Who from the Constitutional Court could be the next Chief Justice?
Over the past few months, we have published a series of articles about the position of Chief Justice, including articles discussing the importance of the role of the Chief Justice, the criteria we think a Chief Justice should possess, and the process by which the Chief Justice is appointed. These articles are prompted by the fact that the tenure of current Chief Justice, Mogoeng Mogoeng, comes to an end in 2021. It is therefore timely to begin thinking about who should be chosen as the next Chief Justice, and on what basis that decision should be made.
Potential candidates for the role of the Chief Justice
In this series of articles, we discuss who some of the potential candidates are who might be chosen to be the next Chief Justice as well as various possible candidates in particular categories.
In this article, we consider potential candidates if the next Chief Justice is drawn from current judges of the Constitutional Court – arguably the most obvious category of candidates.
Since the position of Chief Justice was moved from the Supreme Court of Appeal to the Constitutional Court in 2001, Chief Justices have always been appointed from among the ranks of current Constitutional Court judges. However, not all Constitutional Court judges would have held formal judicial leadership positions, and this might be a reason why an appointment could made from a different pool of candidates. If the increasing administrative load carried by the Chief Justice is felt to make administrative experience an essential requirement, it is possible that the selection could be made from outside the pool of Constitutional Court judges.
“If the increasing administrative load carried by the Chief Justice is felt to make administrative experience an essential requirement, it is possible that the selection could be made from outside the pool of Constitutional Court judges.”
The pool of candidates from the current Constitutional Court judges
As the current “second in command” of the judiciary, it might seem the logical choice for Deputy Chief Justice Zondo to be the next Chief Justice. However, there are several reasons why this is not guaranteed. First, it has not been the recent practice for the Deputy Chief Justice (DCJ) to succeed the Chief Justice automatically. The two previous appointments as Chief Justice, Justices Ngcobo and Mogoeng, were appointed ahead of then Deputy Chief Justice Dikgang Moseneke. This may more than anything have been due to an extraordinary unwillingness to elevate Justice Moseneke to the position, rather than a principled decision not to appoint the Deputy Chief Justice. Second, DCJ Zondo would only have around 3 years of his tenure remaining if he were appointed, and it might be felt that the new Chief Justice needs to spend a longer time in the job. Whilst Chief Justice Ngcobo only served for two years as Chief Justice, Chief Justice Mogoeng will have served as Chief Justice for 10 years. A similar approach to that taken in the appointment of Justice Mogoeng would seem to count against the appointment of DCJ Zondo. Third, DCJ Zondo’s role as the chair of the State Capture commission of inquiry may well have an impact on the political considerations of his appointment, although it is difficult to assess how this is likely to play out.
DCJ Zondo is certainly an experienced jurist. He was first appointed as a judge of the Labour Court in 1997 and was Judge President of the Labour and Labour Appeals courts from 2000 – 2010. He has been a judge of the Constitutional Court since 2012 and was appointed as Deputy Chief Justice in 2017. Having served as Judge President of the Labour Court and as Deputy Chief Justice, he has extensive judicial leadership experience, although concerns have been raised about the administration of the Labour Courts under his leadership. ]
As a jurist, DCJ Zondo is regarded as one of the most influential figures in the development of South African labour law. As a judge of the Constitutional Court, he wrote significant judgments in Democratic Alliance v African National Congress, where in a dissent from the majority of the court, he found that the DA had breached the Electoral Act by sending a bulk SMS following the release of the Public Protector’s “Nkandla” report stating that former President Zuma had stolen money “to build his R 264m home.” In Minister of Home Affairs v Tsebe, he upheld a decision by the high court to prevent the government from extraditing a murder accused to Botswana without receiving an assurance that the death penalty would not be implemented. Perhaps most famously, he wrote the Constitutional Court’s decision in the 2018 case of Minister of Justice and Constitutional Development v Prince, which allows cannabis to be used, possessed or cultivated in a private place for personal consumption. DCJ Zondo has also shown himself to be independent minded by regularly writing dissenting judgments.
When the tenure of Justices Khampepe, Jafta and Mogoeng comes to an end in 2021, Justice Madlanga will become the most senior judge on the Constitutional Court after DCJ Zondo. A highly regarded jurist, he is likely to be in consideration for leadership positions, if not for the imminent vacancy of the Chief Justice position, then certainly in future.
Justice Madlanga’s judicial career spans two parts. He was at the time the youngest judge to be appointed to the South African judiciary when he was appointed to the High Court in Mthatha in 1996. He was clearly marked for greater things even at the early stage of his judicial career, as he served as an acting justice of the Supreme Court of Appeal between 1998 – 1999, and as an acting justice of the Constitutional Court between 2000 – 2001. However, he retired from the judiciary in 2001 due to the financial demands of bringing up a large family, putting young children through school, and servicing a mortgage bond. After a successful career practising as an advocate, he was appointed to the Constitutional Court in 2013. Justice Madlanga has some judicial leadership experience, having acted as the Judge President of the Mthatha High Court during his first stint as a judicial officer.
Justice Madlanga has written several important judgments, including Helen Suzman Foundation v Judicial Service Commission, which found that the record of the JSC’s deliberations should be disclosed in a review application, and Gaertner v Minister of Finance, which declared provisions of the Customs and Excise Act which allowed for searches to be conducted without a warrant to be unconstitutional. He also wrote the judgment in DE v RH, which abolished claims for damages for adultery in South African law.
Justices Nonkosi Mhlantla and Leona Theron
Justices Mhlantla and Theron were profiled in our article on potential women candidates for the next Chief Justice. Both are judges of the Constitutional Court, and so would also potentially come into consideration under this category.
The two remaining permanent justices of the court, Justices Majiedt and Tshiqi were both appointed in 2019. Although both are very experienced judges, having served for around 10 years each on the Supreme Court of Appeal prior to their appointment to the Constitutional Court, it is unlikely that they would be considered for appointment to the role of Chief Justice after such a short time on the Constitutional Court. Neither has held a permanent judicial leadership position, which would also seem to make them unlikely to be considered.