what it takes to do the job well

South Africa’s Constitutional Court has been a beacon during a decade of political uncertainty and turmoil.

More recently, the country’s highest court issued an eloquent and groundbreaking judgment in favor of the defense of the rule of law and constitutional order. The June ruling imposed a prison sentence on former President Jacob Zuma for contempt of court, citing his refusal to heed the court’s order to appear before Zondo’s commission of inquiry into the capture of the State.

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There could be no clearer or stronger sign of the independence of the judiciary than the judgment of Judge Sisi Khampepe, written on behalf of the majority of the court.

Nonetheless, question marks hang over the court due to serious governance failures. The mistakes that were recently made in a judgment that resulted in the modification of the final order suggest that all is not as it should be in South Africa’s highest court.

The court’s response to Zuma’s request to quash after he was found in contempt of court raised eyebrows. A request for annulment – in effect a request for modification or revocation of a decision – is essentially appropriate only for the correction of obvious errors of law or of fact in the judgment. But instead of dealing with the issue quickly and decisively, the Court created additional uncertainty by asking for comments on the position of international law. This is curious because the dimension of international law was not invoked in the proceedings by any of the parties.

This has encouraged other litigants, such as the public protector, to make equally futile quashing requests. These are frivolous and perhaps vexatious, because not only do they have virtually no chance of success, but also because they are on the verge of being an abuse of legal process. These are attempts to appeal through the back door.

The strength of the rule of law depends on certainty. The prospect of endless rounds of quashing requests would undermine this pillar of justice.

A second area of ​​governance failures concerns mismanagement. The court lacks numbers. Chief Justice Mogoeng Mogoeng, whose 10-year term officially ends in October, is on final leave and for all intents and purposes has stepped down. Associate Chief Justice Raymond Zondo is the Acting Chief Justice. But he has focused on completing the work of the State Capture Commission of Inquiry he chairs.

There were already two vacancies on the 11-person Supreme Court and now two other justices – Justices Khampepe and Chris Jafta, in addition to Mogoeng – are also on extended leave ahead of their impending retirement.

Recent hearings have taken place with only six permanent members of the sitting tribunal – a very unsatisfactory situation. Since the constitution allows for a quorum of eight, acting appointments have been made to supplement the number.

This has been a regular feature of Mogoeng’s time as Chief Justice. Vacancies were not filled quickly, and absences due to sabbaticals and other forms of extended leave were not judiciously staggered, so the tribunal often had as many as four acting judges.

These developments reflect poorly on the Chief Justice and underline the very important integrated management function at the post.

This begs the question: who should be the next chief justice and what qualities and attributes should be expected from the head of the judicial branch of government?

The process

Judicial appointments are made in most cases on the advice of the Judicial Services Commission. But the chief justice chairs the commission and therefore has the power to ensure that it quickly recruits and appoints judges.

Moreover, the last commission hearings in April were tainted with unruly and illegal behavior, which was – in at least one case – aided and abetted by Chief Justice Mogoeng himself. Rather than fight litigation challenging the process, the Judicial Commission simply backed down. New interviews will be conducted in October.

There is now a debate as to whether the institutional design of the Judicial Commission is the problem, or if it is the shortcomings of the people who sit as Commissioners.

Identifying the right candidate to be the next Chief Justice will not be easy. Not only does the person have to head the constitutional court, but he also heads the entire judicial branch of government. It is a very expensive role.

The role of the commission in the process of appointing the chief justice is very important. Yet the constitution is somewhat vague as to what is expected of the committee. It simply provides for the president to make the appointment “after consultation” of the commissioners as well as the leaders of the political parties represented in parliament.

This is a relatively light form of duty to consult.

However, as the account of former Associate Chief Justice Dikgang Moseneke, which appears in his excellent judicial brief All Rise, reveals:

The JSC[…]met to investigate the suitability of the appointed Chief Justice to perform his duties.

And, as he adds, in 2011, Mogoeng’s interview sparked “great public interest” and lasted almost two days, both televised.

So the judicial commission has in fact carved out an important role for itself. Although, in the end, the president can choose to ignore everything that happens during the interview.

In Mogoeng’s case, for example, the public interview revealed the weaknesses of his approach to arbitration, his lack of managerial and leadership experience (from the country’s smallest high court division). ), as well as confirmation of fears that his Christian faith outweighed any commitment to constitutional values.

Zuma, then president, appointed him anyway.

In this case, Mogeong provided strong leadership during a very trying time for the judiciary, which was most evidently manifested when he affixed his name to Nkandla’s founding judgment which concluded that the parliament and Zuma had violated the constitution.

So who next?

Former Associate Chief Justice Moseneke has been overlooked three times as Chief Justice. In my opinion, South Africa has been deprived of a great lawyer and a very good human being. And Zuma’s decisions to ignore him were motivated by bad faith and political considerations linked to Moseneke’s perceived disparagement of the results of the ANC conference that saw Zuma ascend to the presidency.

This is not to say that usually the Associate Chief Justice should be treated as being on pole position to take on the top position.

So when President Cyril Ramaphosa considers who should be the next Chief Justice, he should indeed be looking for someone with Moseneke’s grace and poise, independence of mind and leadership skills, but not necessarily its jurisprudential fulfillment.

The Chief Justice is one of the 11 judges. He or she must be able to command the respect of the other 10 members of the court – something that Mogoeng struggled with both early on, and at other times later in his tenure, as Moseneke reports in All Rise. .

But Moseneke also describes how determined and determined a chief justice must be to be ready to be in South Africa’s tough political backyard. Courts were attacked during Zuma’s tenure and continue to be undermined by his supporters now that he is no longer in office.

Above all, the Chief Justice must have a firm and unwavering commitment to constitutional democracy and constitutional values, including social justice. This should be the starting point for a serious public debate on the qualities and attributes of Mogoeng’s successor.

Richard Calland is a founding partner of the political risk consultancy, The Paternoster Group, and a member of the advisory board of the Council for the Advancement of the South African Constitution.

By Richard Calland, Associate Professor of Public Law, University of Cape Town