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President Ramaphosa urgently needs to name South Africa’s next Deputy Chief Justice

8 Dec 2024

The Constitution gives the President wide discretion to appoint judges for the top four positions in our judiciary. The President initiates the process by nominating a candidate and referring them to the Judicial Service Commission (and leaders of political parties in Parliament, in the case of the Chief Justice and Deputy Chief Justice) for comment regarding their suitability. For all other judges, it is the Judicial Service Commission that initiates the process. Therefore, the President is the central roleplayer in appointing judicial leaders, including the Deputy Chief Justice.

It is now nearly 100 days since Chief Justice Mandisa Maya took office, leaving the Deputy Chief Justice post vacant. It is also now nearly 130 days since President Cyril Ramaphosa announced Maya’s appointment, yet he has said nothing about who the next Deputy Chief Justice will be. Faced with challenges of a record shortage of judges, unprecedented caseloads, and budget cuts, the judiciary needs strong leadership at the top. The President’s silence is causing a crisis.

The President’s constitutional powers

Section 174(3) of the Constitution gives the President wide discretion to appoint judges for the top four positions in our judiciary. These are: the Chief Justice and Deputy Chief Justice, and the President and Deputy President of the Supreme Court of Appeal. The President initiates the process by nominating a candidate and referring them to the Judicial Service Commission (and leaders of political parties in Parliament, in the case of the Chief Justice and Deputy Chief Justice) for comment regarding their suitability. For all other judges, it is the Judicial Service Commission that initiates the process. Therefore, the President is the central role-player in appointing judicial leaders, including the Deputy Chief Justice.

Commendably, in 2022, Ramaphosa announced his nomination of Maya for Deputy Chief Justice immediately when he announced his appointment of Raymond Zondo as chief justice. It is not clear why he did not do so this time, nor why we are now in the fifth month of waiting for the President’s nominee for Deputy Chief Justice. Section 237 of the Constitution requires the President to perform all his constitutional obligations diligently and without delay.

The vital role of the Deputy Chief Justice

It’s not as if the Deputy Chief Justice is some low-level paper pusher. The Deputy Chief Justice plays a crucial role in supporting the Chief Justice in executing her enormous responsibilities as head of the judiciary.

The Deputy Chief Justice’s primary role is that of a justice of the Constitutional Court. In addition to carrying their full load of hearings and judgments, the Deputy Chief Justice also presides over hearings in the Chief Justice’s absence. The Deputy Chief Justice also chairs several committees that are essential to the apex court’s functioning.

In addition, the Deputy Chief Justice chairs the Judicial Conduct Committee, the body responsible for adjudicating judicial misconduct complaints against judges and upholding judicial ethics nationwide. The Judicial Conduct Committee is facing record volumes of complaints, the vast majority of which are frivolous yet still need adjudicating. Meanwhile, its capacity is thinly spread, chiefly because of being primarily constituted by full-time, working (instead of retired) judges. The Deputy Chief Justice is therefore required to devote enormous time towards the smooth running of the Judicial Conduct Committee.

There are several other significant roles the Deputy Chief Justice holds: they chair the Judicial Service Commission in the Chief Justice’s stead; they sit on the Heads of Court Forum, the judiciary’s central policy and governance structure; they chair the executive committee of the council of the SA Judicial Education Institute; and serve on the judiciary’s National Efficiency Enhancement Committee, among other important roles.

It is particularly urgent to have a permanent Deputy Chief Justice at this time of great transition in the judiciary. Chief Justice Maya is taking the initial steps to implement her decade-long vision for the judiciary. The new Deputy Chief Justice must be able to hit the ground running and partner with Maya and her team, while also bringing crucial stakeholders like the legal profession along.

Successive Chief Justices have had a cold to lukewarm relationship with magistrates in the lower courts. Maya’s mission seems to be rekindling those relationships, towards a unified judiciary — a key resolution of the Judges Conference last year. The new Deputy Chief Justice would need to strengthen those relationships and help Maya implement those resolutions.

Despite there being a Deputy Chief Justice vacancy for nearly 100 days now, not all has been lost. Justice Mbuyiseli Madlanga, currently the most senior justice at the apex court, has held the fort as acting Deputy Chief Justice. He has presided over several hearings, while standing in for Maya during engagements with foreign diplomats, among other activities.

Can Ramaphosa select him for the permanent job? Unfortunately, not. Despite being still far from the mandatory retirement age of 70, Madlanga’s non-renewable 12-year term on the Constitutional Court ends in July 2025. Similarly, Justice Nonkosi Mhlantla, the most senior justice after Madlanga, is out of the running for Deputy Chief Justice as she would have less than two years remaining before mandatory retirement.

So who might the President consider for Deputy Chief Justice?

Potential candidates for Deputy Chief Justice

Judge President Dunstan Mlambo

Gauteng Division of the High Court Judge President Dunstan Mlambo is an obvious frontrunner. In 2022 he was interviewed by the Judicial Service Commission alongside Maya and Madlanga and found suitable for appointment as Chief Justice. A judge since 1997, Mlambo has served in the high court and Labour Court; been a judge of appeal in the Supreme Court of Appeal, and Judge President of the Labour Court.

As Judge President of the Gauteng Division of the High Court, he leads the largest and busiest court system in South Africa, which carries 52% of all civil cases in the country. Recognised as a tech whizz, Mlambo oversees the national roll-out of the court online system, which has cut down paper and missing case files. At the same time, Mlambo has filed misconduct complaints against two of his judges for poor performance, signalling his commitment to high standards. He enjoys cordial relations with the legal community, from local community advice offices to the advocates’ societies, attorneys’ associations, and the magistracy. Formerly a long-time board chairman of Legal Aid SA, he currently chairs the board of the Community Advice Offices Association of SA.

Mlambo has penned several high-profile judgments on refugee law, administrative law, and constitutional law, including several on the powers of the Public Protector, which have drawn the ire of politicians who accuse Mlambo of influencing the country’s politics.

In 2022 Mlambo served as an acting justice of the Constitutional Court, to great controversy. Then EFF leader Floyd Shivambu filed a complaint with the Public Protector alleging that Justice Minister Ronald Lamola facilitated Mlambo’s appointment to unfairly advantage Mlambo in the 2022 interviews for Chief Justice. The Public Protector dismissed the complaint as unsubstantiated.

If appointed as Deputy Chief Justice, 64-year-old Mlambo would serve until 2029.

Justice Leona Theron

Similarly, another would-be Deputy Chief Justice, Constitutional Court Justice Leona Theron, would serve until 2029. Appointed to the KwaZulu-Natal High Court in 1999 at the age of 33, Theron was one of the youngest judges at the time. She served 11 years as a judge of the high court before her elevation to the Supreme Court of Appeal in 2010. She worked closely with Maya at the Supreme Court of Appeal and in the SA Chapter of the International Association of Women Judges. She was elevated to the apex court in 2017.

Theron has written several important judgments on, among others, women’s rights, constitutional law, and contract law — including the Beadica judgment, which settled the vexing question of the role of fairness in invalidating binding contracts. Famously, she was one of two judges to write dissenting judgments in the two cases that led to former president Jacob Zuma being found liable and subsequently jailed for contempt of court. Theron served as a member of the Rules Board for the Courts of Law, and on the council of the SA Judicial Education Institution, the Ombudsman for Long Term Insurance, and on the Commonwealth Magistrates and Judges Association.

While her years on the Constitutional Court and her strong networks in the legal community at home and abroad give Theron an advantage, her relative lack of judicial leadership experience weakens her suitability for Deputy Chief Justice. A pianist and violinist since childhood, 58-year-old Theron currently chairs the board of the Mzansi National Philharmonic Orchestra.

Justice Stevan Majiedt

Another candidate for Deputy Chief Justice would be Justice Stevan Majiedt. Appointed to the Constitutional Court in 2019, he was previously a judge of appeal in the Supreme Court of Appeal from 2010-2019, and a judge of the Northern Cape High Court from 2000 to 2010. Prior to judicial office, Majiedt had wide experience as an advocate in private practice and as chief legal adviser to the Northern Cape provincial government. As a Constitutional Court justice Majiedt has written several important judgments on court procedure, mining law, defamation law, and constitutional law. This includes the Qwelane v SA Human Rights Commission judgment on the limits of free speech and the prohibition of hate speech. Majiedt’s lack of judicial experience in running a court might weaken his suitability for the Deputy Chief Justice role. Majiedt was previously the chairperson of the Rules Board for the Courts of Law. A son of Kimberley, he has dedicated years of service to the city. This includes a stint as chairperson of William Humphreys Arts Gallery and, since 2016, the chancellor of Sol Plaatje University. If appointed as Deputy Chief Justice, 64-year-old Majiedt would serve until 2030.

Other candidates

In the past, Deputy Chief Justices have often been drawn from sitting Constitutional Court justices (e.g. Langa, Moseneke and Zondo). Although Maya’s 2022 appointment as Deputy Chief Justice broke with that tradition, and Mlambo’s appointment similarly would, there is nothing stopping a return to that practice. Therefore, in addition to Theron and Majiedt, Justices Zukisa Tshiqi and Rammaka Mathopo may also be considered potential Deputy Chief Justice candidates.

Both have nearly 20 years’ experience as judges and have served in various bodies in the judiciary. Tshiqi was a member of the SA Law Reform Commission, while Mathopo is an expert judicial trainer with the SA Judicial Education Institute.

Similarly, Justices Owen Rogers and Jody Kollapen have long careers in the law, with impactful judgments on a wide range of fields including tax law, commercial law, constitutional law and human rights. Additionally, Kollapen has run both the SA Human Rights Commission and the SA Law Reform Commission as chairperson. However, they’re both within three years of mandatory retirement.

President Ramaphosa is clearly spoilt for choice for the Deputy Chief Justice position. The ball is firmly in his court. The Judicial Service Commission is scheduled to meet for interviews in March, just over 100 days away. Considering the multiple crises facing our judiciary, the impact this has on people and the economy, and the leadership necessary to steer the ship to safe shores, President Ramaphosa needs to act urgently to name a vice-captain for Chief Justice Maya. DM

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