One of the first hot potatoes President Kgalema Motlanthe will have to handle is the choice of the 18th judge of the Constitutional Court.
Next month, Motlanthe will have to select a judge from a list of candidates to replace Justice Tholakele Madala, who is retiring. Looking over his shoulder will be the leaders of the ANC, some of whom have branded the judiciary ”counter-revolutionary”.
Depending on the timing of next year’s general election he may also have to appoint, from a Judicial Service Commission (JSC) shortlist, three new judges to the highest court in the land. In consultation with the leader of the opposition and the JSC, he may also have to appoint the next chief justice.
Current Chief Justice Pius Langa and justices Kate O’Regan, Yvonne Mokgoro and Albie Sachs are also retiring, in the biggest shift in the composition of the court since 1994.
A leading senior counsel, who spoke anonymously to the Mail & Guardian, said there was a ”convention” in South Africa that the most senior judge in any court is automatically promoted to the next level.
”I would have thought that [Deputy Chief Justice Dikgang] Moseneke almost chooses himself,” he said.
It will be interesting to see if the convention is followed. Moseneke was reportedly promised the job by ousted-president Thabo Mbeki, but was embroiled in a public row with the ANC earlier this year.
The JSC will convene again next April to interview candidates for the remaining four seats.
From October 13, the JSC will interview candidates for Madala’s seat, almost certainly including Supreme Court of Appeal (SCA) judges Edwin Cameron and Chris Jafta and acting SCA judge Frans Kgomo.
The Mail & Guardian has reliably learned that Cameron and Jafta have reapplied.
The final shortlist, according to JSC spokesperson Marumo Moerane, was due to be released on Thursday night after a JSC teleconference meeting.
Kgomo will face a barrage of tough questions when he appears before the JSC next month after a scathing judgement two weeks ago written by SCA judge Nathan Ponnen. Ponnen accused him of bias in a racially charged murder case he heard as judge president of the Northern Cape. Ponnen ordered that the case of Joseph le Grange, sentenced to 24 years in jail and two co-accused, be retried and that Kgomo should not hear the matter again. Kgomo granted leave to appeal only against sentence and refused to recuse himself when requested to do so by counsel for the accused men.
”Taken cumulatively … I have no doubt that they compel the conclusion that in fact the learned judge president was not fair and impartial during the trial,” said Ponnen.
University of the Western Cape legal scholar Pierre de Vos said one of the major questions will be ”to what degree Motlanthe will take his cue from Luthuli House and to what degree he will get independent expert assistance from independent lawyers”.
De Vos added that Mbeki had been assisted in making judicial appointments by his legal adviser, Mojanku Gumbi. ”But with the ANC or Luthuli House resurgence, so to speak, they might to have a big say in these matters,” he said.
Advocates for Transformation chair Patric Mtshaulana said that filling Madala’s seat would prove tricky for the new president, who was unfamiliar with the members of the legal profession.
But Mtshaulana added that this might lead to a fairer process than if the president ”had some idea of who is applying and who he wants to appoint”.
Stability is what the country most needs at this point, he said. Changes should be kept to a minimum both within the presidency and the judiciary. ”If the new president has people like Mojanku Gumbi remaining, I think it will be better for him. At least he has somewhere to begin.”
Chair of the Gauteng Women’s Lawyers Association, Brenda Madumise, said Motlanthe would probably begin to implement the resolutions of the Polokwane conference on the transformation of the judiciary.
These seek to make the Constitutional Court the apex court in everything including criminal matters and to give the minister of justice power over the administration of the courts.