CHRIS OXTOBY: Legal urgency
With the judiciary under pressure, it's important for President Cyril Ramaphosa to begin the process of finding a new chief justice without delay
Chief justice Mogoeng Mogoeng has metaphorically ridden off into the sunset, taking long leave from which, it seems, he will not return to office.
By the time his tenure formally ends in October, Mogoeng will have served as chief justice (CJ) for 10 years, making him the longest-serving CJ in post-apartheid SA. He leaves behind a complex legacy and a judiciary facing significant challenges.
When he was first appointed, there were doubts about his suitability for the highest judicial office. In the eyes of many he decisively rebutted these, particularly when penning the famed Nkandla judgment. Yet he has at times been confounding.
In 2015, amid fallout from court decisions ordering the arrest of then Sudanese president Omar al-Bashir, Mogoeng spoke out publicly against criticisms of the judiciary. Yet when faced with recent seemingly spurious allegations of judicial corruption, he was surprisingly silent.
As chair of the Judicial Service Commission (JSC), he has presided over some extremely problematic interviews of candidates. It culminated this week in the Council for the Advancement of the SA Constitution (Casac) bringing an application to nullify the April interviews — and ensuing recommendations of candidates — for Constitutional Court vacancies.
The Constitutional Court faces the prospect of having as many as five vacancies later this year
Mogoeng also leaves office with misconduct complaints linked to comments about Israel and Covid vaccines hanging over him.
It’s a demanding time for the judiciary. The JSC faces the Casac challenge, as well as a long-awaited decision about the finding of gross misconduct against Western Cape judge president John Hlophe — all while the JSC’s chair, the CJ, is on long leave and his deputy, Raymond Zondo, remains enmeshed in the state capture inquiry.
With the Casac challenge preventing appointments to its bench, the Constitutional Court faces the prospect of having as many as five vacancies later this year, when the tenures of justices Chris Jafta and Sisi Khampepe as well as that of Mogoeng come to an end.
All of this turns a renewed spotlight on the appointment of the new CJ. The issue has been flagged for some time, but Mogoeng’s long leave brings it rapidly forward, and the appointment of his successor should begin apace.
The position of CJ is demanding and crucial. It is encouraging that there has been significant public debate about the appointment, and there has been fruitful public discussion about the criteria that should be applied. These include the need for the CJ to be an intellectual leader with a strong jurisprudential track record, commanding the respect of peers.
The CJ must be demonstrably committed to the values of the constitution. They need to have a proven leadership track record and a deep and nuanced understanding of the institution of the judiciary. As chair of the JSC, they must be authoritative and fair in dealing with both judicial appointments and complaints against judges. As the public face of the judiciary, the CJ needs to be able to stand up to attacks on the institution and to inspire public confidence. They must be both humble and courageous.
This may seem to make the role supremely demanding. It is therefore necessary for the CJ to acknowledge their own limitations and nurture the leadership of others.
Talk to judges, and you will hear of the importance of hard legal and administrative skills, but also of "softer" qualities, such as identifying and nurturing new judges, creating an enabling environment for collegiality and being accessible.
The importance of pastoral care, and concern for the health and wellbeing of judges, is not traditionally considered when discussing judicial leadership. Yet these factors should also be borne in mind, given the pressures that judges face.
New process wanted
The process followed in appointing the CJ will be very important. Recent practice has been for the SA president to announce the name of a single candidate, who is appointed once the required consultation has taken place.
This process has been criticised, and it’s been suggested that the president should consider input from an advisory panel as well, as was done with the appointment of the national director of public prosecutions.
There must, however, be transparency regarding the shortlisting criteria employed. It is also important that the views of judges themselves, who are arguably best placed to assess the needs and demands of the role, are considered.
With the potential for a leadership vacuum at the head of the judiciary, and with the Constitutional Court potentially having five of its 11 positions vacant later this year, it is vital for the president to begin the process of appointing the new CJ without delay.
- Oxtoby is a senior researcher in the University of Cape Town’s democratic governance & rights unit
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