Most African constitutions of the past 30 years, led by an independent Namibia in 1990 and strongly endorsed by South Africa in 1994, have authorised the apex court to determine the limits of “government under law”. This is naturally consistent with both the rule of law and the separation of powers doctrine.
However, the inevitable tensions created with the legislature and executive have to be wisely navigated. And outbursts of politicians’ polemics, mostly unjustified, have been common.
This raises the question: is this push back beginning to have an effect?
The extent of the fightback by the executive is most commonly seen in attempts to influence judicial appointments. And there is none more so than appointments to the office of Chief Justice. This is where there is appropriately some measure of discretion given to the head of state.
South Africa finds itself at a critical juncture. Chief Justice Mogoeng Mogoeng’s 10-year term has just ended. President Cyril Ramaphosa has belatedly initiated the search for his successor.
Ultimately, the decision is for the President to make. As a qualified lawyer, Ramaphosa will know how important the appointment is, particularly as the courts face an unprecedented level of animosity from those who seek to rule by abuse of power and corrupt practice. And because the criminal justice system is tottering due to ineffective policing, a hollowed-out prosecuting authority, and a climate of impunity in many quarters.
Highs and lows
The tenure of Chief Justice Mogoeng was good in parts.
His appointment initially generated great controversy, given his relative inexperience as a judge and leader, and because President Jacob Zuma selected him. His interview by the Judicial Service Commission made matters worse, confirming fears that he would not be up to the task.
The sceptics were initially proved wrong. The Constitutional Court justices seemed to close ranks in support of him. The jurisprudence emanating from what was then a strong bench appeared to be holding true to the patterns established by the courts led by his predecessors, Chief Justices Arthur Chaskalson, Pius Langa and Sandile Ngcobo.
Some disquiet was, however, expressed about the wayward behaviour of the Judicial Service Commission in 2011-2014, when the interviews for judicial appointments became a forum for party politics. There was also disquiet about the imperious managerial style in which Mogoeng ran the Office of the Chief Justice, and his enthusiastic embrace of the trappings of office.
However, the unanimous decision in the Nkandla case in early 2016, holding President Zuma to account for unauthorised expenditure on his private homestead, tended justifiably to mask many doubts that may have been in place.
It was certainly the jurisprudential high point of Chief Justice Mogoeng’s tenure. This was especially important given the rampant pace at which ‘lawfare’ – the frequent resort to the courts to settle political disputes – developed in the last few years of Zuma’s presidency. This placed great pressure on the judiciary.
The Chief Justice’s 2015 request to meet with the President, senior judges and ministers to address the executive’s (and the governing ANC leaders’) public attacks on the courts was a timely intervention.
Regrettably, the last few years of Mogoeng’s tenure have been marked by much less positive features. These have influenced attitudes about his whole term. The following aspects detract from his performance:
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His ill-tempered dissent in the Economic Freedom Fighters’ case at the end of 2017, when he publicly accused the overwhelming majority of his colleagues of embarking on “a textbook case of judicial overreach”;
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His increasing absence from the Bench on grounds of having to attend to his many other functions as Chief Justice;
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His failure to move swiftly to fill vacancies on the Constitutional Court. The court now has five vacancies out of eleven;
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His serious failure of leadership as chair of the Judicial Service Commission. He failed to maintain an even-handed level of respect and decorum among its members, leading to an improper level of questioning during the appointments-interview process
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The appalling inability of the Judicial Service Commission to ensure a firm commitment to judicial accountability. This is exemplified by serial evasiveness by those allegedly guilty of misconduct; and
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His pronouncements on the Israel-Palestine conflict and on the necessity of COVID-19 vaccinations. He attempted to evade responsibility for both by pleading religious freedom.
Few would deny his oft-stated right to subscribe to a faith. Nevertheless he seemed oblivious to the devastating public impact of his actions, which cannot be divorced from the high office which he holds.
Indeed, these incidents would cause many to wonder at the rationality of his legal judgments.
Justice Mogoeng’s legacy will ultimately be assessed with the benefit of the passage of time. For now, his successor faces great challenges to reestablish respect for the office of Chief Justice.
Choosing a new chief justice
The constitution (section 174(3)) authorises the president to appoint a Chief Justice, after consulting the judicial commission and the leaders of all political parties in the National Assembly. This means he must consult in good faith, but is not bound by the advice given.
Ramaphosa set up a panel, chaired by a former Judge, to facilitate public participation in his final decision. The panel is mandated to produce a shortlist of between three and five candidates. The president will choose as many as he sees fit for interview by the commission (probably not more than two).
While this is laudable, in terms of openness and participation, the process yielded a long list of eight, who formally qualified with the basic criteria for judicial appointment. Four are patently not qualified to be Chief Justice, and owe their nominations to broader political posturing. The remaining four would have been on the short list of almost every knowledgeable observer.
The panel’s terms of reference specify that it will assess the candidates against the following criteria:
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fitness and propriety to hold the office of Chief Justice;
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age and citizenship;
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suitability for appointment, including unblemished integrity, moral leadership, defence of the constitution and its transformative character, independence of spirit, strong work ethic, and so on;
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judicial competence; and
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sensitivity and objectivity towards vulnerable groups.
The formulation of these criteria must be applauded, particularly in the light of the systemic failure of the Judicial Service Commission clearly to outline the criteria it uses for judicial appointment.
Looking to the future
A strong, courageous and dedicated Chief Justice will provide the leadership desperately needed to turn the administration of justice around. The appointment of anyone who does not have those qualities in abundance is likely further to erode the rule of law as a fundamental cornerstone of South African democracy.
Given the regional balance of power, the negative impact on the southern African community will be palpable.
