Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
29 July 2011

On the appointment of a Chief Justice

Who will President Jacob Zuma appoint as South Africa’s new Chief Justice? Will he appoint a conservative man to try and limit the ability of the Constitutional Court to develop a transformational jurisprudence or will he appoint a progressive woman or man who will ensure that the highest court continues to pursue the transformative values, embodied in the Constitution, within the limits of the law and the separation of powers doctrine ? And what are the formal legal qualifications that any candidate for appointment should have? For example, can the President pick anyone off the street to serve as Chief Justice?

Well, it is worth quoting the applicable subsections of section 174 of the Constitution:

  1. Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.
  2. The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.
  3. The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

This means that the President can — as a matter of formal constitutional law —  appoint anyone with the appropriate legal qualifications and some practical experience or academic expertise in the field of human rights and constitutional law as Chief Justice – as long as that person is “a fit and proper person”. As long as the person has a legal qualification and some experience in the field, the appointment would probably pass constitutional muster.

However the President can only appoint a fit and proper person as Chief Justice. Arguably this will exclude the appointment of Menzi Simelane, whose “fit and proper” status is currently being challenged before our courts. However, this will not exclude the appointment of any number of other practicing lawyers, academics or judges serving on any court — whether the Constitutional Court or any other court in South Africa.

Although the President must consult the Judicial Service Commission (JSC) and the leaders of political parties represented in the National Assembly before he appoints anyone, there is no legal requirement for how such consultation should take place. Neither is there a legal requirement that the President should actually change (or even formally be seen to at least consider changing) his preference for the candidate of his choice because of overwhelming objections from the JSC and opposition parties.

However, the President would be ill advised to appoint a controversial person as Chief Justice who is perceived to be a slavish and obsequious kowtower to the government of the day and whose appointment is reasonably opposed by the JSC and all opposition parties. Although any President would understandably want to appoint a Chief Justice who broadly shares the values and vision of the governing party, such a President —  if he believes in constitutionalism and democracy and wants the constitutional democracy with its checks and balances to work properly  — will also want to make an appointment that will install public confidence in the judiciary.

The trick is to find the right balance by appointing a credible and respected lawyer (one who is not viewed as willing to take instructions from the government) as leader for our judiciary, while also ensuring that this appointee broadly shares the professed transformational agenda of the ANC government.

An appointment that would severely diminish the credibility of the Constitutional Court and of the democratic system would be disastrous for ordinary South Africans who might want to approach the Court to protect their rights and to advance their social and economic well-being in the face of a sometimes lethargic and unresponsive state suffering from “capacity constraints” and a culture of service to only this who are politically connected or who can pay.

It would also be disastrous for the governing party and its leaders. As the head of the government and the governing party, the President must surely understand that a legitimate and mostly trusted Constitutional Court is a very important prerequisite for the continued legitimacy of the state and, indeed, of the governing ANC. Given governance failures (or as we so euphemistically sometimes calls it, “challenges”) the government of the day and the governing party needs a credible court to serve as a safety valve where citizens can let off steam and where the government can be prodded to act in a way that would provide a better life for all – not just for the few.

If citizens – aggrieved at corruption, nepotism, service delivery failures, police brutality and social and economic rights violations – felt that they could not influence the policies of the governing party (except if they had money and political connections) and stopped believing that they had a chance to be heard and listened to at the Constitutional Court, the day when we have our own Tahrir Revolution here in South Africa will not be far away.

As I have written before, the obvious choice for Chief Justice — somebody who has shown in many judgments including the Van Heerden judgment dealing with affirmative action that he embraces the transformative vision of the Constitution — is the Deputy Chief Justice. Appointing him would signal to COSATU and to more progressive elements within the ANC that the President supports the transformative vision that our Constitutional Court has said is embodied in the Constitution.

The President may, however, wish to appease the patriarchs and the conservatives who are opposed to progressive values and who wish to limit the influence of the Constitutional Court to promote these values within the confines of what the separation of powers doctrine allows. Such a radical appointment might then be made by tapping a relatively new member of the Constitutional Court such as Justice Mogoeng Mogoeng who has emerged as the most conservative justice on the current court and who has signaled that he is not entirely on board with gay rights issues and has also — in the McBride case — displayed a deferential attitude towards the executive.

Or, the President might want to be bold and demonstrate to the women’s lobby that he is serious about the empowerment of women — despite his colourful private life and his seeming patriarchal lifestyle. He may then want to appoint somebody like Justice Bess Nkabinde who has shown during her tenure on the Constitutional Court that she is deeply committed to social justice and respect for the dignity of all people. She is also a mensch — somebody who is admirable in every way and shows fortitude and firmness of purpose without ever forgetting that ordinary people are affected by the law. Such an appointment would be ground-breaking as she would then become South Africa’s first woman Chief Justice.

Otherwise the President could cast the net wider and appoint one of the leaders of any other court in South Africa. Judge Lex Mpati of the Supreme Court of Appeal (SCA) is a respected jurist and a firm believer in the independence of the judiciary. Justice Dunstan Mlambo, who is Judge President of the Labour Court is another possible candidate, a person of high integrity and ability.

By writing this I am not wishing to punt any particular person for the job — it is for the President to decide who he wishes to appoint. But I wish to make two points, which I believe are worth making.

First, who President Zuma appoints will say much about his political views and whether he is progressive or deeply conservative. If he appoints a slavish pro-government and anti-transformation candidate, then the progressives in the ANC will have even more to be worried about than they currently have. If he appoints a safe and steady person, it would reinforce the perception that the President is trying to be all things for all people (although a safe choice in this regard would not be unwise). He can also wow the chattering classes and the progressives in Cosatu and within the SACP and the ANC by appointing a more progressive judge like Moseneke or Nkabinde.

Second, there is no shortage of judicial talent to choose from. There are quite a few progressive, independent minded candidates who broadly share the transformation agenda of the government of the day who could be appointed as Chief Justice. Making an appointment should therefore not be too difficult. Hopefully, the President will be led by his purported progressive party to appoint somebody who will not try and turn the Court away from its transformation agenda and will not wish to give the government a broad scope to do as it pleased – even if it failed to serve ordinary citizens.

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