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There is no room for error in the appointment of South Africa’s Chief Justice

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Judith February is a lawyer and author of ‘Turning and Turning: Exploring the Complexities of South Africa’s Democracy’ (PanMacmillan)

Appointment of the country’s top judge will be one of President Cyril Ramaphosa’s most important acts.

When former president Jacob Zuma overlooked then Deputy Chief Justice Dikgang Moseneke and appointed Mogoeng Mogoeng as Chief Justice in 2011, it was a distinct attempt to capture the judiciary.

Moseneke with his intellectual heft and independence of mind represented the “clever blacks” whom Zuma famously mocked. As Chief Justice, he would have posed a significant threat to Zuma’s constitutional delinquency. Moseneke’s judicial record speaks for itself and he always possessed the gravitas, temperament and ethical compass to lead the Constitutional Court.

That Mogoeng followed in the footsteps of Ismail Mohamed, Arthur Chaskalson and Pius Langa was, to many, a travesty, but it was reflective of the slide to mediocrity under Zuma. A rather more rudimentary thinker, Mogoeng would be a man after Zuma’s heart. That turned out to be a miscalculation on Zuma’s part. In the Nkandla judgment, Mogoeng grasped the political moment, perhaps more so because he understood the ethics of the moment and how important it was that the head of state be held to account.

To his credit – and at a crucial time for the undergirding of the rule of law – Mogoeng did not flinch, even in the face of immense political pressure. Courts, after all, are not immune from ordinary pressures and judges do not live in ivory towers, even as the law is often a lonely pursuit.

In the unanimous judgment of the Constitutional Court in the Nkandla matter, Mogoeng admirably outlines what kind of state the Constitution envisaged. He starts by outlining how South Africa adopted “accountability, the rule of law, and the supremacy of the Constitution”. He goes on to state how this applies to public representatives, the President in particular.

The ConCourt itself and his management of it has been suboptimal. What was brought into stark relief recently is that Mogoeng was also an ineffective leader of the Judicial Service Commission (JSC).

JSC hearings have been uneven and lacked the thoughtfulness one would expect from such a body. It has dragged its heels with regard to the complaint relating to the misconduct of John Hlophe, the judge president of the Western Cape.

The way in which the JSC conducts itself directly affects the quality of the judiciary. The JSC is only as strong as its members and their commitment to integrity and independence. Its composition is complex and was an attempt by the drafters of our Constitution to ensure transparency and inclusivity.

That many of the commissioners appear to have a weak grasp of what is required in interviewing candidates makes it difficult for meaningful questions to be asked. Being able to engage fully with candidates’ judgments is surely intrinsic to the process?

It also begs the question whether the time has not come for a set of rules to govern these JSC interviews. These rules could provide guidelines as to when the chair ought to step in and ensure that questioning is appropriate in tone and content.

Candidates would be able to invoke protection via the rules if they believed they were victims of egregious questioning, such as when Griffiths Madonsela SC questioned whether a candidate’s observation of the sabbath would interfere with his judicial duties.

Rules would provide parameters even while encouraging in-depth and intellectually flexible questioning. These rules would include criteria that would need to be met by candidates for judicial appointment. At present, the process is somewhat randomly thrown together, subject to individual commissioners’ rather obvious prejudices.

Add to this the recent JSC “do-over hearings” after the Council for the Advancement of the SA Constitution (Casac) challenged the constitutionality of interviews that saw esteemed lawyers such as David Unterhalter and Alan Dodson not making the cut, and one is left concerned for the future of the judiciary.

While the tenor of these interviews was markedly different, Dali Mpofu saying that Unterhalter’s whiteness was “the elephant in the room” was surely a low point.

The administration of justice depends on the credibility of those who adjudicate. And, despite concerns, the overwhelming majority of our judicial officers do their jobs with integrity and independent mindedness. The judiciary has been an effective bulwark against impunity and so it is no surprise that it has been in the line of sight of the powerful. The President has far more power in respect of the Chief Justice appointment than other judicial appointments.

President Cyril Ramaphosa did what he does when a tricky decision comes his way – he creates a consultative process. It seems as if he did so to avoid being the only one at whom daggers could be drawn should the decision on the next Chief Justice be an unpopular one. It is clear that there are those within his party and other forces within our society who would benefit from a captured, compromised judiciary. They are the ones who call judges who make unpopular decisions (albeit ones based in law and fact), “counter-revolutionaries”.

Ace Magashule and Julius Malema, for instance, are well-versed in attacking the courts even while using them to fight their own battles.

A list of eight names of candidates for Chief Justice was released. It includes Judge President Hlophe and Public Protector Busisiwe Mkhwebane. Wallace Mgoqi, AYO chair, has also been nominated. There were 25 names put forward and out of them, only eight (yes, eight) met the criteria set out in the call for nominations by the President. These were:

  • A nomination letter;
  • The nominee’s acceptance of the nomination and their contact details;
  • Letters of support for the nomination; and
  • Any additional documentation that the person nominating the candidate for Chief Justice deems relevant.

The Presidency’s statement said that the nominating panel, chaired by Justice Navi Pillay, “assessed and scrutinised all submissions” and the eight met the above criteria.

These criteria are deeply, deeply flawed. The process should have included far weightier criteria than the mere administrative ones set out. It has meant that Hlophe and Mkhwebane find themselves on the list.

There is diminished legitimacy attached to the process now that Hlophe and Mkhwebane are on the list.

Mkhwebane has a tenuous grasp of the law, is responsible for squandering public funds as she fights factional battles in our courts and has single-handedly emasculated the Public Protector’s Office.

On Hlophe, how does someone who has been found guilty of gross misconduct become a worthy candidate?

Politics remains part of the equation and Ramaphosa will be comfortable with this because it will indicate to his political foes that he has not prejudiced these two compromised individuals. Although it may be politically expedient for Ramaphosa, this has damaged the credibility of the process in the public’s mind. At the very least, those guilty of ethical misconduct should have been disqualified in the same manner as those who did not file proper documentation.

There are other solid candidates on the long list for Chief Justice. One cannot help but think that Justice Dunstan Mlambo and Justice Mandisa Maya are the frontrunners.

Objections have been received as the process demands, but the objection by Arthur Fraser to Deputy Chief Justice Raymond Zondo’s candidacy is not without irony.

The work of the panel will be crucial from now onwards. The scrutiny will be intense, as it should be. It “will decide how best to openly, transparently and expeditiously compile the shortlist”, according to the first statement from the Presidency.

The panel will need to take extra care and ensure it remedies public suspicion and that those on the shortlist are jurists of unimpeachable integrity who have the intellectual heft to head up the judiciary. There is no space for missteps. DM168

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

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All Comments 4

  • I wonder what will happen should cr appoint jh. It could happen in this banana republic of SA which is without a real political leader.

  • As a layperson, February’s analysis sheds light on some of the shortcomings of the ‘process’ followed in the appointment of judicial officers. My simple question is “what is being done and by whom to address these shortcomings?” Based on her analysis, the question I have is “why do some of the members of the JSC who have some integrity, not unambiguously object to the frivolous and outlandish assertions made by the likes of Malema and Mpofu?”. The latter in particular has the audacity to make outrages claims/comments … and nobody including judges (or chair of the JSC) seem prepared to ‘take him to task’ for such egregiousness ! The consequence is the ‘continuation’ of the grandstanding by this individual on entirely specious grounds. The ‘dissenting’ judgement by two of the nine CC judges recently, is an indicator of the manner in which ‘corruption’ if not capture of our judiciary is moving. The less said about the two compromised and obnoxious nominees … the better ! The one obviously meets the ‘gender’ (only) criterion of Prof. Sibanda’s motivation for a CJ – unappetising and frivolous as this specific instance might be.