Why the next chief justice should be a woman

The debate regarding the appointment of South Africa’s next chief justice is necessary and should be encouraged. Everyone in South Africa should express their view as to who they believe should be the next chief justice or on the criteria that President Cyril Ramaphosa should follow when making the appointment. 

The extent to which the debate will influence the president is not clear. What is clear however, is that in making the appointment, the president must have regard to section 174 of the constitution which requires any “appropriately qualified” South African woman or man to be appointed as chief justice. It appears that “appropriately qualified” entails someone who possesses a relevant law undergraduate degree and practical or even academic legal experience relevant to assist him or her to easily grasp the issues which she or he will be called to determine. 

The process of preparing the candidate for judicial appointment appears also to be an important consideration. In other words, acting as a judge in a court where the candidate aspires to serve can contribute towards the assessment of whether such a candidate is qualified to be appointed to that bench. In this context, the phrase “appropriately qualified’” has a wider meaning than mere academic qualifications. 

Section 174(2) of the constitution requires the president to make judicial appointments that reflect the racial and gender composition of South Africa. The president is also required to consult the chief justice and leaders of political parties represented in parliament when appointing judges. The Judicial Service Commission (JSC) is constitutionally mandated to “prepare” a list of nominees with three names more than the number of appointments, from which the president will make his appointments (section 174(4)). 

When appointing the chief justice, the president of the supreme court of appeal and their deputies, section 174(3) of the constitution requires the president to consult the JSC and the leaders of parties represented in the National Assembly. 

Ramaphosa is faced with the task of appointing the next chief justice following the retirement of the former chief justice, Mogoeng Mogoeng. To promote and encourage public participation, Ramaphosa decided to include the public in this process. Members of the public were required to nominate their preferred candidates to be “assessed and scrutinised” by a panel established by the president. This panel was required to shortlist candidates who will be subjected to the JSC processes before the president “decides” who will become the next chief justice.

Most disappointingly, and consistent with the patriarchal culture in South Africa, the panel ashamedly shortlisted only two women and six men, despite the large pool of competent female judges, lawyers and law teachers with which this country has been blessed. In fact, it can be fairly argued that the panel embarrassingly only nominated one woman because, given the history between Ramaphosa and advocate Busisiwe Mkhwebane and several court judgments against her as the public protector, it is highly unlikely that the president will even consider her nomination. Further, her CV as placed on parliament’s website, does not indicate that she actively practised and litigated as an advocate.

I should not, however, be misunderstood as arguing that she is not worthy or competent to be appointed chief justice. I am also of the view that out of all the nominated male candidates, Western Cape Judge President John Hlophe also does not stand a chance of being appointed, despite having all the attributes that are needed for the post. I have no doubt that Ramaphosa will try to avoid the noise that will likely erupt with the appointment of Hlophe. There are effectively five candidates that stand a chance of being seriously considered by the president after the JSC’s processes. Both Mkhwebane and Dr Wallace Mgoqi wisely withdrew from the race. 

I am of the view that the shortlisting panel failed to contextually analyse and apply section 174(1) of the constitution and disregarded the gender imperatives regarding the position of chief justice. The panel ought to have assessed nominations in light of the history behind the office of the chief justice in South Africa from when it was situated in the appellate division to the supreme court of appeal and now the Constitutional Court. There was a need to be conscious of the fact that men had always occupied that position, not because they were naturally better than women or born with relevant skills and expertise, but due to opportunities presented to them that allowed them to meet the necessary requirements for the job. 

The panel ought to have interpreted section 174(1) of the constitution from a gender perspective relating to the office itself and not the current situation at the Constitutional Court where several women are currently sitting as judges. It is also disappointing that none of the women judges at the Constitutional Court found their way to the final list. This, in my view, is an insult to women judges in this country, some of whom based on their intellect, skills, humility, integrity, ethical conduct, work ethic, organisational ability, leadership and capacity to understand simple and complex issues as well as their proven track record as reflected in their judgment, are better placed than their male counterparts to be elevated to the highest judicial post. 

Since the search panel failed to properly engage the gender question by nominating one female judge to effectively compete with five male competitors, it remains to be seen whether Ramaphosa can deal with the gender question better than the panel he established. But most importantly, will Ramaphosa deal with the gender question better than former president Thabo Mbeki? Mbeki appointed Dikgang Moseneke as the deputy chief justice on 1 June 2005 after having been appointed to the Constitutional Court on 29 November 2002. At the time of Moseneke’s appointment, Tholie Madala; Albie Sachs; Sandile Ngcobo; Zak Yacoob; and Pius Langa as chief justice were already judges of that court. 

But most importantly, two quality women jurists, Yvonne Mokgoro and Kate O’Regan also became judges before Moseneke was elevated to the bench. However, Mbeki overlooked all these judges, including the female judges and appointed Moseneke as the deputy chief justice of the country. I doubt if anyone can successfully argue that, at the time, Moseneke was the most “appropriately qualified” candidate. It will be difficult to sustain this argument because the two women judges in particular, were not only the inaugural justices of the Constitutional Court but had also acquired institutional knowledge, expertise, skill and certainly possessed the required intellectual capacity to be appointed to the deputy chief justice position. 

Perhaps it may be argued that, by not appointing them, Mbeki considered the fact that they were due to retire at the same time when Langa retired, hence the need to appoint someone who is likely to remain on the bench after their retirement.

If this was the idea, then it is not clear what disqualified Ncgobo and Yacoob from being appointed as obviously senior judges at the time. Or did they not possess the ability to keep the court together intellectually? Such a conclusion would be an insult to these judges. While it might be regarded as malicious to argue that political considerations weighed heavily in favour of Moseneke in the mind of Mbeki, it will not be an unfair observation to make given Moseneke’s well-known and impressive political background. 

I am of the view that Mbeki in 2005 failed the gender test. In fact, he denied Mokgoro and O’Regan an opportunity to perform leadership functions to demystify the view that leadership in the judiciary is the exclusive preserve of males. These two judges were not only skilled with relevant expertise, they also learnt from former chief justices Arthur Chaskalson, Ismail Mahomed and Langa. Throughout their judicial career they delivered exceptional judgments which were well reasoned as well as important dissenting opinions. They had more judicial experience than Moseneke, who became a judge in 2001 and was elevated a year later to the Constitutional Court. Mokgoro and O’Regan were appointed judges by the late president Nelson Mandela in 1994. It is in this context, that I argue that Mbeki not only overlooked them, but missed a golden opportunity to allow women to demonstrate what they can do if provided the responsibility to lead in the judiciary. 

The presidents that came after Mbeki have not covered themselves in glory either when it comes to women leadership in the judiciary. Former president Jacob Zuma appointed Justice Monica Leeuw as the first ever female judge president in the country. To my knowledge, she remains the only woman who occupies this position permanently. Justice Yasmin Meer is currently acting as the judge president of the land claims court. It was also encouraging to see the appointment of Judge Nobulawo Mbhele as the deputy judge president of the Free State division of the high court. 

Women are constantly denied their rightful place in the judicial leadership table in South Africa. This is perpetuated by the lack of contextual understanding of section 174(1) of the constitution. The perpetual appointment of men to judicial leadership positions perpetuates the narrative that male judges are generally better skilled than female judges. To the extent to which this might be true, which I personally believe not to be, there is a need to seriously assess the extent to which women are exposed to opportunities men are generally exposed to, which allow men to develop the necessary skills and expertise required to be provided leadership responsibilities in the judiciary. 

I submit that Ramaphosa and his advisors should critically and contextually engage section 174(1) of the constitution and determine whether there is a woman who is appropriately qualified to become the next chief justice of South Africa. In my view, Justice Mandisa Maya should be appointed as the next chief justice. To her credit, she is not only a female candidate, but a leader with integrity and a quality judge that has demonstrated her leadership qualities and ability to provide intellectual guidance to other judges. 

But most importantly, as almost all the judges who presided at the supreme court of appeal and those who acted in that court usually state when interviewed by the JSC, she is a unifier who transformed the supreme court of appeal to be an inclusive court where those who are called to serve in that court feel welcomed. She is also the third most senior judge in the country. Before she became a judge, she was an attorney’s clerk, court interpreter, prosecutor, law lecturer and practising advocate. She first acted as a judge in 1999 and was appointed permanently in 2002. She was appointed to the Supreme Court of Appeal in 2006. She was appointed as the deputy president of the Supreme Court of Appeal in 2015 and as president in 2017. 

She has relevant academic qualifications: B Proc, LLB and LLM. Most importantly, she has contributed to the growth of the jurisprudence of law within the Southern African Development Community region by acting as a judge in the supreme court of Namibia and the appeal court of Lesotho. I am not sure if there is any person who can legitimately question her credentials. Her extensive judicial experience, integrity, high moral standards, and fortitude as well as ability place her in a better position to lead the South African judiciary. 

I submit that Ramaphosa has been presented with a clear opportunity to demonstrate his own commitment to gender equality. South Africa has lacked behind countries such as Lesotho, Liberia, Malawi, Nigeria, Sierra Leone and most recently Kenya, in the appointment of female chief justices. Kenya’s president in 2021 announced the appointment of Justice Martha Koome as the first female chief justice of the supreme court of Kenya. This is a historic moment in the African continent which South Africa should emulate based on merit.

In 1996, Mandela appointed Ismael, the then deputy president of the Constitutional Court, as the chief justice of South Africa. He effectively removed him from the Constitutional Court and placed him at the supreme court of appeal. In other words, there is nothing in our law that prevents Ramaphosa from removing Maya from the supreme court of appeal to lead the judiciary as the chief justice at the Constitutional Court.

In my view, out of all the candidates, gender aside, Maya is more deserving to lead the judiciary for the next 12 years. Her appointment as chief justice will provide the judiciary with the necessary stability over a period of time. If I was a male candidate nominated to compete for the chief justice position where there is probably a better candidate for the post, who happens to be female, I would humble myself, understand the historic moment and graciously decline the nomination, despite my obvious ambition. But, I am not.

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Clement Marumoagae
Clement Marumoagae is an associate professor at the University of Witwatersrand, school of law. He is a practising attorney and holds an LLB LLM (Wits), LLM (NWU) and PhD (UCT).

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