Leading members of the legal profession have dismissed suggestions that the Constitutional Court is in disarray and that it suffers from poor leadership.
They were reacting to media suggestions this week that the reluctance of leading figures from the legal profession to serve in the country’s highest court was a reaction to low morale and a lack of leadership by Chief Justice Pius Langa.
A judge and senior advocate interviewed went further, suggesting that the claims were ”malicious propaganda” and pointing to the similarity between them and aspects of the challenge to the Constitutional Court by embattled Western Cape Judge President John Hlophe.
Former chief justice Arthur Chaskalson was also reported this week as dismissing the claims as ”ill-informed misinformation”.
The Judical Service Commission (JSC) recently opened nominations to fill the post to be vacated by Judge Tholakele Madala, who retires later this year. He will be one of five of the court’s original complement of judges to retire in the coming year.
Chief Justice Pius Langa and Judges Yvonne Mokgoro, Albie Sachs and Kate O’Regan are also due to retire next year.
The JSC has readvertised the post. The first-round nominations did not meet the legal requirement of a list of four candidates.
Judges Edwin Cameron, Frans Kgomo and Chris Jafta were later approached to supplement the list and are now free to reapply.
A sitting judge and a leading advocate, who requested anonymity because of the sensitivity of the matter, dismissed outright the suggestion that the court had lost prestige because of a lack of leadership and low morale.
The claims were ”mischievous”, they said, adding that they could be used as ammunition in the bitter stand-off between Hlophe and the Constitutional Court judges.
”It’s just propaganda from the Hlophe camp,” snapped the advocate.
A top senior counsel pointed out that it was not unusual for posts to be readvertised, ”and in fact it has happened in the past”.
All the members of the legal profession interviewed by the Mail & Guardian said that in their experience, the court was in good shape.
A junior advocate said that other factors behind the paucity of applications included the fact that taking a seat on the court usually involved a salary cut. It was thus better suited to top legal professionals who had already accumulated wealth.
He said opportunities at the Bar were opening up for most leading black advocates and they were quite content to continue in private practice. Some white advocates were reluctant to apply for fear that their race would rule out their appointment.
Another leading advocate pointed to ”a level of uncertainty” because of the prospect of a change in government next year.
”There is a perception in the legal fraternity that they’ll get a fairer chance under a Zuma presidency,” he said. President Thabo Mbeki was seen as ”quite particular” about his appointments and as preferring ”acolytes”.
The suggestion that there were problems at the Constitutional Court first surfaced after the court’s judges went public with their complaint against Hlophe.
Replying in an affidavit to the charge that he had sought improperly to influence two judges of the court in relation to a case involving ANC president Jacob Zuma, Hlophe alleged that at least one acting judge and a permanent judge of the Constitutional Court had told him of their concerns about the lack of leadership at the court.
Hlophe alleged that Judge Chris Jafta had spoken to him ”about what he perceived as a weak management of the court as a concern to him, in particular that it seemed that Justice O’ Regan was running the court and not necessarily Chief Justice Langa”.
Hlophe also alleges that Deputy Chief Justice Dikgang Moseneke had ”expressed frustration about what he perceived as the poor leadership” of the chief justice.