The South African Constitutional Court was a beacon in a decades-long period of political uncertainty and unrest.
Most recently, the country’s highest court has passed an eloquent and groundbreaking judgment in defense of the rule of law and constitutional order. The June ruling imposed a prison sentence on former President Jacob Zuma for disobeying the court for refusing to obey the court’s order to appear before the Zondo State Arrest Commission of Inquiry.
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There could be no clearer and stronger sign of the independence of the judiciary than Judge Sisi Khampepe’s judgment, written on behalf of the majority of the court.
Still, question marks hang over the court due to some serious government failures. Errors recently made in a judgment that resulted in the final decision having to be changed suggest that things are not going as they should be before South Africa’s highest court.
The court’s response to Zuma’s annulment after being found for contempt of the court has raised eyebrows. A request for contestation – in fact an application for an amendment or revocation of an order – is generally only suitable for the correction of obvious legal or factual errors in the judgment. But instead of dealing quickly and decisively with the matter, the court created further uncertainty by asking for statements on the international legal position. This is curious as none of the parties invoked the international law dimension in the proceedings.
This encouraged other parties to the litigation, such as the Public Protector, to also make frivolous requests for annulment. These are frivolous and potentially annoying not only because they have almost no chance of success, but also because they come close to abusing legal process. They are attempts to create attraction through the back door.
The strength of the rule of law depends on certainty. The prospect of endless appeals would undermine that pillar of justice.
A second area of governance failure revolves around poor management. The court lacks the numbers. Chief Justice Mogoeng Mogoeng, whose ten-year term officially ends in October, is on leave and has practically vacated the position. The Assistant Chief Justice, Raymond Zondo, is the acting Chief Justice. But he has focused on finalizing the work of the State Detention Commission of Inquiry, which he chairs.
There were already two vacancies on the eleven-strong top court, and now two other judges – in addition to Mogoeng – the judges Khampepe and Chris Jafta are also on long leave before their upcoming retirement.
There have recently been hearings with only six permanent members of the court – a highly unsatisfactory situation. Since the Constitution allows for a quorum of eight, alternate appointments were made to balance the number.
This was a regular part of Mogoeng’s tenure as chief judge. Positions were not filled quickly, and absences through sabbaticals and other forms of long vacation were not carefully managed, with the result that the court often had up to four acting judges.
These developments poorly reflect the Chief Justice and indicate the very important leadership role associated with the position.
This begs the question: who is to be the next chief judge and what qualities and qualities are to be expected of the head of the judiciary?
In most cases, judicial appointments are made on the advice of the Judicial Service Commission. But the chief judge presides over the commission and therefore has the power to ensure that it quickly enlists and appoints judges.
In addition, the last Commission hearings in April were fraught with recalcitrant and illegal behavior, which – in at least one case – was personally endorsed by Chief Justice Mogoeng. Rather than contesting a lawsuit that challenged the process, the Judicial Service Commission simply amalgamated. New interviews will be held in October.
It is now discussed whether the institutional design of the Judicial Service Commission is the problem or whether it is the shortcomings of the individual commissioners.
It will not be easy to find the right candidate for the next Chief Justice. Not only does the person have to head the Constitutional Court, they also run the entire judiciary. It’s a very stressful role.
The role of the Commission in the process of appointing the Chief Justice is very important. However, the Constitution is a bit vague about what we expect from the committee. It simply stipulates that the President appoints the President “after consultation” with the Commissioners and the leaders of the political parties represented in Parliament.
This is a relatively thin form of the obligation to provide advice.
However, as the report of former Deputy Supreme Judge Dikgang Moseneke, which appears in his excellent legal memoir All Rise, shows:
The JSC … was convened to investigate the nominee Chief Justice’s eligibility to serve.
And, he adds, Mogoeng’s 2011 interview attracted “high public interest” and lasted for the greater part of two days, both of which were televised.
The Judicial Service Commission actually has an important role to play. Although in the end the president can choose to ignore what happens during the interview.
In Mogoeng’s case, for example, the public interview exposed the weaknesses in his approach to justice, his lack of management and leadership experience (he came from the smallest supreme court chamber in the country), and confirmed fears that his Christian faith would do any creed to trump constitutional values.
Zuma, the then president, appointed him anyway.
Mogoeng instituted strong leadership during a very stressful time on the judiciary, which was most evident when he put his name on the groundbreaking Nkandla judgment, which found that both Parliament and Zuma had violated the Constitution.
So who is next?
Former deputy presiding judge Moseneke has been overlooked three times as chief judge. In my view, South Africa has been robbed of a great lawyer and a very fine person. And Zuma’s decisions to overlook him were motivated by bad faith and political considerations tied to Moseneke’s perceived denigration of the outcome of the ANC conference that saw Zuma become president.
That doesn’t mean that the Justice Department vice chairman should normally be treated as if he were in the pole position to take on the top job.
So when President Cyril Ramaphosa is considering who should be the next Chief Justice, he should indeed be looking for someone who has Moseneke’s grace and composure, independence and leadership, but not necessarily his legal prowess.
The chief judge is one of 11 judges. He or she must be able to enforce the respect of the other 10 members of the court – something Mogoeng struggled with initially and at other times later in his tenure, as Moseneke notes in All Rise.
Moseneke also describes how determined and steely a chief judge must be ready to stand in the tough political backyard of South Africa. The courts were attacked during Zuma’s tenure and are being undermined by his supporters now that he is no longer in office.
Above all, the chief judge must show a determined and unwavering commitment to constitutional democracy and values, including social justice. This should be the starting point for a serious public debate about the qualities and characteristics of Mogoeng’s successor.
Richard Calland, Associate Professor of Public Law, University of Cape Town
This article was republished by The Conversation under a Creative Commons license. Read the original article.