Most of Africa’s constitutions over the past 30 years, ruled by an independent Namibia in 1990 and strongly approved by South Africa in 1994, have allowed the high court to set government boundaries “by law”. This naturally coincides with the rule of law and the doctrine of the distribution of power.
However, the inevitable tensions created with the legislature and the executive must be navigated sensibly. Explosions of political controversy, mostly unjustified, have been commonplace.
This begs the question: has this push back started to have an effect?
The extent of the executive’s struggle is most often seen in attempts to influence judicial appointments. And there is nothing more than appointments to the post of High Justice. That is a measure of discretion granted by the head of state.
South Africa is at a critical juncture. Mogoeng Mogoeng has just completed his 10-year term as Chief Justice. President Cyril Ramaphosa has been late looking for a successor.
In the end, the decision is up to the president. As a qualified lawyer, Ramaphosa will know how important a nomination is, especially since the courts tend to have an unprecedented level of those who want to govern because of their abuse of power and corruption. Because the criminal justice system is not an effective police force, due to the mere judicial authorities and the climate of impunity in many neighborhoods.
Highs and lows
Mogoeng’s tenure in the High Court was good in part.
His appointment initially caused a great deal of controversy, as he had little experience as a judge and leader and was elected by President Jacob Zuma. The interview with the Judicial Service Commission deteriorated and he did not confirm his fears.
Skeptics were initially wrong. It seems that the judges of the Constitutional Court were closing down the levels in his favor. The jurisprudence of the then strong bank then held to the models established by the courts ruled by its predecessors, Arthur Chaskalson, Pius Langa and Sandile Ngcobo.
However, there were some concerns about the poor performance of the Judicial Service Commission in 2011-2014, when talks for judicial appointments became a forum for party politics. There was also unease about Mogoeng’s unbridled management style and the embrace of his willingness to take office, which led to the Office of the Chief Justice.
However, the unanimous decision in the Nkandla case in early 2016, when President Zuma took into account unauthorized spending on his private farm, tended to hide many doubts that might exist.
Undoubtedly, the highest point of Mogoeng’s tenure in the High Court was jurisprudence. This was especially important in the last years of Zuma’s presidency, given the “law” – the pace at which he often went to court to resolve political disputes. This put a lot of pressure on the judiciary.
In 2015, it was appropriate intervention to address public attacks on the courts (and ANC leaders of the government) by the Supreme Court in 2015 to meet with the president, judges and ministers.
Unfortunately, there have been many positive features in the last years of Mogoeng’s tenure. This has had an impact on his attitudes towards his entire tenure. The following aspects are excluded from its activity:
- His disagreement with the Economic Freedom Fighters case in late 2017, when he accused the vast majority of his colleagues of making a “textbook case of judicial abuse”;
- Not being at the table more and more, having to perform many other functions as chief judge;
- Failure to move quickly to fill the positions of the Constitutional Court. The court now has five out of eleven vacancies;
- Serious failure of leadership as chairman of Judicial Service Committee. He did not maintain an equal level of respect and decoration among the members, creating an inappropriate level of questioning in the appointment-interview process.
- A tremendous inability to secure a firm commitment to the judicial responsibility of the Judicial Service Commission. An example of this is the serious escape by those guilty of misconduct; and
- His statements on the Israel-Palestine conflict and the need for COVID-19 vaccines. He tried to avoid responsibility for both by claiming religious freedom.
Few would deny their right to subscribe to a faith. In any case, it seems that he did not care about the destructive public impact of his actions, as he could not be divorced from his main position.
Indeed, many of these facts would call into question the rationality of his judicial judgments.
The legacy of the Mogoeng court will be valued over time. For now, his successor faces major challenges in respecting the position of Chief Justice.
Choosing a new Chief Justice
The Constitution (Article 174 (3)) authorizes the President to appoint a Chief Justice after consultation with the Judicial Commission and the leaders of all political parties in the National Assembly. This means that he should consult in good faith, but he does not bind the advice given.
Ramaphosa set up a table headed by the former jury to facilitate public participation in the final decision. The jury is ordered to submit a list of between three and five candidates. The chair will select all that the commission deems appropriate (probably no more than two).
While this is commendable, in terms of openness and participation, the process has yielded a long list of eight that have been formally classified as basic criteria for judicial qualification. Four are not, in fairness, qualified to be chief judges, and they owe it to a broader political stance. The remaining four would be on the short list of almost all knowledgeable observers.
The jury’s reference determines that the candidate will evaluate them according to the following criteria:
- Adequacy and appropriateness of holding the office of Chief Justice;
- age and citizenship;
- including suitability for appointment, integrity to integrity, moral leadership, defense of the constitution and its transformative nature, independence of spirit, strong work ethic, etc .;
- judicial jurisdiction; and
- sensitivity and objectivity towards vulnerable groups.
The formulation of these criteria should be applauded, especially in the light of a system that does not clearly define the criteria used by the Judicial Service Commission for judicial appointment.
Looking to the future
A strong, courageous and responsible judiciary will provide the leadership needed to turn the justice administration around. Any appointment that lacks many of these characteristics is likely to erode the rule of law as a fundamental axis of South African democracy.
Given the balance of power in the region, the negative impact on the southern African community will be noticeable.
Hugh Corder, Professor Emeritus of Public Law, Cape Town University