Lindiwe Sisulu’s attack on judiciary hangs over Chief Justice interviews

If you’re currently searching with quiet desperation for reasons to be hopeful about South Africa’s future, the shortlist of candidates to be the country’s next Chief Justice should provide some optimism.

The four judges vying to be the next head of South Africa’s judiciary are all excellent candidates in their own right. It is a far cry from the situation just over a decade ago, where the Judicial Service Commission (JSC) interview process seemed little more than a box-ticking exercise to be completed in order for former president Jacob Zuma to go ahead and appoint his own favourite, Judge Mogoeng Mogoeng, over the obvious front-runner, Dikgang Moseneke.

There were serious concerns over Mogoeng in 2011 which his two-day interview did little to allay – particularly when Mogoeng described his appointment as Chief Justice as effectively divinely ordained. That Mogoeng’s decade at the helm of the judiciary would turn out to surpass those low expectations was a pleasant surprise, even if the wheels appeared to come off somewhat in the second half of his tenure. Mogoeng leaves a chequered legacy, but one which many feared would be a lot worse.

This time around, things are very different. Judges Mbuyiseli Madlanga, Mandisa Maya, Dunstan Mlambo and Raymond Zondo make up what advocacy group Judges Matter has described as certainly the strongest field for Chief Justice in South Africa’s history. There is no clear underdog, and the outcome is not easy to predict. Though Judges Matter has tipped Mlambo as the strongest candidate on paper, there are many other dimensions to consider.

Inevitably, politics will play a role. In crude terms, there are two candidates who could be described as relatively politically neutral – judges Madlanga and Maya – and two viewed as carrying some political baggage, through no fault of their own: judges Mlambo and Zondo. The latter two are perceived in some quarters as being too closely aligned with the presidency of Cyril Ramaphosa, and can accordingly expect some grilling from habitually fierce JSC commissioners such as EFF leader Julius Malema.

Although it might seem a no-brainer for President Cyril Ramaphosa to appoint a judge regarded as friendly to his administration – and it is Ramaphosa who has the ultimate say – he will also be alive to the blowback this decision could attract in this crucial year leading up to the ANC’s electoral conference.

https://www.dailymaverick.co.za/article/2022-02-01-bear-in-mind-ramaphosa-is-not-bound-by-the-jscs-advice/

But the first candidate in the hot seat, Judge Madlanga, received a generally warm reception from the JSC, in a session marked by its 10-hour length but also its cordiality. JSC commissioners appeared on best behaviour, in welcome contrast to the shocking scenes at last April’s interviews for Constitutional Court vacancies – which ended up having to be rerun in their entirety.

There was another interesting change. As Judges Matter’s Alison Tilley pointed out, for the first time in the history of Chief Justice selection via the JSC, the commission actually spelt out the criteria on which the candidates would be assessed. This intel came via commissioner Dali Mpofu, who told Madlanga that the panel would be looking at skills and experience; leadership and people skills; and administrative and management capacity.

Madlanga came into the interviews as arguably the intellectual leader of the pack, and his erudition was in full bloom. The current Constitutional Court judge cited case law from as far afield as the US and as distant historically as 1904. In a generally confident but self-deprecating display, Madlanga appeared to most enjoy himself when talking through particularly knotty aspects of jurisprudence or judicial practice.  

Not surprisingly, Madlanga declared that he believed the “core function” of the Chief Justice to be as a jurist, who should “lead from the front in terms of jurisprudence”. If this were the only criterion for appointment, Madlanga might look like an obvious winner. But two potential obstacles recurred throughout his interview: the fact that unlike the other contenders, Madlanga has no extensive experience in judicial leadership; and the fact that the term limits for Constitutional Court judges mean that Madlanga would be able to serve just three years and six months as Chief Justice before mandatory retirement.

Judging by the amount of time the JSC spent on the latter issue, commissioners seem to view this potential shortness of tenure – which would also be the situation for Zondo – as a serious concern. But the decade-plus that Mogoeng spent as Chief Justice was an anomaly in the democratic South Africa, where most predecessors have served much shorter terms.

Madlanga was quick to point this out to the JSC, although he unwisely chose the example of former Chief Justice Pius Langa (2005-2009) – and was promptly reminded that Langa had no competitors for the position.

Madlanga was adamant that a Chief Justice of sufficient vision and mettle would easily be able to implement his or her plans for the judiciary in 3½ years, proposing with perhaps an excess of optimism that he would take “a matter of days” to get going if appointed. JSC commissioners seemed less convinced, with Malema suggesting that it would require months simply to master the necessary administrative systems and budget.

But, while the JSC was uncharacteristically well-behaved in this inaugural interview, the impact of external politics – for the influence of which the JSC has been heavily criticised in the past – still made itself felt.

A recurring question from commissioners was a thinly-veiled reference to the recent controversy surrounding Tourism Minister Lindiwe Sisulu: Madlanga was asked in a number of different ways how a Chief Justice should handle attacks on the judiciary, and what he thought of – in the words of commissioner Mvuzo Notyesi – “this issue of judges calling press conferences to respond to political rhetoric”.

It was a thorny question for Madlanga, who was essentially being invited to criticise the conduct of his rival, Zondo, in holding a media briefing to defend the judiciary against Sisulu’s attack. Madlanga was much too diplomatic to take the bait, responding that his favoured method of handling such a situation would be for judicial leadership to meet privately with political leadership, but that he also acknowledged that a more public airing of the issue might well be “sometimes necessary”.

One imagines that Zondo was too busy with the release of the second installment of the State Capture report on Tuesday to pay close attention to the JSC proceedings, but if he caught the footage of commissioners grilling Madlanga on the correct way to handle the Sisulu issue, he might have felt a sense of foreboding at his own upcoming appearance before the panel.

The proceedings of the State Capture inquiry chaired by Zondo also received an implicit reference on the first day of interviews, when Malema wrapped up proceedings by asking Madlanga: “Do you think commissions of inquiry add value in South Africa, or it’s just a waste of money, or are they used by politicians to buy themselves time so that they can lull society and not be held accountable?”

Madlanga asked to be excused from answering the question on the grounds that it would amount to a sitting judge wading into political debate, as expressly forbidden by the Judicial Code of Conduct.

Malema wasn’t willing to let go of this clearly laden topic so quickly, however, and asked the judge whether he could cite an instance of a commission of inquiry that has been “successful” in the sense of “serious follow-up and action taken”.

Madlanga – who served as an evidence leader for the Marikana Inquiry – admitted that he could not think of even one such example.

It was a sobering note on which to end Madlanga’s interview – and one which again foreshadowed the questioning Judge Zondo himself is likely to face far more strenuously when he appears before the JSC on Friday. DM

JSC interviews for the Chief Justice position continue on Wednesday with Supreme Court of Appeal Judge President Mandisa Maya.