President Cyril Ramaphosa. (GCIS)
President Cyril Ramaphosa has reportedly decided to replace advocate Griffiths Madonsela on the Judicial Service Commission (JSC) with advocate Sesi Baloyi, in apparent further fallout from the commission’s interviews with candidates for the post of chief justice.
Reliable sources said Ramaphosa made the change after consulting political parties, and ahead of a round of JSC interviews in early April with candidates for appointment to the constitutional court.
Ramaphosa designated Madonsela as a member of the JSC in March 2020.
Madonsela’s line of questioning of the shortlisted candidates for the post of chief justice in February raised eyebrows at times, notably during the interview with Gauteng Judge President Dunstan Mlambo.
Madonsela said there was a perception that Mlambo was partisan and tailored his interpretation of the law to favour Ramaphosa and to find against former president Jacob Zuma.
He initially put Mlambo on the spot by interrogating his struggle credentials and asking how he could be the vanguard of “a Constitution you never fought for”.
Madonsela then raised public prosecutor Busisiwe Mkhwebane and Democracy in Action’s objections to Mlambo’s candidacy, stressing that she and the organisation had alleged that Mlambo “demonstrated incoherence in jurisprudence that exhibit executive-mindedness in judgment writing or decision-making”.
At issue was Mlambo’s rulings in matters where Zuma and Ramaphosa had challenged the directives of the public protector’s office, first where he dismissed Zuma’s challenge to then public protector Thuli Madonsela’s order that the chief justice name the head of a commission of inquiry into state capture.
Years later, Mlambo upheld Ramaphosa’s challenge to Mkhwebane’s finding that the president had benefited financially from donations to his CR17 campaign for the leadership of the ruling ANC and should be investigated for money-laundering.
The high court held that she had exceeded her powers. Explaining the rationale for the respective judgments, Mlambo said: “So the facts are different, and the application of the law to those facts are different; hence the different results.”
The constitutional court dismissed an appeal by Mkhwebane in this regard, in a ruling even more scathing of her conduct than that of the high court, implying she had acted with malice.
But Madonsela pressed on at the JSC interviews, noting to Mlambo: “I think the undercurrent of the criticism is that you appear to be making favourable judgments in favour of Ramaphosa and castigating Zuma.”
The JSC has been widely criticised for Mlambo’s interview, in which he was also grilled by advocate Dali Mpofu about rumours of sexual harassment. The questions were advanced without substantiation or warning, and Mamblo deplored it as “gossip” seemingly raised to sink his candidacy.
Advocates for Transformation (AFT) recently replaced Mpofu as its indirect representative to the JSC with Kameshni Pillay SC.
A report by a sub-committee of the AFT last week noted that Mpofu’s conduct was the subject of criticism by some in the body, without making any finding on the complaints.
It quoted one unnamed member of the AFT as saying on the subject of his questioning of Mlambo: “What concerned me or some of us is that these questions were asked on behalf of AFT by a long-serving member of the bar … The probable inference to be drawn is that the questions were aimed to insult and embarrass the judge president.”
Ramaphosa earlier this month named Deputy Chief Justice Raymond Zondo as the next chief justice. He chose not to follow the JSC’s recommendation that he appoint Supreme Court of Appeal President Mandisa Maya, but instead nominated her to succeed Zondo as deputy chief justice.
In terms of section 178 of the Constitution, the president designates four members of the JSC.
Madonsela was an assistant state attorney in Durban and was admitted as an advocate some 20 years ago. Baloyi is a highly respected silk and the current chairperson of the Johannesburg Society of Advocates.