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JSC interviews: Any hint of the position being predeter...

Defend Truth

Opinionista

JSC interviews: Any hint of the position being predetermined will severely undermine public confidence in the new Chief Justice

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

One hopes that in debates on gender diversity in the leadership of the Constitutional Court, the country has reached its Age of Reason and that it will witness the JSC proceedings free of political stain and unswayed by the popularity of the candidates.

The day we all have been waiting for has arrived — the interviews and appointment of the next Chief Justice. With the judiciary, whose legitimacy from the viewpoint of accountability and impartiality being under constant scrutiny; and the Judicial Service Commission’s (JSC) track record of interviewing candidates under a spotlight, it goes without saying that the start of the interviews will counter-rival interest generated by the release of Part 2 of the Zondo Commission report by President Cyril Ramaphosa.

The three male judges, Gauteng Judge President Dunstan Mlambo, acting Chief Justice of the Constitutional Court Raymond Zondo, Constitutional Court Judge Mbuyiseli Madlanga and the lone female contender, President of the Supreme Court of Appeal Judge Mandisa Maya, will each have to put their best foot forward.

Different commentators and different publications have made a case for and against each of the applicants. Each of these distinguished legal eagles will have the opportunity to publicly demonstrate that they have the requisite skills and ability to secure the judicial appointment, given a fair opportunity to contest the position. 

The president did not have the luxury of a large pool from which to draw candidates for the position, but he surely will hope that the JSC avoids any hint of bungling the process and that the most talented individual will emerge to take the baton from former Chief Justice Mogoeng Mogoeng in administering the judiciary and leading the apex court, that does not appear to be without cracks on its Bench.

To borrow from Daily Maverick, “The new Chief Justice must take on the role of compassionate institutional steward to ensure that the institution remains a citadel of justice and a force capable of compelling compliance and ennobling others to fulfil their constitutional responsibilities.” 

One wishes that the country had a solid judicial transformation strategy similar to the UK’s Judicial Diversity and Inclusion Strategy 2020-2025, which tilts the scales meritoriously in favour of a candidate Chief Justice who will maintain the spotlight on the role of women judges and the need for personal and professional diversity of the judiciary.

What is so important about the UK’s 2020-2025 strategy in relation to the unfolding events regarding the Chief Justice interviews by the JSC is that it portrays the judiciary and a political landscape that holds dear the principle that “that diversity, inclusion and equality are fundamental to the rule of law and to what judicial office holders do”. 

As previously highlighted, the fairness and legitimacy of the JSC process will be put to the test, and any inkling of the position being predetermined will severely undermine public confidence in and the legitimacy of the country’s foremost defender of the Constitution. 

This Chief Justice interview marathon will mean many things to society and to many individuals. For me, these interviews remind me of the French Revolution and the ideas of the Enlightenment, when philosophers such as Jean Jacques Rousseau and François-Marie Arouet — Voltaire — challenged the thinking of French society on several issues, including diversity, inclusivity and recognition of the role women play in the society.

To a great extent, some of the decisions taken in our society have not been entirely based on reason, but rather on some dull-witted justifications. One hopes that in debates on gender diversity in the leadership of the Constitutional Court, the country has reached its Age of Reason and that it will witness the JSC proceedings free of political stain and unswayed by the popularity of the candidates.

As aptly written by the late Justice Ginsburg, in 2015, in the case of Williams Yulee v. Florida Bar 135 S. Ct. 1656 (2015), “Unlike politicians, judges are not ‘expected to be responsive to [the] concerns’ of constituents.” DM

 

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  • With reference to the the concluding comment … unless one clarifies or fully understands what ‘constituents’ entail, we are likely to remain uninformed or unconvinced. Your quest for a ‘reasoned’ approach on the appointment of CJ is likely to falter … for always there will be those who ‘contest’ that their ‘reasoning’ is better than yours ! Labeling them as ‘dull-witted’ justifications will not suffice . Your focus on ‘gender’ sensitivity/inclusivity in appointments does not answer a previous question I raised – what about those outside the male/female construct – i.e. undetermined ? Your reference to “not without cracks” already spells out how your quest is not going to be met. The fact that the original interview process (which resulted in the elimination of one female nominee) by the JSC was found to be compromised – resulting in a ‘re-run’… already introduces an element of doubt about the ‘rationality’ of the JSC operation. When certain members of the JSC can behave unconscionably in its affairs … and get away without any form of sanction (including that of the then chair), are we not expecting too much “reason” in the process ? My simple question to ALL the members of the JSC who sat through that awful first interview is “did you not consider it your personal duty and responsibility to raise objections to questions or observations you found unacceptable or uncomfortable or insulting ? ” Unless and until all JSC members uphold this ethical responsibility of accountability , your quest for a ‘reasoned’ outcome in the process is bound to flounder. While I commend your quest for an Age of Reason, developments around the globe in several spheres of endeavour, suggest (maybe social media focuses on them) an inclination in the opposite direction …. I think you appropriately called it dull-witted justifications. Especially vicious in the hands of those (unlike me) with some legal training ! BUT … we must take succour from the few examples that stand out as beacons of reason and reasonableness, in a milieu of contempt and dastardliness.

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