JUDITH FEBRUARY: The choice of SA’s new Chief Justice is a high-stakes game

OPINION

State capture has consequences. When former President Jacob Zuma overlooked then Deputy Chief Justice Dikgang Moseneke and appointed Mogoeng Mogoeng as Chief Justice, it was a distinct attempt to capture the judiciary.

Moseneke - with his intellectual heft, independence of mind and acumen - represented the ‘clever blacks’ whom Zuma so famously mocked. As Chief Justice, Moseneke would have posed a significant and obvious threat to Zuma’s constitutional delinquency. Moseneke’s judicial record speaks for itself, and he always possessed the gravitas, temperament and ethical compass to lead the Constitutional Court.

That Mogoeng followed in the footsteps of Ismail Mohamed, Arthur Chaskalson and Pius Langa was, to many, a travesty. But Mogoeng was reflective of the slide to mediocrity under Zuma. A rather more rudimentary thinker, Mogoeng would be a man after Zuma’s heart. That turned out to be a miscalculation on Zuma’s part.

In the now well-known Nkandla judgment, Mogoeng grasped the political moment, perhaps more so because he understood the ethics of the moment and how important it was that the head of state be held to account. To his credit and at a crucial time for the undergirding of the rule of law, Mogoeng did not flinch, even in the face of immense political pressure. Courts, after all, are not immune from ordinary pressures and judges do not live in ivory towers, even as the law is often a lonely pursuit.

In the unanimous judgment of the Constitutional Court in the Nkandla matter, Chief Justice Mogoeng Mogoeng admirably outlined what kind of state the Constitution envisaged. He starts by outlining how South Africa adopted “accountability, the rule of law, and the supremacy of the Constitution”. He goes on to state how this applies to public representatives, the President in particular, when he says, ‘“For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.”

This vivid language has come to pepper Mogoeng’s judgments.

Mogoeng’s more recent statements on Israel, which led him to call the Judicial Conduct Committee, “narrow-minded, flawed and superficial” after it ordered him to apologise for statements made about the relationship between Israel and South Africa, and his comments on the COVID-19 vaccine have raised eyebrows.

Mogoeng has also been responsible for some rather conservative judgments, the most recent the dissenting judgment in Centre for Child Law v Director General Department of Home Affairs. Recently he referred to our country as being “bewitched” and has made comments which could be construed as anti-vaxx and which indicate a deep suspicion of science and progress.

The ConCourt itself and his management of it has been suboptimal.

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What was brought into stark relief recently is that Mogoeng was also an ineffective leader of the Judicial Service Commission (JSC). It has dragged its heels with regard to the complaint relating to the misconduct of Judge President of the Western Cape, John Hlophe, for instance. JSC hearings have been uneven and lacked the thoughtfulness one would expect from a body such as this.

We do need a broader discussion about the JSC and its composition and the way in which it conducts itself directly affects the quality of the judiciary. The JSC is only as strong as the individual members and their commitment to judicial integrity and independence. Its composition is complex and was an attempt by the drafters of our Constitution to ensure transparency as well as inclusivity. That many of the commissioners appear to have a weak grasp of what is required in interviewing potential candidates, makes it difficult for meaningful questions to be asked. These would include serious questions of legal philosophy and interpretation. Being able to engage fully with candidates’ judgments is surely intrinsic to the process?

Yet, we have repeatedly seen Julius Malema behaving poorly. It is also worth recalling Advocate Madonsela SC asking whether a candidate’s (Lever SC) observation of the sabbath would interfere with his judicial duties. Lever SC responded that he didn't observe sabbath, but he always performed his duties as required and the same would be true for judges of other religious persuasions.

That Mogoeng did not interject and object to this line of questioning was revealing and completely untenable. South Africa is a constitutional democracy where freedom of religion is sacrosanct. The undertone in the question was of religious intolerance and an almost casual anti-constitutional sentiment. There are many more examples of inappropriate and ignorant questions being posed by members of the JSC.

It also begs the question whether the time has not come for a set of rules to govern these JSC interviews. Those rules would relate to the tone of questioning, but could also provide guidelines as to when the chair ought to step in and ensure that questioning is appropriate in tone and content. This will require some nous on the part of the chair, but will also ensure that the candidates are able to invoke protection via the rules if they believe they are victims of egregious questioning.

Surely Madonsela SC’s question would have fallen into that category? Rules would provide some parameters, even while encouraging in-depth and intellectually flexible questioning. These rules would include criteria which would need to be met by candidates for judicial appointment. At present, the process is somewhat randomly thrown together, subject to individual commissioners’ rather obvious prejudices.

Add to this the recent JSC do-over hearings (after the CASAC litigation forced it in the following matter), where esteemed lawyers such as David Unterhalter and Alan Dodson did not make the cut and leaves one concerned for the future of the judiciary. While the tenor of the interviews was markedly different this time, Dali Mpofu saying that Unterhalter’s whiteness was “the elephant in the room” was surely a low point, though with Mpofu that might be tricky to assess.

Yes, Unterhalter is white. The comment draws one to the inexorable conclusion that there is no place for white men on the highest court. Yet another South African ‘own goal’. It also relies on the flawed assumption that only black judges can be committed to progressive constitutionalism. The need for diversity on the bench is obvious and an unassailable need. But, more importantly, diversity and non-racialism are important constitutional values which appear to have been side-lined.

One had to feel sympathy for the candidates having to subject themselves to questioning by Malema and Mpofu. The deep irony is that both men are themselves so compromised that they can hold no moral authority in this or any forum. We recall Mpofu’s unacceptable conduct in relation to his colleague, Michelle Le Roux at the Zondo Commission.

The administration of justice depends on the credibility of those who adjudicate. These individuals should be people of unimpeachable integrity, intellectual heft, independence of mind, committed to progressive constitutionalism and those able to uphold the dignity of the judiciary. The Bench should also be reflective of South Africa’s richness of diversity. The time has also come for more stringent, transparent criteria for appointment to the Bench.

Despite concerns about the quality of some judicial appointments (or, non-appointments), it has to be said that the overwhelming majority of our judicial officers do their jobs with integrity and independent mindedness. The judiciary has been such an effective bulwark against impunity and so it is no surprise that it has been in the line of sight of the powerful.

The President has far more power in respect of the Chief Justice appointment than other judicial appointments. President Ramaphosa did what he does when a tricky decision comes his way, he creates a consultative process. It seems as if he did so to avoid being the only one at whom daggers could be drawn should the decision on the next Chief Justice be an unpopular one.

It is clear that there are those within his party and other forces within our society who would benefit from a captured, compromised judiciary. They are the ones to call judges who make unpopular decisions (but ones based in law and fact), ‘counter-revolutionaries’. Ace Magashule and Malema, for instance, are well-versed in attacking the courts even while using them to fight their own battles. Usually, the accusations against them are related to corruption. In the case of Malema, it’s the VBS Bank matter and Magashule, his suspension from the ANC for alleged involvement in corrupt activities.

A list of eight names of candidates for Chief Justice was released and included Judge President Hlophe and the Public Protector, Busisiwe Mkhwebane. In addition, Wallace Mgoqi, AYO Chair, has been nominated.

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- JUSTICE LEAGUE: Meet the 8 candidates shortlisted to be SA's next Chief Justice

There were 25 names put forward and out of them, only eight (yes, eight) met the criteria set out. These were:

  • A nomination letter, including the contact details of the nominator;

  • The nominee’s acceptance of the nomination and their contact details;

  • Letters of support for the nomination, including contact details of persons or entities that support the nomination, including at least one letter of support from a professional body of legal practitioners, non-governmental organisation working in the field of human rights, or other legal field; and

  • Any additional documentation that the person nominating the candidate for Chief Justice deems relevant.

The Presidency’s statement said that the Nominating Panel, chaired by Justice Navi Pillay “assessed and scrutinised all submissions” and these eight met the above criteria which were set out in the call for nominations by the President. These criteria were deeply, deeply flawed. The process should have included far weightier criteria than the mere administrative ones set out above, even for the long list. It has ensured that Hlophe and Mkhwebane find themselves on the list.

There is diminished legitimacy attached to the process now that these two appear on the list. Both individuals are unethical and discredited. Mkhwebane has a tenuous grasp of the law, is responsible for squandering public funds as she fights factional battles in our courts, and has single-handedly emasculated the Public Protector’s Office. On Judge President Hlophe, enough has been written in this newsletter, but how does someone who has been found guilty of gross misconduct become a worthy candidate?

There will be an opportunity to object to candidates by 15 October 2021. Politics remains part of the equation and Ramaphosa will be comfortable with this because it will indicate to his political foes that he has not prejudiced these two compromised individuals. But, while it might be politically expedient for Ramaphosa, this has done damage to the credibility of the process in the public mind. This is not an application process for a low-level internship, after all. At the very least, those guilty of ethical misconduct should have been disqualified in the same manner as those who did not file proper documentation.

There are other solid candidates on the long list for Chief Justice. One cannot help but be rooting for Justice Dunstan Mlambo and Justice Mandisa Maya (in that order!).

The work of the panel will be crucial from now onwards. The scrutiny will be intense, as it should be. It “will decide how best to openly, transparently and expeditiously compile the shortlist”, according to the first statement from the Presidency.

The panel will need to take extra care and ensure that it remedies the public suspicion which there is now and that those on the short-list are jurists of unimpeachable integrity and who have the intellectual heft to head up the judiciary. There is no space for missteps.

This appointment of the Chief Justice will be one of Ramaphosa’s most important decisions. He was part of negotiating the Constitution and has a keen grasp of what is at stake - the very essence of our constitutional democracy. This is one decision which he cannot subject to the mealy-mouthed niceties of compromise politics.

It is a decision for the future, one far beyond him and indeed, an ANC-led South Africa.

Judith February is a lawyer, governance specialist and Visiting Fellow at the Wits School of Governance. She is the author of 'Turning and turning: exploring the complexities of South Africa’s democracy'. Follow her on Twitter: @judith_february

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