The contest is on to find a new chief justice. Sipho McDermott and Ilham Rawoot line up who is on the cards.
Sisi Khampepe
Soweto-raised Sisi Virginia Khampepe, a serious frontrunner, could be the face of transformation if President Jacob Zuma were to appoint her as the country’s first female chief justice.
Khampepe has had a thorough trip through the justice system. She began her career as a legal adviser at the Industrial Aid Society and received her Master of Laws from Harvard. She then worked her way up to the position of deputy national director of public prosecutions. She was appointed as a judge in the South Gauteng High Court in 2000 and the Labour Appeal Court in 2007.
She also served as a commissioner on the Truth and Reconciliation Commission. She has had international experience in observer missions, having been appointed by former president Thabo Mbeki as an observer of the Ugandan and Zimbabwean elections, with fellow judge Dikgang Moseneke. This gives her the additional advantage of having had some political experience.
She started her Constitutional Court career in 2009, the only woman of four new appointees.
She is best known as head of the Khampepe Commission, established by Mbeki in 2006 to investigate the mandate and location of the Directorate of Special Operations (the Scorpions). Her recommendation that it remain under the National Prosecuting Authority but that its political oversight be transferred to the minister of safety and security was not accepted and the Scorpions unit was later disbanded. Word in the legal fraternity is that current chief justice Sandile Ngcobo supports her as his successor.
Dikgang Moseneke
As deputy chief justice Dikgang Moseneke is seen by many as the obvious choice to replace Chief Justice Sandile Ngcobo. He appears to be the favourite with the legal fraternity, in part for the ease with which he would be able to continue the judicial reform started by Ngcobo.
Hailing from Pretoria, Moseneke has the necessary struggle credentials for the position. He spent 10 years on Robben Island, where he received a Bachelor of Arts in English and political science and a Baccalaureus Juris (BJuris). Since then he has worked at all levels of the judiciary and helped draft the interim constitution. He took his place on the Constitutional Court bench in 1999.
In 2002 he and Judge Khampepe were sent to Zimbabwe to investigate constitutional and legal challenges in the build-up to the elections. He was seen as the best candidate for the top job in 2009, but Ngcobo got it instead, an oversight which upset opposition parties.
He is passionate about access to justice and his approach to outreach is cited as another reason why he is suited to continue Ngcobo’s work. His rulings have been in line with his stance that the Constitution works for the people. In the case of Minister of Finance v Van Heerden, he received praise for writing the ruling and saying that equality still had to be achieved in South Africa.
But most observers think he will not get the job because of his Pan Africanist Congress links, his fierce independence and his belief in the independence of the judiciary. At his 60th birthday party, he was reported to have said: “It’s not what the ANC wants or what the delegates want, it is about what is good for our people.”
Mogoeng Mogoeng
The jury is still out on Mogoeng Mogoeng. He is a dark horse because he has less legal experience than his peers, but is seen as a better political choice for the ANC.
Mogoeng is the most recent of the frontrunners to come to law. He started as a prosecutor in 1986 and made a quick ascent to the Constitutional Court in 2009.
He has raised eyebrows for his dissent in many rulings. In The Citizen and Others v Robert McBride he went against the majority saying the newspaper’s reporting on McBride represented a wider cultural attack on traditional values. This has created the perception that he has a deferential attitude towards the executive.
His dissenting views in Le Roux and Others v Dey made people question whether he was homophobic. More importantly, he did not give a written explanation for his dissent, something all the court’s judges do to explain their reasoning, regardless of the outcome.
Serious concerns about his becoming chief justice also stem from an incident involving his wife. She was prosecutor in a case in which he was the judge and he refused to recuse himself. A full bench of the Supreme Court of Appeal was convened, which overturned his decision because of impropriety. But it is his lack of experience that makes his fitness for office questionable, regardless of his political leanings.
Lex Mpati
Born in Durban, Lex Mpati grew up in Fort Beaufort in the Eastern Cape and received his LLB from Rhodes University. After university he spent several years in the province advocating human rights issues.
In 2000 he was appointed an acting judge in the Supreme Court of Appeal. In 2003 he became the deputy judge president and in 2007 he took over as judge president and set about securing and strengthening the court. In the same year he had a stint as an acting judge in the Constitutional Court.
His work at the appeal court is seen in legal circles as a good sign that he would continue the work of Ngcobo in growing the Constitutional Court.
His integrity and stance on judicial independence was consolidated when he was one of a minority among those on the Judicial Service Commission who felt complaints against Western Cape Judge President John Hlophe should be investigated further. Hlophe was accused by fellow judges of trying to influence them to act in President Jacob Zuma’s favour when corruption charges were filed against him.
Although Mpati is widely respected for his wealth of experience, he is also one of the oldest of the frontrunners and is rumoured to be nearing retirement. He is also seen by some as being a potential placeholder for a more long-term choice.
Bernard Ngoepe
Bernard Ngoepe, currently judge president of the North and South Gauteng High Courts, grew up in a small village near Polokwane. He studied at the University of the North, where he was awarded a BJuris. Further studies through Unisa led to a Bachelor of Law.
Previous positions include chairman of the Court of Military Appeals and the Council for the Review of Capital Offences. His stance on judicial independence came into question after he said at the closing of the Access to Justice conference last month that the powers of the three organs of government are equal. This would appear to clash with the idea that all organs of the state are governed by the Constitution, something Ngcobo has been pushing for with the Superior Courts Bill.
However, when Judge Nkola Motata appeared on drunken driving charges Ngoepe told him to take a leave of absence until after the trial, showing a decisiveness that is said to stand him in good stead in any bid for the highest position in the Constitutional Court. He was selected as one of only 11 judges from Africa to serve on the African Court of Human and People’s Rights.
Kenneth Mthiyane
Kenneth Mthiyane is an acting judge of the Constitutional Court and his legal strength and mind are admired by those in the fraternity. Hailing from Ndwedwe in KwaZulu-Natal, he got his legal degrees from Unisa and the University of Natal, Durban. Before the 1994 elections he visited communities to give them legal assistance and educate voters and has since maintained these links, ensuring that he teaches when he can. In 2001 he was appointed as a judge of the Supreme Court of Appeal and went on to serve as an acting judge in the Supreme Court of Namibia.
His legal acumen was solidified in The Citizen and Others v Robert McBride, when he went against the majority decision. In explanation, he showed an understanding of the links between the law and ethics which has drawn praise. He was appointed to the Constitutional Court in 2011.
Dunstan Mlambo
Dunstan Mlambo is judge president of the Labour Court and the Labour Appeal Court. He started off with a BProc from the University of the North and then served as a fellow of the Legal Resources Centre in 1987. His links with community development have garnered respect and he is the chair of Africa Legal Aid. In 2003 he accepted an acting appointment to the Supreme Court of Appeal. He was appointed permanently in 2010. Though he has received less attention from the media, he is seen as having a great deal of integrity and belief in the independence of the judiciary.
President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new Chief Justice. For more news on the controversy surrounding the appointment click here.
