Three Judges President vie for Deputy Chief Justice – what are their chances?

Nearly 300 days after the position became vacant, the Judicial Service Commission (JSC) will finally convene to advise President Cyril Ramaphosa on who should become South Africa’s next Deputy Chief Justice.

From 2 to 3 July, the Judicial Service Commission (JSC) will convene interviews to help the President make this critical decision. The position has been vacant since Chief Justice Mandisa Maya assumed her role at the apex of the judiciary on 1 September 2024.

Breaking with tradition, President Ramaphosa has nominated not one but three candidates for the DCJ role: Gauteng Judge President Dunstan Mlambo, Free State Judge President Cagney Musi, and Northern Cape Judge President Pule Tlaletsi. All three will be interviewed by the JSC. A fourth nominee, Supreme Court of Appeal (SCA) Justice Mahube Molemela, withdrew.

How does each candidate fare? What may help or hinder their chances of getting the job?

The process of appointing the Deputy Chief Justice

The process requires the President to nominate candidate(s) and seek the advice of both the leaders of political parties in Parliament and of the JSC. [See more here]

The qualities of the Deputy Chief Justice

The DCJ is a leader in the judiciary and works to support the Chief Justice in their role. The qualities of a good Deputy Chief Justice include intellectual leadership, management and administrative experience, ability to build consensus through persuasion, and diplomacy. [See more here]

THE CANDIDATES FOR DEPUTY CHIEF JUSTICE

Judge President Dunstan Mlambo (66)

Why he might get the nod

Judge President Mlambo has impeccable credentials as a judicial leader. For the last 15 years, he has served as judge president of two of the busiest courts in the country – the Labour Court and then the Gauteng High Court. He is currently the most senior judge president in South Africa in terms of years of service.

Regarded by the legal profession as an innovative and savvy leader, Mlambo spearheaded the rollout of the Court Online system in the Gauteng High Court in 2020, at the height of the Covid-19 pandemic. As chair of the Judiciary’s IT committee, he has overseen the further rollout of
Court Online to seven of the nine provinces.

Mlambo is also a jurist of some standing. He has penned numerous reported judgments in labour law, refugee law, constitutional law, and human rights. He has presided over some of the biggest cases to come before our courts, including the Arms Deal review case, the NDPP Nxasana golden handshake case, and constitutional challenges to the Covid-19 lockdown.

Before moving into judicial leadership, he was a judge of the Supreme Court of Appeal and has served a brief stint as an acting justice of the Constitutional Court, and the Labour Appeal Court, which signals experience in working in teams of appellate judges.  Mlambo is no stranger to the judicial conduct process and enforcing judicial ethics. In 2020, as judge president, he filed judicial misconduct complaints against two of his fellow judges for failing to deliver judgments on time. Mlambo was also a crucial witness in a judicial conduct tribunal that found Judge Nana Makhubele guilty of gross misconduct.

Mlambo also wears the ‘diplomat’ hat often, having represented the South African judiciary on several events abroad. He currently serves as Africa Chapter president of the International Association of Refugee and Migration Judges. Closer to home, Mlambo is credited with leading one of the most collegial courts in South Africa, with a high-performance yet supportive culture among the 82 judges.

Why he might not make the cut

With jurisdiction over country’s centre of political power, the Gauteng High Court has heard many of the politically controversial cases that have found their way to the courts in recent years. Mlambo has sat in many of them due to a judicial convention that leaders take responsibility for dealing with the most sensitive, high-profile cases. This may have the rather unfair consequence of Mlambo being seen as a ‘politically controversial’ judge (if the Twitter/X page of certain political parties is anything to go by).

As the oldest of the three candidates, Mlambo’s age may count against him. If appointed, he will serve as DCJ for four years until his mandatory retirement in 2029.

In a controversial move to reduce case the five-year wait times in the  Gauteng High Court, Mlambo issued a directive to implement mandatory mediation for all civil trial matters. For this, he is being sued by law firms and their clients, who claim it is an unconstitutional power grab that violates their right to access the courts.

Judge President Cagney Musi (63)

Why he might get the nod

Of the three candidates, Judge President Musi has the distinct advantage of having spent half his life as a judicial officer. He started as a district magistrate and worked his way up to be a regional magistrate, high court judge, deputy judge president and now judge president. This offers him a unique ‘bottom-up’ perspective on the judiciary. Should he be appointed as DCJ, this perspective would be an asset in helping implement CJ Maya’s vision of a single, unified judiciary (with magistrates and judges under one roof).

A former prosecutor, Musi’s primary domain is in criminal law, where he has written several reported judgments. However, he has expanded his expertise to several other areas including constitutional law, property law, and labour law. Musi has now served for 13 years as a judge of the Labour Appeal Court in South Africa and Lesotho and has acted as a justice of both the SCA and the Constitutional Court. There he has written some important judgments, which the General Council of the Bar (GCB) says displays intellectual leadership.

Long experience in the judiciary also means Musi understands the dynamics of court administration, performance, and holding judges to account. The GCB notes that, on assuming the role of deputy judge president, Musi “took decisive steps to address a significant backlog of appeals and implementing an efficient system to extract outstanding judgments from colleagues.”

Musi is also active in training initiatives in the judiciary. He has served as a judicial trainer since 1996. This would stand him in good stead if appointed as DCJ, as he would chair the council executive committee of SAJEI, an institution he is already familiar, as he serves on its curriculum development committee.

At 63, Musi is the youngest of the three candidates. He would serve for nearly the duration of CJ Maya’s tenure (which ends in 2034, two years after Musi’s retirement in 2032). This would be good for stability.

Why he might not make the cut

As judge president, Musi has recently received criticism for allocating a relatively junior judge to preside over the Nulane case, the first state capture prosecution of the Guptas, which was harshly criticised and reversed by the SCA.

Similarly, he was embroiled in a standoff with the NPA over its request for an outside judge to preside in the asbestos trial, another state capture case involving former Free State premier Ace Magashule.

The GCB says that it is “unable to say whether Musi is able to achieve consensus among his colleagues [through the weight of his legal reasoning], as there is not enough publicly available information on this”. This factor, coupled with the fact that Musi last worked at the Constitutional Court as an acting justice in 2016, might count against his prospects for DCJ.

Judge President Lazarus Pule Tlaletsi (65)

Why he might get the nod

Judge President Tlaletsi has 22 years of judicial experience under his belt, with 13 as deputy judge president of the Labour Court and then the Northern Cape High Court.

Prior to his judicial appointment in 2003, he served 14 years in leadership roles in progressive lawyer formations (including Lawyers for Human Rights and later the National Association of Democratic Lawyers) during the turbulent 1980s, when the apartheid state was its most vicious, defending political activists in the Bophuthatswana homeland. This earned him the respect of lawyers in the profession, many of whom are judges today.

As DJP of the Labour Court, Tlaletsi was responsible for the nationwide operations of one of the busiest courts in the country, particularly its Johannesburg node. This required him to build systems for efficiency and eliminate crippling case backlogs through pioneering the recruitment of pro bono acting judges. As judge president, he oversees judicial functions in the vast Northern Cape province, albeit leading a small cohort of judges.

Over his 20-year judicial career Tlaletsi has written several important judgments, particularly in labour law, criminal law, and constitutional law. The GCB notes that, while acting as a justice of the Constitutional Court, Tlaletsi wrote three judgments on controversial social issues but in two of them he commanded large majorities, which demonstrates his intellectual leadership and ability to achieve consensus through the force of his legal reasoning.

Tlaletsi is actively involved in the leadership roles in the judiciary. He currently serves on the Judicial Oversight subcommittee of the Heads of Court, which oversees the Office of the Chief Justice (a national government department responsible for the administration of the courts). This experience will be particularly crucial in supporting CJ Maya’s vision of a single, unified judiciary that governs its own affairs.

Why he might not make the cut

With only seven judges, Tlaletsi leads the smallest high court division in South Africa, which puts him at a distinct disadvantage compared to his competitors, who have slightly more to show in terms of the leadership acumen. While the Northern Cape High Court has small cohort of judges, it grabbed attention between 2017 and 2021 for a lack of collegiality due to fierce competition over the DJP position. Thankfully, the tensions have since died down and perhaps Tlaletsi deserves credit, but it would be interesting to learn how things reached boiling point in the first place.

This is not just an administrative appointment – it will help shape the judiciary’s leadership for the next decade.

The President has the final say

While the JSC will conduct the interviews, the decision on who will be the next DCJ is ultimately the decision of the President alone. The interviews are an important step in the process.

This is not just an administrative appointment – it will help shape the judiciary’s leadership for the next decade. The next DCJ must help implement Chief Justice Maya’s vision of a single, unified judiciary, rebuild public confidence, and guide the courts through a period of transformation and reform.

Mbekezeli Benjamin is Research and Advocacy Officer at Judges Matter, a transparency project of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the judiciary of South Africa.