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South Africa cannot afford another Chief Justice mistake


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

There can be little doubt that the judiciary is in the eye of a political storm, as the politics in South Africa descends into ever-increasing acrimony and division. We need a judicial leader who will ensure the public regains confidence in the judiciary.

Jacob Zuma, aided and abetted by his legal team, has one objective in mind — to ensure that his criminal trial never moves out of the interlocutory blocks. The new target is Billy Downer SC, who is widely regarded by informed sources in the legal profession as the country’s finest prosecutor.

No matter to the Zuma team; Downer is fair game in the war against law. And if the attacks on Downer fail, the team will move on the entire National Prosecuting Authority and if necessary the judiciary. 

It is a case of no trial at any cost, even if it involves the destruction of all key legal institutions. Even on medical parole, Zuma appears to be perfectly able to launch his own verbal rockets on the citadel of the judicial system, the Constitutional Court.

In their wake comes another from Camp Zuma — Arthur Fraser. He has launched an unbridled attack on Deputy Chief Justice Raymond Zondo’s nomination for Chief Justice. This is very much an undisguised trailer to the main feature — a review of the findings of the Zondo Commission. In tow, we find Dr Zweli Mkhize seeking to take the Special Investigating Unit to court following its devastating findings about the Digital Vibes scandal. 

Yet more Stalingrad tactics are on the cards. 

Not far behind, with the same playbook in hand, comes Western Cape Judge President John Hlophe. He is seeking to review the decision of the Judicial Service Commission (JSC) that he should be impeached. From press reports, it is clear that Zuma-type tactics will be employed here to ensure that no decision will take place on his impeachment until he can safely disappear into retirement.

Each of these cases will bring the performance of the judiciary into sharp focus. All of this takes place against a backdrop of declining public confidence in the judiciary. According to a recent Afrobarometer survey, only 43% of the interview sample has confidence in the judiciary. 

The past decade has seen a disturbing waning of judicial legitimacy. In this context it is odd that, other than a column by Paul Hoffman SC in Daily Maverick and analysis by Stephen Grootes, the retirement of Chief Justice Mogoeng Mogoeng as the head of the judiciary has been greeted with varying degrees of hagiography. Truth be told, history will surely show that he was the worst Chief Justice since Pierre Rabie.

Yes, he did deliver the Nkandla judgment, but the legal objection to the recommendations of the Public Protector had been abandoned by Zuma’s counsel and, more than that, the amount ordered by the court to be paid by Zuma was vastly reduced from that which appeared, admittedly somewhat unclearly, in the report of the Public Protector.

On the debit side: in 2017, Mogoeng CJ authored an excoriation of the majority judgment in the EFF case brought to challenge the process in the National Assembly for the removal of the president. In Public Protector v South African Reserve Bank, in a minority again, he sided with the Public Protector’s argument that she should not be mulcted with a personal cost order, the compelling logic of the majority about her egregious conduct notwithstanding.

In his most recent judgments, the same depressing quality of jurisprudence has been evident. In Premier of Gauteng and Others v DA and Others, which concerned a dispute involving organs of state in the provincial and local government, the judgment took some 13 months to be delivered and then with the court divided 5:5. There was no majority judgment, but somehow, led by the Chief Justice, the court maintained that the appeal succeeded. 

If this lapse was not enough, the Chief Justice penned a majority judgment in the Mediclinic merger case. A few rousing sermonic passages about the importance of Schedule 27 of the Constitution to a merger involving private healthcare aside (for which, bravo), the judgment fails to deal at all with the key question of whether on the facts the legal test of preventing competition had been met. The least one should demand from an apex court is a meticulous engagement with the reasoning adopted in the judgment against which the appeal is lodged. That demand is in vain in this case.

But it is not only the quality of the judgments that is in issue. The Chief Justice failed to sit in a number of cases. For years, he made eccentric acting appointments to the court. Some notable exceptions aside, there were many judges who should have acted on the court and which would have deepened the pool from whom new appointments could have been made. Taken with his chairing of the JSC, it is unsurprising that so few judges put their names up for nomination. 

Mogoeng CJ leaves the Constitutional Court in a dire situation. It has five vacancies out of a complement of 11. Although not directly his fault, the Supreme Court of Appeal is also in a precarious position as a result of retirements and equally questionable JSC appointments.

Is it surprising, therefore, that the legitimacy of the Bench is at so low an ebb? Hardly a week goes by without some controversy in the ranks of the judiciary. To be fair, much of this cannot be attributed to the retired Chief Justice. But examples such as the recent report on Judge Gayaat Salie-Hlophe which appeared in the Daily Maverick concerning her conduct in the Rohde trial, only compound the problem. Disturbing allegations are made. Needless to say, there are never consequences or, at the least, no inquiry into such alleged conduct. Given the approach of the present JSC, it is more a guarantee that the learned judge will be elevated to the Constitutional Court in the near future.

All of this supplies context for the debate about the appointment of the next Chief Justice. Thanks to Zuma, being an apartheid prosecutor, even for a short period was regarded as more important than a distinguished Deputy Chief Justice who had been the youngest political prisoner on Robben Island. President Cyril Ramaphosa owes it to the country to appoint a jurist with a record that shows intellectual and organisational commitment to the transformation of our legal system. He owes it to the nation to appoint a jurist of courage, integrity and an ability to lead the institution both by being a first among equals and by ensuring that the public regains confidence in the judiciary. 

As a key player in the drafting of the Constitution, Ramaphosa owes it to his own legacy to put aside all considerations other than the following: the criteria spelling out who is the best person. The country cannot afford another mistake. DM


Comments - Please in order to comment.

  • Cachunk Cachunk says:

    Absolutely spot on.

  • Andrew Blaine says:

    Please answer this question, “Is the President limited in his choice of Chief Justice by the nominations shortlist supplied by the JSC?

  • Jon Quirk says:

    The last line says it all; on this, and sadly on too many other matters, within, and without the Judiciary, “the country cannot afford another mistake”.

  • Lee Richardson says:

    Ramaphosa is utterly and completely spineless. He can’t even wring his hands bravely. What a disappointing coward he has turned out to be! I have less than zero faith in him to do the right thing here. Don’t forget he was involved with Mkhwebane and must have known the consequences. When everyone said Cyril wouldn’t be corrupt because he had already made his money; who knew he would substitute that for wimpy subservience

    • Fanie Rajesh Ngabiso says:

      Mr president you could do way more good for this country by backing a party of integrity.

      Have you considered leading the DA?

  • Franz Dullaart says:

    “… The country cannot afford another mistake.” Wanna bet on it?

  • J Reddy says:

    The appointment of Mogoeng as Chief Justice wasn’t a mistake; it was a calculated decision.

    • Gerrie Pretorius Pretorius says:

      A very well calculated decision to weaken the judiciary for when ‘the paw-paw hits the fan’ and really nonsensical and outright illegal judgement is required to save the anc from having to depart from the feeding trough of taxpayers’ hard earned cash.

  • Gerrie Pretorius Pretorius says:

    If, as per Andrew Blaine’s question cr has to appoint from the shortlist, the horse has already bolted. AA and anc racism has already taken care of the most competent prospect/s. Not that cr has it in him to appoint ‘the best and most competent person’ for the job. He only responds to what he as chief anc deployee is instructed to do or not to do.

  • Carsten Rasch says:

    It seems to me that we who doth protest are such a small minority, and mostly of the wrong hue anyway, that Ramaphosa can safely ignore us and our pesky opinions, objections and concerns, just he has done since taking office.

  • Helen Swingler says:

    If President Ramaphosa has any hopes of rebuilding the country, it hinges on ‘a jurist with a record that shows intellectual and organisational commitment to the transformation of our legal system’. I’m reminded of the line “There is a tide in the affairs of men…” from Shakespeare’s Julius Caesar. As one commentary said, ‘If the opportunity is missed we will find ourselves stranded in miserable shallows’. Please do the right thing, President Ramaphosa. As the writer noted, South Africans deserve a CJ of the highest calibre.

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