President Cyril Ramaphosa certainly took his time in moving to replace outgoing chief justice Mogoeng Mogoeng. He has finally invited the public to nominate "suitably qualified candidates" for the post, but the lateness of the hour could mean a leadership vacuum at the head of the judiciary for the remainder of the year.
Mogoeng — who has already been on long leave since May — is due to officially leave office on October 11. But it was only on September 16 that Ramaphosa announced a "consultative approach" to appoint his successor, kicking off with public nominations that will run until October 1.
The FM has canvassed former judges, advocates, scholars and government officials to get a sense of who is in the running.
The front-runners include deputy chief justice Raymond Zondo, Supreme Court of Appeal president Mandisa Maya, and Constitutional Court judges Leona Theron and Mbuyiseli Madlanga. Perhaps the favourite is Dunstan Mlambo, judge president of the Gauteng division of the high court. (See page 23 for more on the front-runners.)
But given the approach Ramaphosa envisages and the timeline he’s sketched out, the new chief justice is only likely to settle into his or her role as the year draws to a close.
"That the presidency waited until [September 16] to advertise the public consultation process is, at the least, perplexing," says Hugh Corder, public law professor at the University of Cape Town (UCT).
The situation has echoes of 2009, when the last of the founding justices of the Constitutional Court retired, leaving four vacancies on the bench, including for chief justice.
That meant "a complete change of the guard at the Constitutional Court", former deputy chief justice Dikgang Moseneke writes in his judicial memoir, All Rise.
Now another change of guard is imminent. Judges Sisi Khampepe and Chris Jafta join Mogoeng in retiring from the bench in October. Johan Froneman retired in May 2020, and the seat left vacant by Edwin Cameron in 2019 has yet to be filled.
"It is frankly scandalous that so many vacancies continue to exist," says Corder, who lays some blame at the feet of the Judicial Service Commission (JSC) for "mess[ing] up royally".
He’s referring, of course, to what Lawson Naidoo, executive secretary of the Council for the Advancement of the SA Constitution (Casac), calls the "most shocking JSC interviews in recent memory" on News24.
In April, the JSC — chaired by Mogoeng — held interviews for two seats on the Constitutional Court bench. But the manner in which the panel quizzed applicants was so alarming that 82 advocates in KwaZulu-Natal signed a petition against the interviews.
The JSC has reached a settlement with Casac and the interviewing process will be rerun in October.
Despite the upheavals, judiciary spokesperson Nathi Mncube is sanguine. "There’s definitely no panic from within," he says of the institution, now in the hands of acting chief justice Zondo.
Zondo is holding regular meetings with senior administrative managers in the office of the chief justice, says Mncube.
"He hasn’t done anything that would give people cause for concern, especially now he’s wrapping up his work on the commission [of inquiry into state capture]," he says.
A vulnerable institution
Perhaps. But the state of the judiciary — and of the Constitutional Court — is a worry, says Mbekezeli Benjamin, researcher with Judges Matter, a nonprofit that tracks judicial appointments. "You need someone who will come and settle these fires, and deal with other issues in the broader judiciary," he says.
And that will have to happen soon. A lag of three, six or even 12 months as the new chief justice finds his or her feet "will just not cut it", says Benjamin.
There are numerous issues to grapple with, not least of which is an ebbing of confidence in the judiciary.
In a recent Afrobarometer survey, for example, most of the 1,600 South Africans polled expressed doubt about the courts — the first time this has happened.
This hasn’t been helped by the fact that the Constitutional Court has been the subject of venomous attacks recently from politicians — at a time when its highest office has been in the hands of acting chiefs (Zondo and, before him, Khampepe).
In particular, the courts have been flayed by supporters of former president Jacob Zuma for rejecting his application to rescind his imprisonment for contempt of court. And they also came under fire from DA federal chair Helen Zille, who suggested the Constitutional Court had "leaked" its ruling on the postponement of the local government elections to the ANC.
There are other baying critics too, largely defending their own dubious positions, including public protector Busisiwe Mkhwebane and Ace Magashule.
The rule of law demands a present, steadfast and respected guardian. But Mogoeng himself has left the court vulnerable to attack, by challenging the instruction of the judicial conduct committee that he apologise and withdraw comments on SA’s foreign policy towards Israel and Palestine.
"To keep fighting this [issue] doesn’t look good for the credibility of the organisation," says Chris Oxtoby, who leads judicial research at UCT’s democratic governance & rights unit.
And all of this is taking place amid other longer-term concerns around the time it has taken for cases to be decided during Mogoeng’s tenure, and the fact that several recent Constitutional Court matters, including the decision on postponing the election, have been decided on papers, without public argument or a judge reading out the order with their reasoning.
That may be in the interests of justice and expediency, but it contributes to an impression that the court is in retreat.
One well-placed silk (senior counsel), unwilling to be named on account of involvement in certain cases, tells the FM the workload at the apex court is rising rapidly.
Determining applications for leave to argue before the Constitutional Court is vital: the court hears cases dismissed by the lower courts, as well as those brought directly by applicants. Neither type will be heard unless the court believes there is merit in doing so.
But those applications "are gathering dust in the building", the advocate claims.
Practitioners — including judges, lawyers and scholars — have other concerns about how the courts function.
Many are practical: often the air conditioning and lights don’t work, and there need to be reliable internet and IT services, as well as library resources.
Two legal professionals the FM canvassed tell of judges subscribing to periodicals out of their own pockets, having given up on the formal channels.
While Covid has, at least, fast-tracked digitalisation — with courts using online platforms for hearings and managing bundles of papers with software called CaseLines — it hasn’t been seamless. In some courts, shoddy IT infrastructure has hampered the swift administration of justice.
A legal ‘superwoman’ or ‘superman’
This is the morass on which the new chief justice will have to impose order. And that, says Oxtoby, will "need a superwoman or superman. I think it is a tremendously difficult task."
So what person would be suited to the challenge?
The FM canvassed several former judges, including from the Constitutional and high courts, senior lawyers, government officials, scholars, judicial interest groups and legal literature to get a sense of what SA needs in its next chief justice.
In All Rise, Moseneke lists the "enormous and important duties" of the chief justice. Besides leading the judiciary and ensuring the courts run smoothly, these include chairing the JSC, fulfilling ceremonial roles such as swearing in the president and representing SA’s legal system abroad.
In fact, since the office of the chief justice was established in 2010 the incumbent’s duties have proliferated.
"At last count there were over 23 pieces of legislation which said the chief justice must do this, must do that," says Judges Matter’s Benjamin.
The chief justice also makes the Constitutional Court rules, chairs the panel which nominates electoral commissioners, monitors standards for the courts’ judicial function, and weighs in on judges’ salaries and working conditions, among other tasks.
"There is no doubt that being a chief justice is a full and prestigious job, particularly in a constitutional democracy, where the court sits at the centre of the democratic enterprise," Moseneke writes. "It can also be a thankless job during times of political divisions with the party and state."
It’s a point that his former colleague, Kate O’Regan, picks up. "We’re a deeply divided society; we’re a deeply unequal society. Building a successful democracy is a challenging task and the judiciary is always going to be part of that," she tells the FM. This is why, she says, "leading the judiciary is always going to be one of the most important jobs in the country".
Legal scholar Khomotso Moshikaro, who is pursuing a PhD at Cambridge, says the panel should demand "serious administrative experience and intellectual rigour".
"This person must be decisive and clear, while not being narrow-minded and dogmatic about their commitments. In a word: judicious," he says.
Also important, says Moshikaro, is that the chief justice fosters a healthy culture of collegiality and dissent.
The chief justice’s standing is "first among equals", as the judges themselves wrote in a 2011 Constitutional Court judgment, delivered after former president Jacob Zuma unilaterally extended chief justice Sandile Ngcobo’s term by five years. (After the court declared this unconstitutional, Zuma appointed Mogoeng to lead the court.)
It is no accident that the country’s most senior judges thrash out their differences of opinion on upcoming decisions at a round table. They are a college — and any judge can garner support for a view based on the soundness of his or her reasoning.
But legal practitioners say this means the chief justice must be a unifying figure.
"The idea that the chief justice is respected and seen as somebody worthy of respect by their colleagues is a very important part," O’Regan adds.
"A chief justice needs a range of qualities: external public-facing leadership, internal, jurisprudential, legal leadership within the court and administrative skills."
Finding someone to fit the bill is a tough ask, and Corder cautions against the idea that a single appointment will prove to be a panacea.
"One appointment can’t fix everything, but certainly appointing the right person here would begin to make a huge difference to the judiciary," he says.
It’s a point echoed by Oxtoby, who adds an ability to delegate to the list of requirements. "If you look through everything the chief justice is supposed to do — it’s just not possible," he says.
Back in 2012, Mogoeng received a report by former chief justices Arthur Chaskalson and Pius Langa — commissioned by his predecessor, Ngcobo — on how the office of the chief justice ought to manage the relationship with the justice department in the interests of judicial independence.
At the time he said it would take a decade for the office of chief justice to become fully operational.
The problem, in part, seems to be that it is entirely unrealistic for one person to fulfil all the responsibilities of the chief justice.
Oxtoby says there may also be an issue around resources.
"Even in well-functioning democracies, the judiciary’s lack of funding can be a real concern ... It just seems to me the process of [ensuring the office is operational] has not been fully completed."
With Mogoeng out of the picture, completion of that task will fall to his successor.
The good book
As for Mogoeng, he recently started a nationwide tour preaching Revelations, the baleful last chapter of the New Testament.
On September 22, he began the series of talks in partnership with Healing the Nation Africa, beginning at the Kingdom Covenant Life Assembly in Vosloorus.
The next day he took to the pulpit at a church in Ga-Rankuwa, and he will speak to congregants in the Western Cape, Northern Cape, Eastern Cape and Mpumalanga in the next few months.
His religious predilections have been a constant source of tension in his office. Last December, he contributed to vaccine disinformation when he told a gathering that "if there be any vaccine that is the work of the devil meant to infuse 666 in the lives of the people, meant to corrupt their DNA … may it be destroyed by fire".
Now, untethered by the need for propriety as the head of the judiciary, he will have far greater scope to proffer such thoughts.
In his absence, Ramaphosa’s panel will consider the short list of chief justice nominees. At this precarious moment in SA’s democracy, it must find the right candidate.
"The stakes couldn’t be higher," says Corder. "The rule of law really is under siege in this country … and the courts are under attack … not only because of the many Zuma issues, but also because of some scandalously ill-informed and malevolent politicking."
It’s a critical moment, he says, to appoint a really strong champion for the judiciary.
Choosing the right person as chief justice will be crucial for the under-fire courts and for SA’s constitutional democracy
— What it means:
Appointing Mogoeng’s successor
The constitution gives the president the ultimate power to appoint SA’s chief justice. He is required to consult with the Judicial Service Commission (JSC) and leaders of the opposition parties in the National Assembly, but is not bound by the outcomes of those consultations after he shortlists his preferred candidate(s).
However, in keeping with his governance style — and in line with how Shamila Batohi was appointed as prosecutions boss and Edward Kieswetter as SA Revenue Service commissioner — President Cyril Ramaphosa has decided on a more consultative approach to finding Mogoeng Mogoeng’s successor.
On September 16, the president invited South Africans to nominate “suitably qualified candidates” for the role by October 1. The names will be published on the presidency website by October 4, with an October 15 deadline for written objections.
From there, an advisory panel — headed by former International Court of Justice judge Navi Pillay and including justice minister Ronald Lamola, former justice minister Jeff Radebe, former public protector Thuli Madonsela, HIV/Aids and LGBTQI activist Mmapaseka Steve Letsike and law professor Ziyad Motala — will compile a shortlist of three to five candidates. This shortlist will be submitted to Ramaphosa by October 29, and he will then consult the JSC and leaders of political parties on his preferred candidate(s).
“We expect that this process will further deepen public confidence in the independence and integrity of the judiciary,” Ramaphosa said earlier this month.
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