President Cyril Ramaphosa’s advisory panel, led by Navi Pillay and tasked with recommending who should be the next chief justice, will meet before the first deadline in a novel approach to identifying candidates.
On Thursday, acting spokesperson in the presidency Tyrone Seale said the panel was due to hold a planning meeting before Friday’s deadline for public nominations for top judge.
Members of the public have until Friday to nominate candidates. This follows Ramaphosa’s September 16 announcement of a new process. While not required by law, he will consult widely before choosing who will take the helm.
Ramaphosa chose six panellists he deems “eminent persons with relevant experience” to guide his decision-making on this key position in SA’s constitutional democracy.
The incumbent, chief justice Mogoeng Mogoeng, took long leave in May and will retire on October 11. Last week, Mogoeng — who is both a jurist and a lay preacher — began a countrywide tour delivering a “message to SA” from the pulpit.
Mogoeng told congregants last week: “I say it with all sense of humility, no man can stop me from doing what I want to do, only God can.” During the same sermon, Mogoeng hinted at his availability to run for political office.
Back in the office of the chief justice, Mogoeng’s deputy, Raymond Zondo, is acting in his stead while also overseeing the compilation of the state capture inquiry’s final report. It will collate three years of public testimony on state capture, corruption and fraud.
On Wednesday, the high court granted Zondo’s application for a three-month extension for the completion of the commission’s work. The document must now be tabled by December 31, meaning Zondo will continue fulfilling two taxing roles until Mogoeng’s replacement is appointed.
The incoming chief justice will start their new job only once Ramaphosa’s six-week advisory process has run its course. He has set out the plan meant to promote transparency and encourage public participation.
Members of the public must stipulate their preferred candidate’s suitability to be chief justice, highlighting proven legal and leadership skill. The nominee must approve their recommendation. Nominations require endorsement from at least one professional body or non-government organisation focused on the law.
After Friday’s deadline for the public nominations with all supporting documents, the submissions will be published on the presidency’s website on Monday, with personal information redacted.
Next, written objections to nominees may be lodged. These complaints must be submitted in writing by October 15. From mid-October the panel will begin shortlisting who is left from three to five candidates.
The panel must report to Ramaphosa by October 29. Based on this input Ramaphosa will decide which candidates to refer to the Judicial Service Commission (JSC) and political leaders for consultation. Traditionally, the JSC has held a public interview with the president’s preferred candidate before the president formally appoints them.
The president is at least one month away from learning who the advisory panel suggests he appoint as SA’s number one judge. Ramaphosa’s consultative approach has been largely welcomed, but doing so four weeks before Mogoeng’s exit — which has been known since he took the job — and the panel’s composition has raised some eyebrows.
The advisory panel is headed by Navi Pillay, a judge in the International Court of Justice from 2008 to 2014. In 1995, she briefly served as an acting high court judge in KwaZulu-Natal. She is the only panellist who has worked as a judge, and most of her experience is not in SA’s courts.
The remaining panellists are justice minister Ronald Lamola, former justice minister Jeff Radebe, former public protector Thuli Madonsela, HIV/Aids and LGBTQI activist Mmapaseka “Steve” Letsike, and law professor Ziyad Motala, who teaches at Howard University in Washington, the US.
The panel’s makeup has the EFF and Freedom Under Law (FUL) concerned. One high court judge, who asked not to be named, told Business Day the selection was baffling.
Ramaphosa is personally linked to two panellists. He and Radebe are brothers-in-law because first lady Tshepo Motsepe and Bridgette Radebe (née Motsepe) are sisters. Motala co-authored a book on constitutional law with Ramaphosa, published in 2002.
In an opinion piece published by the Sunday Times in August, Motala described “sloppy jurisprudence emanating from our highest court” and warned the “constitutional project is in jeopardy”. He called Mogoeng’s leadership “derelict” and claimed the Constitutional Court hearing former president Jacob Zuma’s rescission plea brought the court’s competence into question.
Lamola sits on the JSC, which will publicly interview the ultimate candidate(s) in any case. Former justice minister Radebe is SA’s longest-serving cabinet member, whom Zuma appointed justice minister after firing Enver Surty in 2009.
“Radebe was right there when vital institutions in the justice sector faced headwinds. He might one day want to explain what his role was in all this,” wrote former acting chief justice Dikgang Moseneke in his judicial memoir, All Rise. Again, Radebe is “right there” as the judiciary faces headwinds in 2021.
The panel’s sole judge has no experience in the apex court. Another concern regarding the panel is the absence of any practising legal professionals, such as judges and lawyers, who represent professional groups.
According to the constitution, the president selects a preferred nominee(s) for chief justice, after which they must consult with the JSC and leaders of political parties in parliament.
“The chief justice occupies a vital position in our democratic constitutional order. It is therefore appropriate that all South Africans should have an opportunity to witness and participate in the selection,” said Ramaphosa.
He urged the public to nominate “suitably qualified candidates for this critical position” and provide the required paperwork.
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