For five days between 1 and 5 February 2022 the Judicial Service Commission (JSC) will convene in Johannesburg to interview four candidates for Chief Justice of South Africa: Acting Chief Justice Raymond Zondo, Supreme Court of Appeal President Mandisa Maya, Gauteng Judge President Dunstan Mlambo and Constitutional Court Justice Mbuyiseli Madlanga.
Having so many candidates running for the top job in the judiciary is unprecedented and brought with it its own challenges. The JSC usually convenes in April and October of each year, so it needed to convene a special sitting for these interviews.
But the other challenge was, who would chair the JSC session? There is a vacancy in the Chief Justice post, and both the Deputy Chief Justice and President SCA are now candidates to be interviewed.
So, through a process of elimination of the judicial ‘line of succession’, the JSC settled on SCA Deputy President Xola Petse as the person who will chair the special sitting to interview the chief justice candidates.
Another kink in the chain is that section 178(1)(b) the Constitution requires the president of the SCA (or her Deputy, if she is unavailable) to also be present at JSC sittings. With the president (Justice Maya) being one of the CJ candidates, and the Deputy President (Justice Petse) chairing the sitting, another SCA judge will need to be designated to take up this position.
In terms of the section 174(3) of the Constitution, the President is required to consult the JSC when appointing the Chief Justice. In practice, this means that the President sends their nominee(s) for Chief Justice, the JSC interviews them in a public hearing, and then writes to the President informing him whether they support the president’s nominee or not. Although the President is required to consider the JSC’s advice, he is not obliged to follow it and may decide to appoint a CJ candidate whom the JSC does not support.
The rest of the JSC panel (see the full discussion of the different positions here) is as follows:
|MEMBERS OF THE JSC||CURRENT COMMISSIONERS|
|HEAD OF THE TABLE|
|1||Chairperson||Justice Xola Petse
(Deputy President: SCA)
|2||Rep. the President of the Supreme Court of Appeal||TBC|
|3||Representative of the Judges President||Judge President Monica Leeuw
(North West High Court)
|4||Minister of Justice & Correctional Development||Minister Ronald Lamola|
|5||Designated by National Assembly||Ms Nosiviwe Mapisa-Nqakula, ANC
(Speaker of the National Assembly)
|6||Designated by National Assembly||Mr. Gratitude Magwanishe, ANC
(Chairperson of Justice Committee)
|7||Designated by National Assembly||Mr Vusumzi Cyril Xaba, ANC
(Chairperson of Defence Committee)
|8||Delegates from the NCOP*||Ms Sylvia Lucas, ANC
(Deputy Chairperson, NCOP)
|9||Delegates from the NCOP||Mr Archibold Jomo Nyambi, ANC
(House Committee Chair, NCOP)
|10||Delegates from the NCOP||Mr Mosimanegape Mmoiemang, ANC
(Transport Committee Chair, NCOP)
|11||Delegates from the NCOP||Mr Thamsanqa Dodovu, ANC.
(COGTA Committee Chair, NCOP)
|12||Designated by National Assembly||Mr Julius Malema, EFF|
|13||Designated by National Assembly||Mr Narend Singh, IFP|
|14||Designated by National Assembly||Adv Glynnis Breytenbach, DA
(Justice Portfolio Committee)
|15||President’s appointee||Hlaleleni Kathleen Matolo-Dlepu,
(Practicing Attorney, Legal Practice Council)
|16||President’s appointee||Adv Thandazani Griffiths Madonsela SC
|17||President’s appointee||Ms Nomaswazi Shabangu-Mndawe
(Practicing Attorney, President: SAWLA*)
|18||President’s appointee||Ms Doris Lebogang Tshepe
|19||Practicing Advocate||Adv Dali Mpofu SC
(General Council of the Bar)
|20||Practicing Advocate||Adv Jennifer Cane SC
(General Council of the Bar)
|21||Practicing Attorney||Mr Etienne Barnard
(Law Society of SA)
|22||Practicing Attorney||Mr Mvuzo Notyesi
(Law Society of SA, President: NADEL*)
|23||A Teacher of the Law||Professor Engela Schlemmer
(Head: Wits School of Law)
This is a general description of where commissioners sit to be used as a guideline. Commissioners may switch the order of seating amongst themselves.