27 August 2021
In October, Chief Justice Mogoeng’s term comes to an end and a new chief justice will need to be appointed. This new chief justice, while the senior judicial officer within the entire judiciary, will also be the presiding judicial officer for South Africa’s apex court, the Constitutional Court. She or he will take the helm of this court at roughly the same time four new judges of the Constitutional Court take office.
If President Ramaphosa nominates as his candidate for chief justice a judge already serving on the Constitutional Court, there is then the potential for a fifth seat on the court to be filled – as Chief Justice Mogoeng’s seat as judge, and not chief justice, becomes vacant.
Quite apart from all the other requirements of the role of the chief justice, this new chief justice will potentially then lead a reconfigured Constitutional Court (almost half its seats – 5 of 11 – filled with new appointments), required to provide coherence and stability to a court and a judiciary that faces increasing and unprecedented attack.
Traits a chief justice needs to embody
Writing earlier this year in The Conversation, distinguished legal scholar (and Freedom Under Law board member) Hugh Corder identified the following as traits the next chief justice would need to embody:
- Strong credentials as an intellectual leader on the bench. The person appointed must enjoy the respect of their peers in the superior courts.
- Demonstrated support for the transformative nature of our constitutional order, evidenced in judgments that secure and promote transformation to secure social justice.
- An ability to lead the judiciary as a whole. As Corder notes, “precisely because they should be appointed for their independence of mind, among other qualities, judges need particularly nuanced and skillful leadership to ensure that they remain committed to the overall success of the constitutional project”.
- Proven administrative and managerial skills as the chief justice not only leads a department of state, the Office of the Chief Justice, requiring that she or he provide operational and administrative guidance to the entire administration of justice but she or he must also oversee the management of her own court, the Constitutional Court.
- Skillful public engagement, reassuring the general public “of the fair-minded, principled, fearless and incorruptible nature of those appointed as judges, and of the superior court system as a whole”.
These criteria are in addition to the requirements that all judicial officers be fit and proper, that they be independent-minded and capable of applying the law impartially and without fear, favour of prejudice.
It may seem a tall order – requiring that one person embody all of this. But the next chief justice must be both that exceptional candidate and an exceptional leader: able, as Corder explains, to lead both the judiciary and be a public leader.
Attacks on judiciary
This requirement to lead, always essential, becomes even more critical in a time of pronounced attack on the court and judiciary. As characterised by Justice Khampepe in the recent Constitutional Court judgment finding former president Zuma guilty of contempt of court: “Never before has this Court’s authority and legitimacy been subject to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.”
This is by no means a single threat. The nature of the argument, legal and public, directed by Ace Magashule in an attempt to undo his suspension from the ANC, the various rescission applications mounted by both the former president and the current Public Protector, demonstrate that attacks on the judiciary, its legitimacy and authority are increasingly considered fair game. The coordinated violence and looting that broke out following Zuma’s incarceration arguably demonstrates that attacks on the judiciary and the judicial process have morphed into threats against the constitutional order itself.
The most senior leader of the Constitutional Court and the of the judiciary as a whole will need to be especially circumspect when engaging in the broader political terrain. But there can be no gain saying that she or he will need to be astute, deliberate and considered in shoring up and promoting the judiciary’s legitimacy and authority.
A fractured ANC
This is not a new calculation. Delicately balancing principle and pragmatism has always been required of the Constitutional Court and its leader. But for much of its lifetime, the Court has been able to rely, as legal scholar Theunis Roux has written, on the ANC political elite for broad support and to shield it from the political repercussions of its most politically unpopular decisions (such as the death penalty) – this elite largely appreciative of the importance of the constitutional consensus and the values of supremacy of the Constitution and rule of law.
That is not true today. A fractured ANC means a fractured ANC elite. And those aligned with Zuma and the RET faction, far from protecting the judiciary from decisions that may register as unpopular, seek actively to incite and inflame derision for the judiciary.
Now more than ever, a chief justice who is principled, courageous and articulate is needed.
Nicole Fritz is the CEO of Freedom Under Law.
This piece first appeared in News24, on the 27th August 2021, available here.