Mungo Soggot
Judges across the country are taking sides in the furious controversy over who is to succeed Michael Corbett as South Africa’s chief justice.
In one of the most divisive rows to hit the judiciary since the 1950s, some 100 judges have backed appeal court Judge Hennie van Heerden against Ismail Mahomed — the first black appointee to the supreme court — – for the top post.
It is believed all but one of the members of the Appellate Division have backed Van Heerden, the exception being Ralph Zulman, a personal friend of Mahomed. No judges have officially nominated Mahomed, according to President Nelson Mandela’s office, although it is believed that a small group are quietely backing and advising him.
The row hit the judiciary after the Judicial Services Commission (JSC) set up a three-man commitee to oversee the selection process, made up of Mandela’s legal adviser, Professor Fink Haysom, Chief Justice Michael Corbett and Constitutional Court President Arthur Chaskalson. The committee invited the Appellate Division and the nine provincial judge presidents to put forward nominations.
Haysom told the Mail & Guardian the committee also asked Mandela and several legal associations, such as the National Association of Democratic Lawyers, for their nominations.
The committee — which was looking for possible names, rather than a vote — was astonished to receive a deluge of nominations from judges around the country in favour of Van Heerden. It is believed that five out of nine of the judge presidents called meetings of their members to lobby for Van Heerden.
Mahomed — formerly one of the country’s outstanding human rights lawyers and now deputy president of the Constitutional Court and chief justice of Namibia — has been nominated by the Black Lawyers Association and the National Association of Democratic Lawyers.
The spotlight has so far focused on Mandela, who has been accused of riding roughshod over the appointment process by coming out in support of Mahomed before making his final decision. But although several in the African National Congress agree it was, politically, an unwise move, his action was consistent with the Constitution and with the process agreed between the president’s office and the JSC.
The selection process is considerably more democratic than that under the old regime, where the appointment of the chief justice was an executive decision which enabled apartheid goverments to mould the judiciary in their image. It is also an executive decision in the US and the UK. Mandela was keen to set the right precedent as this is the first chief justice appointment under the new Constitution.
The widespread attacks on Mandela prompted Chief Justice Corbett, who as a matter of policy refuses to talk to the press, to take the unusual step of publishing a statement. The statement backed Mandela, by explaining that the Constitution said that the new chief justice was appointed by the President “in consultation with the Cabinet after consultation with the JSC. As far as the JSC is concerned, the President’s decision does not require the concurrence of the commission, nor is he obliged to follow any advice which the commission tenders.”
But the most startling aspect of his statement was an apparent side-swipe at Judge Joos Hefer — his colleague on the 17-strong Appellate Division, who publicly called on Mahomed to withdraw his nomination. “I might just add that calls for either candidate to withdraw are wholly unjustified and an improper interference with the procedures of the commission,” said the chief justice.
The last time the South African judiciary suffered a comparable spate of controversy was in the 1950s, when the National Party twice snubbed the man described as “the greatest chief justice South Africa never had”, Oliver Schreiner, for the top post.
At the time, convention was that the position went to the longest-serving judge in the Appellate Division, which was Schreiner. But the NP government, which was having a constitutional show-down with the judiciary over the coloured franchise, ignored the convention and appointed a more junior man and NP sympathiser, LC Steyn, instead.