Earlier this week President Jacob Zuma announced Justice Mogoeng Mogoeng as his preferred candidate for the post of chief justice. The appointment of a new chief justice is a significant moment. It invites us to reflect about the ongoing challenges facing South Africa’s judiciary such as ensuring access to justice, realising the Constitution’s vision of a just and equal society, advancing the project of judicial transformation and continuing to build an independent and accountable judiciary.
In announcing his decision President Zuma confirmed that he had initiated the process of consultation by sending letters to the Judicial Service Commission (JSC) and the leaders of political parties in the National Assembly. And importantly he explained why he regards Justice Mogoeng as a sound choice.
His announcement focuses our attention squarely on what process the Constitution requires for the appointment of a chief justice and what qualities, attributes and vision we are looking for in the person who will now take the helm of the judiciary. Zuma’s transparency about the basis for his nomination is thus a welcome step.
As with the appointment of all judges of the higher courts, the power to appoint the chief justice resides with the president. What distinguishes the appointment of a chief justice is the wide discretion the president enjoys when making it. With other judicial appointments the president’s power is highly constrained: Constitutional Court judges must be appointed from a list of nominees selected by the JSC and, when appointing judges of other courts, the president must accept the JSC’s recommendations. When appointing a chief justice, the president ultimately makes the choice.
However the president may not act alone: in terms of section 174(3) of the Constitution he must consult the JSC and the leaders of political parties represented in the National Assembly before appointing a chief justice. He is not bound to follow their advice, but he must hear and consider their views meaningfully.
What does this mean practically? And do we, the public, have a say? Would it suffice if the president, having announced his preferred candidate, obtained comment only on that candidate from political party leaders and the JSC? It is not clear at this juncture how this process will unfold.
Surely the Constitution requires more? Consultation in this context requires not only that comment be solicited on the president’s preferred candidate but that an opportunity be afforded for political parties and the JSC to propose and vet candidates.
The JSC must form its own views on who should be appointed. It cannot do so without considering and evaluating other potential candidates. Unless the JSC does this, it is difficult to see how it can be said to have offered its own views. Its comment would inevitably be limited to endorsing or rejecting the president’s views, important as they are. And conversely, the president would be precluded from considering candidates whose candidacy he may have overlooked.
The importance of the JSC’s role in the process, while limited, must not be underestimated. It performs a crucial function in the constitutional scheme when it evaluates candidates for judicial appointment. It does so by considering a candidate’s record and qualities with reference to relevant criteria and comment from interested parties. And it is an effective mechanism for channelling public comment.
We should, therefore, urge the JSC to invite nominations for the position, to interview shortlisted candidates and invite public comment. The JSC’s recommendations should be made public.
A process of this nature would strengthen the deliberative process, enhance the legitimacy of the appointment and strengthen our public institutions .
It is also important to consider the qualities we should look for in a chief justice. A chief justice must be more than a good judge. A chief justice needs to command respect through stature as a lawyer, have the leadership skills to run the highest court, to head the JSC and to lead and ultimately reform the judiciary as a whole. A chief justice must safeguard the independence of the judiciary and protect the Constitution, while simultaneously acknowledging the proper limits of the judiciary in a constitutional democracy.
And, importantly, he or she must have the vision and be equipped to continue the process of transforming the judiciary, enhance access to justice and give life to the Constitution’s promise of a free and equal society.
Let us urge those entrusted with the task of selecting our next chief justice to embark on a rigorous selection process where we can candidly examine what the office entails and, in doing so, ensure that the best person is chosen for the job.
Susannah Cowen is an advocate and member of the Council for the Advancement of the South African Constitution (Casac). Casac holds its Red-Card Corruption Pledge Convention at Walter Sisulu Square in Kliptown on August 20, from 10am. The gathering will be addressed by Archbishop Thabo Makgoba. Email [email protected] for more information.
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.
