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Lose the sideshows: Legitimacy of Chief Justice selection process rests on JSC’s conduct

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

If you are interested in how sausages, laws and politics are made, keep your eyes on Sandton from 1-4 February 2022 when the final four candidates for the country’s second top job of Chief Justice will be grilled by the Judicial Service Commission.

The four candidates, President of the Supreme Court of Appeal Judge Mandisa Maya, Gauteng Judge President Dunston Mlambo, acting Chief Justice of the Constitutional Court Raymond Zondo, and Constitutional Court Judge Mbuyiseli Madlanga, are no strangers to being grilled.

The looming date with the South African Fantastic Four of eminent jurists, if you allow me to use reference to the fictional superhero team in American comic books, has been overshadowed by unending debate about the Constitution and criticism of judges. 

You would even have thought that such debates are not commonplace in constitutional democracies birthed during the Third Wave of democratisation in the late 20th century.

Just as an example, the furore in the Philippines after the ouster of President Joseph Estrada, and the subsequent constitutional debate, was that among other issues, the country had to grapple with the 1987 Philippine Constitution taking the blame for the problems the country faced, including, but not limited to, political patronage and political instability. 

The interview and appointment of the Chief Justice is an event of major significance in both the legal and political landscape of South Africa. Whoever is to be appointed the next Chief Justice will have to be a superhero for the judiciary and a constitutional democracy that is characterised by rights and responsibilities, freedom and accountabilities.

The individual will be vested with far-reaching powers and is expected to be steeped in legal, constitutional and democratic credentials. Not only will the entire process be an event of note in the calendar of the South African judiciary; it has the potential of being history in the making with the possible appointment of Justice Maya as South Africa’s first female Chief Justice.

If appointed, Maya will join the likes of female judges in Africa such as Martha Koome, who became Kenya’s first female Chief Justice appointed by President Uhuru Kenyatta — after beating the odds of her being less favoured than a male candidate who represented Kenyatta in the dispute over the 2017 election. The event could also be history in the making for continuing what may appear to be the tradition of appointing male Chief Justices since 1910, when John Henry de Villiers was appointed the first Chief Justice for the Union of South Africa.

The need for fairness and objectivity, transparency, independence and impartiality, competence, diligence and ethics, merit, and diversity of the Bench of the Constitutional Court makes the forthcoming Judicial Service Commission (JSC) interviews a subject of national importance.

These underlying principles for the selection and appointment of judicial officers are important guidelines adopted by the Southern African Chief Justices’ Forum Conference and Annual General Meeting, in Lilongwe, Malawi, on 30 October 2018.

The total legitimacy of the appointment process to be undertaken by the JSC hinges in part on the interviewing panel observing these principles and how well behaved the politicians will be on the day. Unfortunately, we cannot get rid of politicians from the panel as their participation is mandated by the beleaguered Constitution.

According to Prof Pierre de Vos, “The presence of politicians on the JSC does not resolve the dilemma, but it does address some of the concerns. Their participation in the appointment of judges enhances the democratic legitimacy of the judiciary as it injects a democratic element in the selection process, thus minimising the risk of creating a judiciary completely out of touch with the democratic sentiment, and/or a judiciary actively working to undermine the elected branches of government.”

The political nature of the JSC appointment or political influence in the JSC appointments have an omnipresence. The public can only hope that legal practitioners on the panel behave in an exemplary fashion by demonstrating some skilled and informed questioning of the candidates.

So far, the nomination and selection process has applied highly exacting standards befitting the importance of the Constitutional Court. The ball is now with the JSC to ensure that its interviewing process does not disappoint the public and the legal professions.

The public should not be exposed to unnecessary use of Latin maxims such as vigilantibus, non dormientibus, iura subveniunt (the Civil law is made for those who are diligent in protecting their own rights) in questioning the applicants, as if the candidates are at their first-year Introduction to Roman Law lecture.

The panel chairperson must ensure that it will not again be accused of a palpable appearance of bias and letting politics trump conscience and excellence or excluding talent from the Bench.

The founding affidavit of Casac Executive Secretary Lawson Naidoo, in an application in the Johannesburg High Court to overturn the outcome of JSC interviews in 2021 for candidates to fill vacancies at the Constitutional Court succinctly draws a picture of what the interviews are not about:

“The interviews are not a platform for party politics; they are not there for the JSC to investigate and evaluate complaints against judges; and they are not there to give commissioners a chance to quibble with judgments they lost as litigants. Nor do they exist to enable individual commissioners to ventilate grudges against judges… Party political considerations and political agendas should play no role in the JSC’s decisions and processes. The JSC’s obligation to guard its independence — and, through it, the judiciary’s independence — rests on each individual commissioner as well as the JSC’s chairperson who has the ultimate responsibility to control the conduct of meetings, interviews, and deliberations.”

May the best woman or man win. DM

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