In the spirit of consultative democracy and transparency, President Cyril Ramaphosa has invited all South Africans to submit nominations of candidates for the position of the next chief justice of the Constitutional Court and the head of the judiciary. This the President did as part of his mandate in terms of section 174(3) of the Constitution, which reads: “(3) The President as head of the national executive, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.”

The President probably also did consider the fact that appointment to the Constitutional Court – or the Constitutional Court itself – has become a great polariser in South African politics. The process for making appointments to the highest court in the land has become more political than ever. I do not want to mention what some may call the embarrassment to which the Judicial Services Commission (JSC) subjected the country when it interviewed candidates for the position to the Constitutional Court. This, as everybody knows, led to the JSC walking into another interview room with its tail between the legs to re-interview the same candidates. At least the latest outcome points to the fact that the nearly unbridled discretion of the JSC and political machinations took a back seat. As the Mail & Guardian put it, “better process, same outcome”.

With the eight names on the nomination list – Western Cape Judge President John Hlophe; Justice Mbuyiseli Madlanga; Justice Mandisa Maya; Dr Wallace Amos Mgoqi; Advocate Busisiwe Mkhwebane; Gauteng Judge President Dunstan Mlambo; Advocate Alan Nelson, SC; and Deputy Chief Justice Raymond Zondo – we are in for a treat in weeks to come.

There may be different perspectives to this, including, but not limited to, whether this is a defining moment to finally determine if South Africa is committed to making an honest attempt at transforming the judiciary; and the polarisation of the different divisions of courts and bar associations in South Africa viewed from how nominations were canvassed. We all hope that the Presidential Shortlisting Panel will discharge its obligations without fear or favour, and will not add to the potential fallout as a result of the final list to be communicated to the President.

The terms of reference (ToR) have been made available on the presidential website. The panel has the cumbersome task of assessing and scrutinising all received nominations against the assessment criteria stated in the ToR document. I deliberately chose the word “cumbersome” because of some of the criteria set in selecting the three to five candidates to be recommended to the President. 

For instance, the panel – in terms of clause 5 of the ToR – must assess whether a candidate: is a fit and proper person who possesses the qualifications, skills, knowledge and expertise reasonably expected of an incumbent of the position of the chief justice (Clause 5.1); whether candidates demonstrate as head of the judiciary the ability and capability to:- (a) defend, protect and uphold the Constitution (Clause 5.3); is reputed to be of unblemished integrity, be beyond reproach, possess moral leadership qualities and strong skills that would assist in promoting and enhancing a harmonious environment for the entire judiciary (Clause 5.4);  is judicially competent (Clause 5.5); and demonstrates a level of sensitivity and objectivity towards equality in terms of race, gender, persons with disabilities, LGBTI people and other vulnerable groups. (Clause 5.6).

Before I get to discussing the appointment criteria, I must comment on the fact that the deadline for submission of objections and comments about the published list of nominees is 15 October 2021. The problem in my view, with this condition, is that the public is not enabled to properly make objections, if any. To start with, the presidential website fails to provide a list of organisations or persons who nominated these candidates. It would be interesting to see how external factors and organised interest groups influenced the nomination processes or exerted pressure on certain groups to nominate some individuals. 

Further, one has no access to the substance of these nominations and letters of support, which could have been the starting point for those objecting to inform their objections. It could have served the public to know which of the nominations was the “standout” story. Simply put, the public has not been taken into full confidence, something I thought would be central to the process when the President opened up the nomination list to the ordinary person on the street and didn’t leave it to the closed network of lawyers and judges.

What really, for the ordinary person in the street, would be an accessible justification to object to a particular candidate? Would it be a candidate’s ventures into contentious areas of social and political discourse as narrated by the mass media and political figures? We must not forget that the public has no unprecedented access to the eight nominated individuals as those in the legal profession have. Already, I foresee objections coming from politicians and the legal profession itself. If this is the case, we have moved one step further away from the previous nomination process and 10 steps backwards to the shortlisting and appointment process of the previous nomination regime.

Back to the criteria in clause 5 of the ToR: sadly, not many people, when making their objections, will know how to align them to the question of the candidate not satisfying a particular criterion or not. For example, what do the concepts judicial competence and incompetence mean? Would judicial incompetence be considered numerically by looking at the candidate’s judgments appealed or reviewed? Would it be adjudged by the fact that political parties or politicians have lambasted a particular judge, or supported overwhelmingly a particular candidate?

The ability to defend and uphold the Constitution may also be relative to some in a process that is guarded and closed. I am not naïve that other hot-button issues have influenced the nomination of the candidates, and will still influence the final determination of whose names should be put on the President’s desk. 

Another criterion that the panel will have to grapple with is to determine that a candidate is “fit and proper” for the job. Some cases will be clear to determine, but one wonders if the public and those married to certain candidates being the chief justice by hook or by crook will find it palatable. If anything, the US is an exemplar of the fact that sometimes these processes can be biased, devoid of affinity to the Constitution, and mere political stakes, providing an ironic end to the pro-slavery justice’s time on the US Supreme Court.

The case in point is Chief Justice Roger B Taney who was extremely partisan and pro-slavery, and yet did ascend to the throne of chief justice despite him being averse to the rights of black people as human beings in the greatest democracy in the world. Who can forget that it was Taney who wrote the controversial Dred Scott v Sanford (1857) decision, which held that neither free nor enslaved African Americans were US citizens?

The point I am making here is that for any objectors to justify the exclusion of any particular candidate, it would have helped to know the content of documents of nominations. Also, where possible, which judgments or legal writings have been advanced to indicate that they are fit and proper persons possessing the qualifications, “skills, knowledge and expertise reasonably expected of an incumbent of the position of Chief Justice”.

Also, to be used by the potential objectors that they have the potential judicial competence to “defend, protect and uphold the Constitution”. Of course, some of the criteria will be confirmed or tested when the JSC  questions the nominees about their views on legal or constitutional issues – hoping that the JSC does not again make a mockery of the process.

Whatever the list that goes to the President, one can only hope that such a list from the panel will be representative of the expertise and ability of those shortlisted to ascend to the throne of the next chief justice. The list should also be made up of candidates who are not too intemperate and too extreme to be the chief justice of a country that has plastered over the cracks of the apartheid period.

One hopes also that the women on the said list of eight are not going to be overshadowed by the fact that six of the candidates are male, and that historically the chief justice has always been male.

It is only the second time in the history of democratic South Africa that the country has been gifted the opportunity to reshape the Constitutional Court and present to the public a court that is fully transformed. The court will be sensitive that being a chief justice is not only the preserve of men. I am reminded of US President Ronald Reagan, who when faced with such an opportunity to reshape the US Supreme Court, considered as part of this reshaping the nomination of the first woman to that court. The rest is history as Sandra Day O’Connor was unanimously confirmed by the Senate as the first female associate justice of the US Supreme Court from 1981 to 2006.

My parting request is that there should be no secrecy about the nomination papers for the position of chief justice. The public has the right to know which organisations, in particular, backed the candidates. Let us be bold enough to demonstrate that none of the candidates will be a captured chief justice or have to shoulder the heavy weight of certain undesirable interests. DM