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Critical role lies ahead for South Africa’s new chief justice

In light of predecessor’s mixed legacy.
Former South African Chief Justice Mogoeng Mogoeng. GovernmentZA/Flickr

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:

  • 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”;
  • His increasing absence from the Bench on grounds of having to attend to his many other functions as Chief Justice;
  • His failure to move swiftly to fill vacancies on the Constitutional Court. The court now has five vacancies out of eleven;
  • 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
  • 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
  • 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:

  • fitness and propriety to hold the office of Chief Justice;
  • age and citizenship;
  • 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;
  • judicial competence; and
  • 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.The Conversation

Hugh Corder, Professor Emeritus of Public Law, University of Cape Town

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Makes no difference.

SA has a fake captured justice system FULL STOP!!!

No mara this one is too much not right because it is wrong. We must stop this system from opressing our people, get rid of all the police and security companies, we don’t need them because they are racissss

The courts enforce various forms of plunder under the banner of “redistribution”. Who can we turn to when we need assistance to protect our rights and property if the law has become a tool of plunder? Where the common criminal uses a crowbar, the sophisticated criminal uses the legislature to break in and steal our valuable assets. Instead of protecting property and liberty, the judges enforce legalized violations of property rights and treat citizens differently according to their color. The judiciary has been captured by shortsighted populism.

Progressive taxation, that punishes excellence and rewards mediocrity, BEE that plunders savers for the benefit of consumers, EE that discriminates on the basis of race, the redistributive municipal rates and taxes that turn the equity from our biggest investment into salaries for overpaid and unproductive municipal employees, all the state-owned monopolies that plunder citizens for the benefit of the political elite, labour laws that insulates the connected cronies from the realities of the free market, and the preferential procurement rules that discriminate against one race for the benefit of another are forms of legalised plunder. These criminal acts are far worse than corruption or illegal plunder.

These mechanisms of “redistribution and social justice” simply turn savings or capital formation into consumption. We need capital formation to grow the economy and create jobs. The courts enable the nation to eat its own future.

The judiciary supports and protects a system that does 100 times more damage to the economy than corruption. The judiciary supports and rewards the drivers of unemployment and economic decay.

The one institution that was supposed to guard the drivers of economic growth and act in the interest of the unemployed and the poor has become the tool that condemns the unemployed to a lifetime of poverty. The courts only care about the ANC. They don’t care about us.

“Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame and danger that their acts would otherwise involve… But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them and gives it to the other persons to whom it doesn’t belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish that law without delay – No legal plunder; this is the principle of justice, peace, order, stability, harmony and logic.”

― Frédéric Bastiat, The Law

Absolutely true. And the ANC will make sure that the best candidates for the job don’t get a look in.

Good chance that the next chief justice will be a highly compromised person

That the legal delinquent, Hlope, even made the shortlist, goes a long way to explaining the real problem we have in SA, complete erosion of every single last institution through ANC corruption.

Our legal system is a joke, bunch of overpaid parasites.

As a legal practitioner I believe the system is not captured and is functioning relatively well.

Along with the press it is playing a key role in stabilizing our young democracy.

Problems in the legal system – appointment of many inexperienced judges, too many postponements before cases get into court, magistrates and regional courts that do not start at 9h00 and finish at 15h30, etc.

I do not share your view. While the system is not captured necessarily by corrupt cadres, its captured in a different way. I read an article a couple months ago authored by one of the Judge Presidents and I could not believe what I was reading. His position was that in the future judges should consider race when rendering judgments and that the judiciary has an active role to play in “transforming” society.

The fact that a Judge President could not only have this view, but also be able to publish it without massive backlash is in my opinion proof that the judiciary is captured by judges who have certain political ideologies and believe they must use their judicial positions to implement and carry out this ideology.

I may be too pessimistic, but the days of an impartial, competent and fair judicial system is at an end in my opinion. We will follow many other African countries who have pseudo judicial system where judgments must first comply with the reigning political ideology before any other considerations of fairness and justice.

End of comments.

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