Explainer: On President Cyril Ramaphosa’s nomination of Justice Mahube Molemela as President of the Supreme Court of Appeal

President Cyril Ramaphosa has today announced his nomination of Justice Mahube Molemela as the next president of the Supreme Court of Appeal (SCA), which is the third most senior position in the judiciary.

This article answers some frequently asked questions about this development.

What is the significance of this development?

The Supreme Court of Appeal is the second-highest court in South Africa and hears most appeals from the high courts (by comparison, in 2020/2021 the SCA dealt with 1092 petitions compared to the 445 matters the Constitutional Court dealt with)[1]. This means the SCA’s judgments set precedent in the vast majority of cases that come before the appellate courts.
The President of the SCA is the third highest-ranking judge in the South African Judiciary.
Once confirmed, Justice Molemela will only be the second woman in the SCA’s 113-year history to become president, succeeding Justice Mandisa Maya, who became Deputy Chief Justice in September 2022.

What does the President’s nomination mean?

Section 174 subsection (3) of the Constitution gives the President the power to nominate candidates for the Top 4 leadership positions in the judiciary. These are:

1. The Chief Justice,
2. The Deputy Chief Justice,
3. The President of the Supreme Court of Appeal, and
4. The Deputy President of the Supreme Court of Appeal.

When appointing the CJ and Deputy CJ, the President is required to consult both the Judicial Service Commission and the leaders of political parties in the National Assembly in Parliament. However, when appointing the President and Deputy President of the SCA, the president only consults the JSC.

Therefore, the President’s nomination of Justice Molemela is only the first step in the consultation process.

What happens next in the process?

[1] Judiciary Annual Report 2020/2021

What follows after the President’s nomination is that the JSC will request Justice Molemela to submit a bundle of documents which include her CV, important judgments she’s written, and a statement that sets out her vision for the role of President of the Supreme Court of Appeal

Next, the JSC will request the public to submit objections or comments on Justice Molemela’s suitability for appointment.

Thereafter, Justice Molemela will sit for a public interview where members of the JSC will question her on her suitability for appointment.

Once satisfied, the JSC will advise the president of her suitability. Importantly, while the president is required to seriously apply his mind to the JSC’s advice, he is nevertheless not bound by it.

The President will then proceed to confirm Justice Molemela’s appointment, including setting the date when she will take up the position of President of the SCA.

By our estimation, this process should take the next 2 – 3 months.

What do we know about Justice Molemela?

A judge since 2008, Justice Molemela is regarded as a trailblazer in the legal profession. She was one of the first black women to establish a law firm in Bloemfontein, where she practiced as an attorney.

After joining the bench in 2008, she quickly rose to become the first woman Judge President of the Free State High Court in 2015. Since then, she also became a judge of the Labour Appeal Court, the Competition Appeal Court, and acted as a justice of the Constitutional Court.

In 2018, she became a judge of the Supreme Court of Appeal, a position she holds to this day.

Molemela therefore comes to the role of president of the SCA with a wealth of experience as a jurist and the leader in the judiciary.

Read more about Molemela here.

What other issues should we pay attention to?

Once confirmed, Molemela will be only one of two women who hold permanent leadership positions as Heads of Courts in the judiciary. This is a cause for some concern.

It means that only 2 women will sit on the 14-member Heads of Court forum, a statutory body responsible for taking important policy decisions in the judiciary (which currently has 40% women).

Judges Matter therefore calls on the leadership of the judiciary and the Judicial Service Commission to take urgent steps to bring more women onto the decision-making table.

Read more about women in judicial leadership here: 

Judges Matter is a civil society organisation that monitors the South African judiciary through research and advocacy.

For more research and analysis, visit www.judgesmatter.co.za and follow @WhyJudgesMatter on Twitter.