Seven candidates for the position of chief justice are set to respond to hundreds of submissions on their candidacy.
On Monday the chair of an advisory panel to the president announced the latest step in a new process to decide on the head of the judiciary. President Cyril Ramaphosa expects a short list of three to five names by the end of the month.
Navi Pillay, former UN high commissioner on human rights, chairs the group to short-list names for the job. “The panel will now give each nominee an opportunity to comment on the public submissions made in respect of his or her nomination,” said Pillay.
According to the constitution, the chief justice must be a “fit and proper” person, though what that means is not explained in full. Leading the judiciary, heading the apex court and chairing the Judicial Service Commission (JSC) are among the chief justice's tasks.
The panel wants someone with qualifications and expertise reasonably expected of a chief justice and who meets the law’s requirements on age and nationality, can defend, protect and uphold the supreme law, advances social justice and access to justice, promotes judicial performance, has impeccable integrity, and is sensitive to race, gender, disability, LTBTI and vulnerable group issues.
The law stipulates that a judge is relieved of active service in one of two ways: either when they turn 70 or — if the candidate is already a Constitutional Court judge — after their term (running for 12 or 15 years) ends, whichever comes first.
Those in the running are acting chief justice Raymond Zondo, apex court justice Mbuyiseli Madlanga, public protector advocate Busisiwe Mkhwebane, appeals court president Mandisa Maya, Gauteng judge president Dunstan Mlambo, Western Cape judge president John Hlophe, and senior advocate Alan Nelson.
On Friday, the Council for the Advancement of the SA Constitution (Casac) sent a letter about the candidates to the panel. That day, the Helen Suzman Foundation (HSF) wrote to the president’s office, emphasising the chief justice’s role.
“The current judicial climate makes the appointment of a person with these qualities all the more important,” said the foundation’s letter signed by executive director Francis Antonie.
Casac said the panel Hlophe “has the requisite knowledge and expertise” and leads the Western Cape High Court, which is “busy and complex” to manage. Casac executive secretary Lawson Naidoo said Hlophe is an “able” judge but controversies “bring his fitness for office into question”.
Those controversies include a JSC finding in August that Hlophe was guilty of gross misconduct. The JSC referred him to the National Assembly for an impeachment vote. Hlophe is now challenging both the JSC and the assembly in court. He is also the subject of a complaint lodged by colleague judge Judith Goliath. If 62-year-old Hlophe is appointed, he could serve for eight years.
The foundation is of the view Hlophe is a “completely unsuitable candidate for the position” and falls dismally short of the panel’s listed criteria. The foundation objects to Hlophe’s short-listing and appointment. “It is, in fact, inconceivable that he has been nominated for this post,” Antonie told Ramaphosa.
Nine years ago Madlanga, who has high court experience, joined the Constitutional Court bench from the bar. Naidoo deems him “fit and proper” and highlights Madlanga’s seniority on the Constitutional Court bench. As he has less than 15 years’ public service he could serve in the apex court until May 2028.
According to Naidoo, Madlanga “commands the respect of his peers and colleagues” and boasts institutional knowledge about the top court, which makes him “eminently suitable” for the job.
Maya, who is in her third year leading the Supreme Court of Appeal (SCA), has acted in the apex court. Casac deems her “eminently suitable” given her experience. She has presided in various courts, and is involved in organisations driving women empowerment and tackling gender-based violence.
While the current public protector, Mkhwebane, has the requisite legal qualifications in that she holds a BProc and an LLB, Naidoo insisted she is “not fit and proper” to become chief justice. He said Mkhwebane’s experience is limited to civil service. “The candidate has no judicial experience.”
She faces a pending impeachment process in parliament, court judgments feature criticism of her ability to fulfil her role, and she is the subject of perjury charges over allegations of lying under oath during a case.
According to the foundation, Mkhwebane is “completely unfit to hold the office” of chief justice, does not meet the panel’s own expectations. Antonie submitted that, as with Hlophe, it is “equally inconceivable that she has been nominated for this post”.
Mlambo leads the country’s busiest and most complex high court division, wrote Naidoo. He has experience presiding in the labour court, high court and appeals court. To Casac, he is “fit and proper” with a wealth of experience and eight years to serve. Mlambo is a well-regarded judge, writes Naidoo
Senior advocate Nelson has presided in the Western Cape High Court and, in Naidoo’s view, is a “fit and proper” person for top judge. At 69, he is one year away from mandatory discharge, however.
“The candidate’s only judicial experience is as an acting judge and he is at an advanced age which may render him unsuitable for the position,” wrote Naidoo.
Zondo has presided in the apex court for nine years. Naidoo told the panel: “He is the most senior judge on the court currently.” Zondo is 61, has been in active service for over 15 years and his term of 12 years in the apex court ends in 2024. If chosen, Zondo would have three years as top judge.
“He has acted as chief justice on a previous occasion and has institutional knowledge of the Constitutional Court. The candidate is suitable,” wrote Naidoo. However, Casac's letter raised concern about Zondo’s administrative skills, drawing on an apex court judgment about the state-capture inquiry.
Not only does Casac highlight aspects of each candidate’s profile, the organisation proposes the panel consider further criteria as it narrows the list of seven to as little as three names, which will be sent to Ramaphosa by Friday, October 29.
They are: industriousness in leading the courts, academic leadership, utmost independence from interference, steadfast commitment to the constitution (including its transformative vision and appreciation of diversity) all of which can be gauged from judgments (where candidates have served as judges) and possibly extracurricular work.
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