The usual contenders and some surprises on long list for chief justice job

NEWS ANALYSIS

In the end, eight nominees for the crucial job of chief justice made it onto a long list compiled just a week before the current incumbent, Mogoeng Mogoeng, leaves office.

The list of names released by the presidency on Monday afternoon 4 October features four known contenders, two red herrings and two further nominees — advocates Alan Nelson and Wallace Mgoqi — the latter perhaps falling into the red-herring category.

Acting chief justice Raymond Zondo, Supreme Court of Appeal president Mandisa Maya, Constitutional Court Justice Mbuyiseli Madlanga and Gauteng Judge President Dunstan Mlambo are the four names that have been bandied about for at least a month as the most likely successors to Mogoeng.

Compiling the list was a complex business, way before President Cyril Ramaphosa broke with recent tradition and invited public nominations as to who should replace Mogoeng, whose term ends on Monday 18 October.

A couple of weeks ago Zondo was considered the frontrunner, though three years spent heading the commission of inquiry into state capture appeared to have put him out of contention, despite the tradition, not strictly adhered to, for the deputy chief justice to be a shoo-in as the next head of the judiciary.

This prospect dimmed as Zondo applied for a fifth extension to complete his work at the commission inquiring into the rent-seeking scandal that defined the Zuma era and haunts almost every aspect of public life to this day.

Concerns about his administrative capabilities have been exacerbated precisely by his application for yet another, costly application for an extension, though the country at large now recognises Zondo’s admirable intellectual capacity. 

He has routinely, in highly public fashion, impressed by holding the intricacies of state capture intrigue in mind and interrupting senior evidence leaders, when necessary, to get to the granular detail of what transpired as witnesses testified.

Mlambo and Maya on the other hand, have earned plaudits for, respectively, improving the running of the overburdened Gauteng division — the busiest in the country — and the previously frustratingly fractious appellate court.

Both oversaw a smooth transfer to virtual proceedings last year, soon after the Covid-19 pandemic set in. In legal circles, however, there is a sense that Maya should, for now, be left to her sensible running of the Supreme Court of Appeal.

Perhaps the most respected jurist among the nominees is Madlanga. Last month, his availability was in question but since one criteria for being listed is accepting the nomination, that doubt has now been put to rest.

Mlambo is a favourite among legal commentators, having displayed impressive mettle when faced with tricky political matters that puts his independence out of question. It is a quality seen as the most critical requirement for appointment to the apex court and one which was emphasised on Monday 4 October by Judge Rammaka Mathopo as he was interviewed for the second time in six months for one of two vacancies at the Constitutional Court.

The biggest surprises on the long list are Western Cape Judge President John Hlophe and public protector Busisiwe Mkhwebane. Both face possible impeachment and both have gone to considerable legal ends to resist as much. 

Hlophe was nominated by the Black Lawyers Association, despite the Judicial Service Commission endorsing a finding by the Judicial Conduct Tribunal that he be impeached for gross misconduct for seeking to sway two justices at the apex court some 13 years ago on a pending matter relating to the graft charges against then aspirant president Jacob Zuma.

Hlophe is seeking to take the matter on review in the high court in Johannesburg, where he last month withdrew an urgent application to interdict parliament from commencing impeachment proceedings against him, pending the outcome of the challenge. He was forced to abandon it because the legislature was only due to deal with it after its current recess ends in early November.

Mkhwebane has been partially successful in challenging the rules of the section 194 parliamentary committee inquiring into her fitness to hold office after a string of humiliating court reversals of her findings. The Western Cape high court held that she was entitled to legal representation when the process gets underway, probably only in February next year, and that members of the legislature may not rely on the views of a panel composed of judges, which reported that there was prima facie evidence to oust her.

The appearance of Hlophe and Mkhwebane on the long list have raised eyebrows — given that a media release from the presidency stated that all eight “qualified for nomination set out in the criteria”. 

But it was later clarified that the advisory panel headed by Judge Navi Pillay — a former UN high commissioner for human rights who was appointed by the president to ensure probity — had no hand in compiling it. Instead, the panel’s input will shape a shortlist to be made public later this month.

Mgoqi is a former judge at the Land Claims Court and the current chairman of Iqbal Surve’s Ayo Technology Solutions. Alan Nelson SC has served as an acting judge in the Western Cape high court.

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