The presidency on Friday failed to release the much awaited whittled down shortlist of candidates for chief justice, saying instead that President Cyril Ramaphosa was studying a report from the Pillay selection panel assisting him with considering public nominations for the post.
According to a schedule published in September, the shortlist should have been made public on Friday. But legal commentators said it was not concerning that this was not done, and perhaps understandable that Ramaphosa simply wanted the space to apply his mind to the matter before forwarding one or more names to the Judicial Service Commission (JSC) to interview.
The presidency said Ramaphosa received a report from the panel headed by Judge Navi Pillay on Thursday, and was “giving consideration to the recommendations of the panel”.
It confirmed that public protector Busisiwe Mkhwebane, who faces perjury charges, withdrew her acceptance of nomination on Wednesday, weeks after fellow nominee Amos Mgoqi — the chairman of Iqbal Surve’s Ayo Technology Solutions — did the same.
This strikes two names off the long list of eight nominees made public on 5 October and, in theory, leaves Acting Chief Justice Raymond Zondo, Constitutional Court Justice Mbuyiseli Madlanga, supreme court of appeal president Mandisa Maya, Gauteng Judge President Dunstan Mlambo, Western Cape Judge President John Hlophe and advocate Alan Nelson.
The first four are seen as the serious contenders to succeed Mogoeng Mogoeng, whose term ended on 11 October.
Hlophe is fighting impeachment for gross misconduct after the Judicial Service Commission held that he attempted to influence two constitutional court justices to rule in favour of former president Jacob Zuma in a matter relating to the arms deal corruption case.
The presidency has confirmed that it received objections to nominations totalling more than 500 pages. Although the content has been closely guarded, it has always been plain that Hlophe’s candidacy is opposed from within the legal profession.
Though Zondo, Maya and Mlambo enjoy support in the legal field, and from some political quarters, Madlanga is perhaps the jurist’s jurist among the nominees, an intellectual admired for his limpid reasoning who could restore a sense of cohesive rigour to a court where some recent dissenting judgments — the ready example remain those in the Zuma Zondo commission contempt matter — have been criticised by scholars.
Madlanga was appointed to the Mthatha bench in 1996, becoming, at 34, the youngest judge in the country at that point. After acting at both the supreme court of appeal and the constitutional court, he returned to the bar for some years, and was appointed to the constitutional court in 2013.
Among his memorable judgments is the setting aside of Shaun Abrahams’ appointment as national director of public prosecutions as inconsistent with the Constitution, ruling that it came about as a consequence of the irregular removal of Mxolisi Nxasana and was rendered invalid.
In the same year, he penned a judgment compelling the Judicial Service Commission to make available the full record of its deliberations in 2012 on candidates to fill vacancies in the Western Cape division.
Madlanga held that Judicial Service Commission deliberations bear on the lawfulness, rationality and procedural fairness of the body’s decisions and that there was no legal basis for excluding it from the rule 53 record in review proceedings.
The Judicial Service Commission had pleaded confidentiality, saying disclosure would hamper debate and impede the selection process but Madlanga, stressing how crucial it was that the best possible candidates be selected to serve as judges, reasoned that this concern was overstated.
“I do not think it is expecting too much to adopt the stance that JSC members worth their salt ought to be in a position to stand publicly by views they have expressed in private deliberations. I would find it odd that JSC members would be such “timorous fainthearts” that they would clam up at the prospect that views they express during deliberations could be divulged,” he said.
The issue remains topical — the Judicial Service Commission is ignoring a demand from the Council for the Advancement of the South African Constitution (Casac) to release the record of its deliberations earlier this month after interviewing candidates to fill two vacancies at the constitutional court.
The interviews were first held in April but reluctantly repeated after Casac filed for review, protesting at the arbitrary, overtly political questioning of candidates. The second round resulted in the same names being forwarded to Ramaphosa, and there are questions as to why the Judicial Service Commission again overlooked David Unterhalter and Alan Dodson.
Madlanga’s other roles have been chairing the Exchange Control Amnesty Unit and the chief evidence leader at the Marikana commission of inquiry.
But of the four candidates, Zondo is by far the best known by virtue of chairing an inquiry into state capture. Over the course of close on four years, the public have become familiar with his moral courage, work ethics and steel trap memory. Not all evidence leaders could match his recall of the fine points of prior testimony as the commission delved into the intricate, dirty dealings of state capture.
But his role at the commission has also made him a risky choice for Ramaphosa. On the one hand the president could be lauded for appointing someone who asked him, while he was testifying at the commission in April, whether the ANC’s record on corruption even under his leadership did not render the ruling party beyond redemption.
On the other hand, as Zondo’s upcoming final report will inevitably finger political foes of Ramaphosa, those implicated could step up the narrative that the judiciary is captured and accuse the president of rewarding an ally, however unfounded this is.
Mlambo is a favourite of many, including, it is whispered, Justice Minister Ronald Lamola. He has a sterling record as an administrator — something the constitutional court sorely needs — and has not blinked when hearing politically sensitive cases, one example being his scathing criticism of the Zuma administration in the Omar al-Bashir matter.
Maya too is a strong administrator, and has been lauded for her incisive tackling of a toxic culture in the supreme court of appeal, of which she spoke candidly at a session of the Judicial Service Commission in 2017. In the commission’s April interviews, supreme court of appeal colleague and constitutional court nominee Judge Rammaka Mathopo said it was now largely resolved and mentioned Maya as an example of why women play a “major, major role” in the transformation of the judiciary.
Some in the legal field believe it might be better to leave the supreme court of appeal in her capable hands for now, but Ramaphosa may make a tough choice easier for himself by opting for the transformation route and naming the country’s first female head of the judiciary.
Though the failure to publish a shortlist was met with disappointment in legal circles on Friday, it does not necessarily spell a delay in naming a new chief justice, which Ramaphosa is expected to do in December.
A crucial next stage is the Judicial Service Commission interviewing shortlisted candidates, and this is still expected to happen in November, with them reporting to him by the end of next month.
Alison Tilley, the coordinator of Judges Matter, which plays an advisory role on matters relating to the judiciary, said it was encouraging that the process was moving along and called for the release of the shortlist when it is sent to the Judicial Service Commission.
“Whilst appreciating that the panel did not want to release their findings in anticipation of the president’s decision, we do think it is important for the transparency of the process that the panel’s report is released when the president sends the names to the JSC and political leaders,” Tilley said.
Casac executive secretary Lawson Naidoo agreed, saying he believed it was important to understand what criteria the panel applied.
Ramaphosa is not bound by the input of either the Judicial Service Commission or the leaders of opposition parties when he makes a final choice.