-most Constitutional Court judge in line to succeed Mogoeng should be Zondo.

Following that reasoning, a woman chief justice appointment will never be possible and men will continue to rule the bench. DM