President Cyril Ramaphosa has an important decision to make in appointing South Africa’s next chief justice. Equally important is how the Judicial Service Commission (JSC) will restore the public’s confidence in it after the shameful behaviour of some of its commissioners.
The importance of Ramaphosa taking an immediate decision cannot be overstated. South Africa has been without a chief justice for far too long. In terms of the Constitution, “the president as head of the national executive, after consulting the Judicial Service Commission and the leaders of the parties represented in the National Assembly, appoints the chief justice”. It is difficult, then, to reconcile how the recommendation of the JSC binds the president or unjustifiably encroaches on his powers to appoint whoever he feels is fit and proper for the position, as some have said.
The appointment of the chief justice was always going to generate much public debate, especially after Ramaphosa opened the nomination process to the public. Four names – Mbuyiseli Madlanga, Mandisa Maya, Dunstan Mlambo and Raymond Zondo – were shortlisted for the JSC to interview. What it ought to have done remains a debate among constitutional law researchers and lawyers.
In its defence, the JSC will always insist – as it did in the press conference announcing Maya as its preferred candidate – that the Constitution allows it to “determine its own procedure”.
It is unfortunate that the wait could be prolonged as threats of litigation against the JSC’s process gain traction. Not having a permanent chief justice and leader of the judiciary leaves our democracy vulnerable and the independence of the judiciary uncertain and under sustained populist attack.
Despite this legal issue, controversy seems to be never-ending at the JSC. The aftermath of what has been described as a “shambolic process” has drawn a plethora of commentary and statements from lobby groups as well as the legal profession. In the main, all condemn the lack of decorum displayed by commissioners during the interviews.
The General Council of the Bar has even called for one of the senior members of the bar, Dali Mpofu, to be recalled from the JSC on the basis that he has brought the legal profession into disrepute. The call is academic, though, as Mpofu’s two-year term representing the Advocates for Transformation at the JSC had come to an end, its national executive committee confirmed. His term was only extended for the duration of the chief justice interviews.
But that doesn’t solve all the JSC’s problems. It wasn’t only Mpofu who subjected the four candidates to humiliation, sexism and, countless times, outright disrespect. Some of the interviews lasted almost 13 hours and there appeared to be concerted efforts to taint the integrity of some of the best jurists in our country.
The very first interviews the JSC held to appoint justices for the newly formed Constitutional Court in the mid-1990s faced similar issues. This included its interview with retired justice Albie Sachs.
At the time, he was a well-known anti-apartheid activist, constitutional law theorist and former member of the ANC. He lost an arm and the sight in one eye during a terrorist attack by the apartheid regime, while living in exile. The ANC had tasked him with investigating claims of torture in the movement’s camps in Angola.
Advocate Wim Trengove led the interview, which centred on these allegations of torture of ANC captives. An impression was created in this JSC interview that Sachs had condoned “abuse and ill-treatment of ANC captives”. This was, of course, completely wrong.
Sachs had admitted on many occasions the existence of torture, denounced it and worked to root it out. In a 2016 interview for the Constitutional Court Oral History Project, Sachs described the JSC interview as an attack on his honour.
“The attack on my mind had been in the first detention, from the regime. The attack on my body had been the bomb, also from the regime. The attack on my honour came from my friends, from my side, from people I admired and respected. And it was a very lonely time for me, very lonely,” he said. These friends were the JSC commissioners.
But what is notable is what the JSC did afterwards. Arthur Chaskalson, then president of the Constitutional Court and later chief justice, made sure the JSC reflected on the incident and corrected itself. Sachs confirmed this: “I was told afterwards that as a result of the cross-examination to which I had been subjected, the commission took a decision not to allow ambush questioning of any future candidates.”
Breaking its own rule
It is therefore shocking that, more than two decades later, the JSC has put a highly respected judge such as Mlambo in the same position – or worse. Mlambo had no prior warning that an allegation of sexual harassment was to be put to him during his interview. Though JSC acting president and chairperson Xola Petse much later ordered parts of the interview expunged from the record, the harm had already been done.
“I feel pained that this rumour has now found its way into my interview, because I just feel it gives credence to the candidature I have in this position. It started and gained steam in this process. Clearly, its purpose is to poison my candidature,” said Mlambo in response to the baseless allegation.
It is for this reason that the public ought to be outraged at the “ambush questioning” of Mlambo by members of the commission, and at the misogynistic line of questioning of Maya as well as the political attack on Zondo. The JSC allowed a breach of its own rule not to allow questions of that nature, as a candidate in a state of panic and shock may not be able to answer satisfactorily and this could create the impression that they are being evasive or inadequate.
The composition of the JSC is, by constitutional design, subject to political influence. With the minister of justice and members of the National Assembly and the National Council of Provinces forming part of the JSC, it is not unthinkable or out of the ordinary that court decisions that are political in nature will be debated by the commission with the judges who write them.
But senior lawyers Griffiths Madonsela and Mpofu, supported by EFF leader Julius Malema, led the questioning of Mlambo and Zondo. And it was clear from their line of questioning that they were trying to create the impression that these two judges were biased in favour of the current president and therefore not fit and proper to be chief justice. Mlambo dismantled this impression when he defended the decisions of the court and said that the Supreme Court of Appeal and Constitutional Court had confirmed some of those decisions.
A collective effort
The code of conduct – if it exists – will have to be implemented without the JSC being dragged to court. The commissioners that brought the chief justice interviews into disrepute have to be held to account. And the JSC cannot stop there: it must make the public confident that such conduct will not be allowed again.
Although there is little confidence that the JSC will be able to self-correct, given its decline, it deserves the benefit of the doubt despite its blatant partisanship. This is because the JSC is a crucial body in a constitutional democracy. It is a creation of the Constitution that plays a fundamental role not only in the appointment and disciplining of judges, but also in all matters concerning the judiciary.
Despite being ambushed, Sachs insisted “that the process of interviews before the Judicial Service Commission was tremendous. And rather go through that bracing and abrasive process – if that’s what people think, so be it – than the old system of selection behind closed doors, followed by all sorts of rumours.” He is correct.
During apartheid, judges were appointed out of the eye of the public. It was not involved in the process as it is today. Because of this, we ought to hold the JSC accountable in upholding the Constitution and ensuring that it remains a robust space in which prospective judges are engaged with respect. With government institutions and state-owned companies captured and in a state of despair, we need to resist attempts at tarnishing the integrity of the judiciary.
It is a judiciary that has held our constitutional democracy literally by a thread.