A “democratic process” for the appointment of the next Chief Justice

President Ramaphosa’s testimony at the Zondo Commission on State Capture on 11 August 2021 raised a lot of controversy in relation to several issues, including the appointment of judicial officers. During his testimony the President suggested that perhaps a “democratic process” should be followed in the appointment of judicial officers. He went further and added that such a “democratic process” should be followed in the appointment of all judicial officers. This testimony was in the context of the ANC’s Deployment Committee making recommendations of judges to be appointed to the Constitutional Court, the Supreme Court of Appeal and to a provincial judge president position.

However, during the President’s testimony, Acting Chief Justice Zondo noted that there should be transparency whenever the appointment of judges is discussed. Such discussions should properly be had at the Judicial Service Commission (JSC) and cannot be held in “dark corners” of Luthuli House (the ANC headquarters), Zondo added.

“…there should be transparency whenever the appointment of judges is discussed. Such discussions should properly be had at the Judicial Service Commission (JSC) and cannot be held in “dark corners” of Luthuli House (the ANC headquarters), Zondo added.” – Acting Chief Justice Zondo

In response, the President was quick to add that in certain instances in the recent past, he has applied transparency in appointments. President Ramaphosa cited the example of when he was due to appoint the National Director of Public Prosecutions (NDPP). The President stated that out of his own accord, and resisting the temptation to make a unilateral appointment, he decided that he would open the appointment process, that there would be nominations and a public interview process, and only thereafter would he make the final appointment. This was a new process in respect of the appointment of the NDPP. We imagine that this is the “democratic process” Ramaphosa was referring to. On conclusion on this point of his testimony, the President hinted that perhaps such an open and democratic process is best suited for the appointment process of judges – which would presumably include the appointment of the next Chief Justice.

An open and democratic process for the appointment process of judges

“In terms of section 174(3) of the Constitution, “[t]he 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”.”

The Constitutional provision for the appointment of the NDPP is similar to that of the appointment of the Chief Justice. In both processes the prerogative on the person to be appointed rests solely on the President. In terms of section 174(3) of the Constitution, “[t]he 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”. (Read more about the current appointment process of the Chief Justice here.) In terms of  section 179(1)(a) read with section 10 of the National Prosecuting Authority Act, “[a] National Director of Public Prosecutions, who is the head of the prosecuting authority,… is appointed by the President, as the head of the national executive.” It therefore stands to reason that if the President was able to detract from the previously closed appointment process for the NDPP, and opt for an open and transparent process, the same can be done for the appointment process of the next chief justice. If a “democratic process” was best suitable for the appointment of the NDPP, then surely it would also be suitable for the appointment of the next chief justice.

The process that might be followed in appointing the next Chief Justice

In our view, President Ramaphosa must break with the past and follow an open and consultative process in the appointment of the next chief justice, akin to the “democratic process” he followed in the appointment of the NDPP. We recommend that the President establish an advisory body made up of eminent people with stature, utmost integrity and who would unify South Africans around the values and qualities we should all expect from the country’s next top judge. This advisory body would draw up a shortlist of no more than three candidates who would then be forwarded to the JSC for public interviews, and the President would then consult leaders of political parties in the National Assembly. The ultimate candidate to emerge from such a process must be a person who embodies the qualities of integrity, intellectual leadership, diplomacy, and administrative ability which are necessary characteristics to be embodied by a Chief Justice. (Read more here).

Chief Justice Mogoeng will not return after his sabbatical leave, meaning his term of office has effectively ended. It would be untenable for the new Chief Justice not to start their term of office on 1 November 2021. Time is of the essence!