Legitimacy of Chief Justice appointment rests with JSC

If you are interested in how sausages, laws and politics are made, keep your eyes on Sandton from 1-4 February 2022, when the final four candidates for the country’s second top job of Chief Justice will be grilled by the Judicial Service Commission (JSC).

The four candidates, President of the Supreme Court of Appeal Judge Mandisa Maya, Gauteng Judge President Dunstan Mlambo, Acting Chief Justice of the Constitutional Court Raymond Zondo, and Constitutional Court Judge Mbuyiseli Madlanga, are no strangers to being grilled.

The looming date with the South African Fantastic Four of eminent jurists, if you allow me to refer to the fictional superhero team, has been overshadowed by unending debate about the Constitution and criticism of judges.

You would even have thought that such debates are not commonplace in constitutional democracies birthed during the third wave of democratisation in the late 20th century.

The interview and appointment of the Chief Justice is an event of major significance in both the legal and political landscape of SA. Whoever is to be appointed the next Chief Justice will have to be a superhero for the judiciary and a constitutional democracy that is characterised by rights and responsibilities, freedom and accountabilities.

The individual will be vested with far-reaching powers and is expected to be steeped in legal, constitutional and democratic credentials. Not only will the entire process be an event of note in the calendar of the South African judiciary, but it also has the potential of being history in the making with the possible appointment of Justice Maya as South Africa’s first female Chief Justice.

If appointed, Maya will join female judges in Africa such as Martha Koome, who became Kenya’s first female chief justice appointed by President Uhuru Kenyatta – after beating the odds of being less favoured than a male candidate who represented Kenyatta in the dispute over the 2017 election. The event could also be history in the making for continuing what may appear to be the tradition of appointing male chief justices since 1910, when John Henry de Villiers was appointed the first chief justice for the Union of South Africa.

The need for fairness and objectivity; transparency, independence and impartiality; competence, diligence and ethics; merit and diversity of the Bench of the Constitutional Court makes the forthcoming JSC interviews a subject of national importance.

These underlying principles for the selection and appointment of judicial officers are important guidelines adopted by the Southern African Chief Justices Forum Conference and Annual General Meeting, in Lilongwe, Malawi, on 30 October 2018.

The total legitimacy of the appointment process hinges in part on the interviewing panel observing these principles and how well behaved the politicians are on the day. Unfortunately, we cannot get rid of politicians from the panel, as their participation is mandated by the beleaguered Constitution.

The public can only hope that legal practitioners on the panel behave in an exemplary fashion by demonstrating some skilled and informed questioning of the candidates.

The panel chairperson must also ensure that it will not again be accused of a palpable appearance of bias and letting politics trump conscience and excellence or excluding talent from the Bench. May the best woman or man win.