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Process for appointing the Chief Justice

Process for appointing the Chief Justice

Process for appointing the Chief Justice

As we noted in our previous article, the tenure of the current Chief Justice, Mogoeng Mogoeng, comes to an end in late 2021. It will therefore soon be time to start considering who should be appointed as the next Chief Justice.

Judges Matter has considered many aspects of the importance of the role of the Chief Justice [Also found here on Daily Maverick] and the numerous qualities that a potential Chief Justice should possess. In this article, we discuss the process that is followed when a new Chief Justice is appointed.

The role of the President and the JSC in the appointment of the Chief Justice

For the appointment of most judges, the Judicial Service Commission (JSC) plays a central role. All judicial appointments, other than Constitutional Court judges and the leadership of the Constitutional Court and Supreme Court of Appeal, are made by the President “on the advice of” the Judicial Service Commission (JSC). In practice, the President is bound by the JSC’s advice, and so the JSC effectively makes the appointments to the Superior Courts.

For appointments to the Constitutional Court, the President appoints judges from a list of candidates provided by the JSC. This list must contain three names more than the number of vacancies – so if there is one vacancy, four names must be sent to the President; if there are two vacancies, five names must be sent to the President, and so on…

“The process for appointing the Chief Justice differs significantly [from the appointment of other judges] and gives the President much more power than is the case in the appointment of other judges.”

The process for appointing the Chief Justice differs significantly and gives the President much more power than is the case in the appointment of other judges. Section 174(3) of the Constitution provides that the President, as head of the national executive (which means with the support of cabinet), after consulting with the JSC and leaders of the political parties represented in the National Assembly, “appoints the Chief Justice.”

The process for appointing the Deputy Chief Justice is the same, whilst the appointment of the President and Deputy President of the Supreme Court of Appeal is largely similar, although the President is only required to consult with the JSC, and not with leaders of political parties. In practice, the JSC’s role in this consultation has been to conduct a public interview with the candidate, as is done for all other potential judicial appointments, and then to advise the President on the candidate’s suitability for the position.

 “Whilst the President is required to consult… the President is not bound to follow the input received from other political leaders, or even from the JSC itself.”

The President thus has far more discretion in choosing the Chief Justice than with other judges. Whilst the President is required to consult, and that consultation must be a meaningful one where the views expressed are seriously taken into account, the President is not bound to follow the input received from other political leaders, or even from the JSC itself.

A review of previous Chief Justice appointments

This process might seem to be simple and straightforward. And yet the two most recent appointments of a Chief Justice – that of Chief Justice Ngcobo in 2009 and Chief Justice Mogoeng in 2011 – have both attracted controversy in respect of the procedure followed. In 2009, then – President Jacob Zuma stated that he had “appointed” Justice Ngcobo as Chief Justice, prior to having consulted political leaders or the JSC. This was clearly not the correct procedure, and the Presidency subsequently clarified that the required consultations were to take place prior to a formal decision being made.

When Justice Mogoeng Mogoeng was put forward as candidate for Chief Justice in 2011, debate arose as to whether or not more than one candidate could be considered. There was mixed historical precedent on this point. Justices Langa, Ngcobo and Mogoeng had all been the only candidates considered for appointment as Chief Justice. However, in 1996 nominations were called for, and two judges were nominated and interviewed for the position – Ismail Mahomed and Hendrik van Heerden. Justice Mahomed was then appointed as Chief Justice.

In his recently published memoir All Rise, former Deputy Chief Justice Moseneke recounts how in 2011 he had been approached to be nominated as an alternative candidate to Justice Mogoeng. Justice Moseneke declined the invitation, commenting that the law is clear in giving the President the “right and prerogative” to appoint the Chief Justice, and that “it would have been as silly as it would have been futile to put up nominations other than the president’s.” (All Rise, page 220).

Justice Moseneke is doubtless correct about the futility, in that instance, of putting up another candidate against the one nominated by the president. Considering the furore surrounding the nomination of Justice Mogoeng, it may have been very damaging for the judiciary for the position to be contested.

Should we consider more than one candidate?

But it is worth considering whether it is always the case that only considering one candidate is desirable. In an opinion written for the organisation Freedom Under Law following the president’s nomination of Justice Mogoeng Chief Justice, Advocates Jeremy Gauntlett, Max du Plessis and Andreas Coutsoudis commented on the JSC’s decision that it was “not permissible or desirable” to call for further nominations. The advocates argued that this approach suggested

“that the JSC has already accepted – even if only at a prima facie level – the President’s nominee, and hence closed its mind (and the process) to alternatives.”

The opinion endorsed the argument of then Gauteng Deputy Judge President Phineas Mojapelo that not inviting further nominations deprived the JSC process of “an important element of legitimacy, that is, public participation at its initial stages.” The advocates argue that, whilst the JSC may not be under a legal obligation to call for further nominations, “there must be a right for political parties consulted to suggest alternative nominees”, and that this would oblige the JSC to interview, or at least consider such nominees in shortlisting the candidates to be interviewed.

The question of whether multiple candidates can be considered is one issue about the process of appointing the new Chief Justice which is unsettled and may become the subject of contestation. There are arguments for and against both positions. Having only one candidate is consistent with the most recent practice and prevents a scenario where the president’s discretion to appoint, and the candidacy of prospective new chief justice, are undermined. Having more than one candidate does have some support from the 1996 practice described, and arguably allows for better decision-making by weighing up the merits of different candidates. This may be an important consideration in light of how complex the position of chief justice has become, and the wide range of qualities which a prospective chief justice ought to have.

Furthermore, if only one candidate is considered, a scenario can be imagined where something about that candidate emerges, say during the interview process, which is so damaging they are no longer considered suitable for appointment. With one candidate, the process would have to begin again. If other candidates were being considered, one of them may still be appointed without the process being restarted.

What process will President Ramaphosa follow when choosing the next Chief Justice?

President Ramaphosa has shown signs of following both types of process so far in his presidency. The appointment of Shamila Batohi as National Director of Public Prosecutions was preceded by interviews of multiple candidates by an advisory panel. However, when in 2019 he appointed Justice Xola Petse as Deputy President of the Supreme Court of Appeal (a procedure which, as described above, is substantially similar to the appointment of the Chief Justice), President Ramaphosa nominated and then appointed only one candidate.

We have seen that, if multiple candidates are to be considered, there are different ways in which this could be done. The JSC could put out a call for additional nominations, and leaders of political parties could be invited to nominate candidates. Whichever approach is taken, one thing must remain constant – any candidate must be subject to in-depth, rigorous scrutiny, to ensure that whoever is eventually appointed is the best chief justice possible for South Africa.


One Comment

  1. Avatar
    Oct 4, 2020

    There is a judicial battle taking place right now between two very different visions of what kind of judiciary we want to have and what values should shape the future of the Judiciary in South Africa. Will the judiciary walk the path of reactive, regressive change as is evidenced in the saga caused by the unfortunate events that befell Judge Motata and Judge Hlophe’s disciplinary tribunals where left-brain thoughts seem to have afflicted our judicial leadership or the path of proactive, progressive change where ethical considerations and Constitutional imperatives feature prominently in each judgement contemplated by any court and is strictly governed by Section 39 of the Constitution.This is an indictment which so far has not been appropriately responded to by the national judicial leadership of this country in that the Constitution envisages that a progressive judicial ecosystem be nurtured and be intact.The judiciary has so far not risen like a phoenix from the ashes of Apartheid.Judicial officers have yet to live in an environment characterized by collegial self-love where there is judicial empowerment that instill confidence in their judicial craft Shoudn’t the Criminal Procedure Act be amended to make it empirical and an obligation to strictly apply the judicious criminal procedures suggested by judicial decisions like Tshabalala judgement on the elusive issue for the magistrate judiciary on how to employ to judicial adjudication evidence which was obtained unconstitutionally obtained and the Constitutional Court’s judgement on private usage of marijuana?The Magistrate Court judiciary needs these proposed amendments to the Criminal Procedure Act to force magistrates to be the judicial officers that they claim deserve to be.
    Further South Africa as a constitutional democracy does not deserve a revised “Black or Bantu Administration Act “ phrased in the guise of Traditional Court’s Bill to apply in the areas where Africans where forcibly removed or restricted to by the Group Areas Act.There is no area in South Africa that is inhabited by people of one monogamous tribal group speaking one common language.Genuine and deserving tribal chiefs and kings were deposed and replaced by Apartheid stooges. The forced removal agents appointed in terms of the Group Areas Act effected unjust evictions solely on colour of one’s skin.These evictions did not care to establish whether a Black person is a Motswana,Umzulu,Xhosa and never dared distinguishing to what language,tribe,cultural group a black evictee belonged to.You find in Khayakhulu,Sefikile and Ledig and Mahikeng villages in the Northwest province miscellaneous groups of people living in a tribal area headed by a chief.The last time I checked the chairman of The House of Traditional Leaders in Northwest is a Hlubi chief yet Hlubi language like Khoisan is not a constitutionally recognized official language in South Africa.
    The unfortunate Traditional Courts Bill seeks albeit in a judicially vulgar fashion to legitimize and implement the dreaded topic of “conflict of laws” that is necessitated by the constitutional equality brought about by Section 211 of the Constitution “putting “ customary law on the same footing as the Roman-Dutch laws and/or English laws in South Africa.This “conflict of laws” is a daily headache that should be troubling any judicial officer in South Africa worth his or her salt.It begs a judicial officer to offer a unique global solution when confronted by issues that were raised by King Dalindyebo in his abortive putative defence that he was executing his judicial function as a chief by meting corporal punishment to his subjects(according to customary law) but victims(in terms of Roman-Dutch law).According to me this is a thorny constitutional issue which the present judiciary seeks to conveniently avoid despite Judge Yvonne Mokgoro in her inaugural Constitutional Court’s judgement having innovatively applied this “conflict of laws” approach in S v Makwanyane.Judge Mokgoro reflected competently on implications of social context to judicial adjudication.To me she reflected on broad social and economic inequalities that exists between whites and blacks,rich and poor,young and old ,normal people and people living with diabilities.She was conscious of gender disparities and touched on the need to take into account the different viewpoints and perspectives based on the experiences and opportunities of those in whose judgement she sat.She felt the heartbeat of those who might have had biases,stereotypes that can operate in the process of judicial decision making.She felt the need to give recognition to the diversity of our people.She prophesied that diversity ought to be celebrated as it helps to construct society in which differences or diversity is not tied to prejudice,assumptions,presumptions but be affirmed and celebrated.This approach should be an effective tool that needs to be placed ,by force if need be,in the hands of judges ,magistrates,tribunals and quasi judicial incumbents to help them address the past and present inequalities and unfair discrimination.The judiciary should decode its thoughts so that nobody would be in a position to predict what a presiding officer would say and do ahead of the case been formally head in an open court.Deputy Chief Justice Zondo lamented as follows “[218] I have read the third and fourth judgments here. I agree with the fourth and disagree with the third judgment. The divergence of views in this matter flows solely from different interpretations assigned to section 89 of the Constitution. This is not novel. It happens frequently in courts presided over by panels of Judges. But what is unprecedented is the suggestion that the construction of the section embraced by the majority here constitutes “a textbook case of judicial overreach.” The suggestion is misplaced and unfortunate.
    [219] Conceptually it is difficult to appreciate how the interpretation and application of a provision in the Constitution by a court may amount to judicial overreach. The Constitution itself mandates courts to interpret and enforce its provisions. The discharge of this judicial function cannot amount to overreach whether one agrees or disagrees with a judgment that construes and applies the Constitution in a particular way”This is an illustration of the lively judicial exchanges that took place in our apex court between the Chief Justice Mogoeng Mogoeng and the Deputy Chief Justice Raymond Zondo
    about the interpretation of a section of the Constitution which ought to be done in terms of section 39 of the Constitution where section 2 of the Constitution is born in mind when tackling what seems to be threatening the doctrine of the separation of powers. Section 2 entrenches the doctrine of the rule of law which to me supercedes the doctrine of the separation of powers. But the opposition parties cannot be seen to be vetoing the will of the majority by trying to govern through court cases. The Chief Justice wanted to ventilate this view but could not back it up with the proper construction of the Constitution hence his minority judgement was labelled ” misplaced and unfortunate”

    This should seek to confront the notion that the nation knows precisely what the the judgement of Chief Justice Mogoeng Mogoeng might be on freedom of religion,religious intolerance and judicial functions of tribal authorities.It is an open secret that his background as a small town lay preacher of Christian faith sets constraints,fetters and limits to his vision on freedom of religion and tribal judicial thrones.Those on the bench should be aware of diversity,know people’s experiences and should not be dictated to on what to do,how to do it or which sentences to impose.The basic instruction is not to feel threatened but work without fear,favour or prejudice.
    Judge Mokgoro in her judgement in S v Makwanyane found that the ethical basis of Ubuntu dictates to judicial officers on what is right or wrong as it is a broad-based value system that speaks to the the core of human identity and existence inherent in all human life.A competent judicial officer should contemplate on the benefits and side effects of his judgement not only on society but on his professional life.Impact analysis where a judicial officer reflects on the impact that his judgements has on the triple bottom line of social,environmental and economic fabric of society where sustainable development is intergrated into jurisprudence should form a compulsory component of the judgement-making training offered by the South Africans Judicial Education Institute to newly appointed judicial officers.

    Judge Mokgoro employed Ubuntu as an instrument she used to interpret the law in a social context to blend the core values of Ubuntu with similar values inherited from the common values shared by all the inhabitants of South Africa and the universe.Ubuntu and social context should be used to enhance social cohesion and to develop our social infrastructure.Ubuntu contributes to the shared values and core competencies in the make up of a good jurists.Ubuntu encourages that emphasis be placed on duties towards others,warmth,empathy,commitment to service delivery and communication in the exercise of duties assigned to us.The values that a judicial officer can harvest from Ubuntu are :
    1. Honesty and trustworthiness
    2.Impeccable integrity ,reliability and the ability to withstand the temptation to do something irregular or dishonest for personal gain.
    3.A sense of equity and fairness to enable a judicial officer to act impartially and exercise good judgement.Equity refers to the application of the general law to an individual case in such a manner that justice prevails
    4.Objectivity in adjudicating disputes means that no irrelevant considerations should be brought to bear upon your judgements.A judicial officer should be blessed with keen logical sense.In conclusion a judicial officer should be able to recognize own disposition,preconceptions,subjectivity to master the art to block out own personal emotions when distinguishing between facts and fiction.

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