Tuesday, January 18

The new Chief Justice of South Africa has a vital role ahead of him


Most African constitutions of the last 30 years, led by an independent Namibia in 1990 and strongly backed by South Africa in 1994, have authorized the supreme court to determine the limits of “government according to law.” This is naturally consistent with both the Rule of law and the doctrine of separation of powers.

However, the inevitable tensions created with the legislature and the executive must be handled prudently. And outbreaks of political controversy, mostly unjustified, have been common.

This begs the question: is this pullback starting to have an effect?

The scope of the executive’s response is most commonly seen in attempts to influence judicial appointments. And there is nothing but appointments to the office of Chief Justice. This is where a certain measure of discretion is appropriately given to the head of state.

South Africa is at a critical juncture. Chief Justice Mogoeng MogoengThe 10-year term has just ended. President Cyril Ramaphosa has belatedly started the look for his successor.

Ultimately, the decision must be made by the president. As a qualified lawyer, Ramaphosa will know how important the appointment is, particularly as the courts face an unprecedented level of animosity from those who seek to rule through abuse of power and corrupt practice. And because the criminal justice system falters due to ineffective policing, an empty fiscal authority, and a climate of impunity in many sectors.

Ups and downs

Chief Justice Mogoeng’s tenure was good in some parts.

Your appointment initially generated great controversy, given his relative inexperience as a judge and leader, and because President Jacob Zuma chose him. its interview of the Judicial Service Commission it made matters worse, confirming fears that he would not be up to the task.

The skeptics were initially proven wrong. The magistrates of the Constitutional Court seemed to close ranks in their support. The jurisprudence emanating from what was then a strong bank seemed to hold true to the standards set by the courts led by their predecessors, the chief judges. Arthur Chaskalson, Pius langa and Sandile Ngcobo.

However, some concern was expressed about the capricious behavior of the Judicial Service Commission in 2011-2014, when interviews for judicial appointments became a forum for party politics. There was also concern about the imperious management style in which Mogoeng ran the Office of the Chief Justice and his enthusiastic acceptance of the trappings of office.

However, the unanimous decision in the Nkandla case In early 2016, holding President Zuma accountable for unauthorized spending on his private property tended to rightly mask many doubts that may have existed.

It was undoubtedly the jurisprudential climax of Chief Justice Mogoeng’s tenure. This was especially important given the unbridled pace at which ‘lawfare’ – The frequent recourse to the courts to resolve political disputes – developed in the last years of the Zuma presidency. This put great pressure on the judiciary.

The Chief Justice 2015 application meeting with the president, senior judges, and ministers to address public attacks by the executive (and ruling ANC leaders) against the courts was a timely intervention.

Sadly, the last few years of Mogoeng’s tenure have been marked by far less positive characteristics. These have influenced attitudes throughout his tenure. The following aspects detract from your performance:

  • His grumpy dissent in the Economic Freedom Fighters case in late 2017, when he publicly accused the overwhelming majority of his colleagues of embarking on “A textbook case of judicial overreach”;
  • Its growing bank absence for having to attend to his many other functions as President of the Supreme Court;
  • His inability to act quickly to fill vacancies on the Constitutional Court. The court now has five vacancies out of eleven;
  • His serious leadership failure as chairman of the Judicial Service Commission. It was unable to maintain an impartial level of respect and decorum among its members, leading to an inappropriate level of questioning during the appointment-interview process
  • The appalling inability of the Judicial Service Commission to ensure a firm commitment to judicial accountability. This is exemplified by the serial evasion of those allegedly guilty of misconduct; and
  • its pronouncements on the Israeli-Palestinian conflict and on the need for COVID-19 vaccines. He tried to evade responsibility for both by claiming religious freedom.

Few would deny their right to subscribe to a faith, often stated. Yet he seemed oblivious to the devastating public impact of his actions, which cannot be divorced from the high office he holds.

In fact, these incidents would make many wonder about the rationality of their legal judgments.

Judge Mogoeng’s legacy will ultimately be evaluated with the benefit of time. For now, his successor faces great challenges in restoring respect for the office of Chief Justice.

Elect a new Chief Justice

the Constitution (Article 174 (3)) authorizes the president to appoint a president of the Supreme Court, after consulting the judicial commission and the leaders of all the political parties of the National Assembly. This means that you should consult in good faith, but you are not bound by the advice given.

Ramaphosa configure a panel, chaired by a former judge, to facilitate public participation in his final decision. The panel is mandated to produce a shortlist of three to five candidates. The chairman will choose as many as he deems appropriate to be interviewed by the commission (probably no more than two).

While this is commendable, in terms of openness and participation, the process yielded a long list of eight, who formally qualified with the basic criteria for judicial appointment. Four are clearly not qualified to be Chief Justice and owe their nominations to a broader political stance. The remaining four would have been on the short list of almost all expert observers.

The panel’s terms of reference specify that it will evaluate candidates based on the following criteria:

  • aptitude and property to hold the office of President of the Supreme Court;
  • age and citizenship;
  • suitability for appointment, including immaculate integrity, moral leadership, upholding the constitution and its transformative character, independence of spirit, a strong work ethic, etc.
  • judicial competence; and
  • sensitivity and objectivity towards vulnerable groups.

The formulation of these criteria is to be applauded, particularly in light of the systemic failure of the Judicial Service Commission to clearly delineate the criteria it uses for judicial appointment.

Looking to the future

A strong, courageous, and dedicated Chief Justice will provide the desperately needed leadership to change the administration of justice. Appointing anyone who does not possess these qualities in abundance is likely to further erode the rule of law as a fundamental cornerstone of South African democracy.

Given the regional balance of power, the negative impact on the South African community will be palpable.The conversation

Hugh Corder, Emeritus Professor of Public Law, University of Cape Town

This article is republished from The conversation under a Creative Commons license. Read the Original article.


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