Ramaphosa’s appointment of Zondo as Chief Justice shows strategic smarts at last

Judge Raymond Zondo, the current deputy Chief Justice, will be South Africa’s next Chief Justice from 1 April. In a statement announcing the appointment on Thursday, President Cyril Ramaphosa said he had “every confidence that Justice Zondo will acquit himself with distinction in this role”.

To fill the vacancy left by Zondo as Deputy Chief Justice, Ramaphosa said he intends to nominate Judge Mandisa Maya in that position. The Constitution requires the President to consult the Judicial Service Commission (JSC) and the leaders of political parties represented in Parliament before making both appointments, but the ultimate choice rests with the President.

Read in Daily Maverick: Please watch your back, Judge Maya – the dogs that didn’t bark may well come back to bite you, by Pierre de Vos

Before the JSC interviewed the four Chief Justice candidates in February, the choice of Zondo to follow Mogoeng Mogoeng as head of the South African judiciary might have seemed like an uncontroversial choice. Zondo has been acting in the position for the last several months while Ramaphosa’s decision was awaited; he is a widely trusted household name as a result of his work chairing the State Capture Commission; and he takes the post seasoned by 25 years of experience on the Bench.

But the way the JSC interviews unfolded, and their aftermath, makes Ramaphosa’s decision to appoint Zondo as Chief Justice significant in a number of respects.

[embed]https://www.dailymaverick.co.za/article/2022-03-10-zumas-long-game-is-running-short-as-he-petitions-supreme-court-of-appeal-to-hear-special-plea/[/embed]

The first is that Ramaphosa has sent a clear message to the JSC that ultimate power for these appointments resides with the President and that he is under no obligation to endorse the JSC’s conclusions. After the February Chief Justice interviews, the JSC released a statement indicating that it had recommended Maya as its preferred candidate.

In the same statement, the body announced that after voting it ranked the candidates in the following order: first, Judge Maya; second, Judge Dunstan Mlambo; third, Judge Mbuyiseli Madlanga; and fourth, Judge Zondo.

Ramaphosa subsequently told journalists that he was surprised that the JSC had gone so far as to recommend its preferred candidate, as he interpreted the JSC’s remit merely to be to confirm or refute that the shortlisted candidates were “suitable” for appointment. Legal bodies, including the Council for the Advancement of the South African Constitution and the Helen Suzman Foundation, shared Ramaphosa’s view, stating that the JSC had unconstitutionally sought to usurp the appointment powers of the President.

Read in Daily Maverick: Chief Justice interviews demonstrate clearly the urgent need for reform of the JSC

But Ramaphosa was nonetheless viewed as being backed against a wall by the JSC’s actions. Commissioner Julius Malema appeared to view the appointment of Maya as Chief Justice as now being a fait accompli, tweeting: “It’s a Girl”.  

The situation was complicated by the fact that if Ramaphosa chose to ignore the JSC’s recommendation – as was his legal right – he could be accused of failing to seize the opportunity to appoint the country’s first female Chief Justice, a fact to which his political opponents would doubtless return when the President spoke of his dedication to gender equality in future.

JSC commissioners led by Malema had also attempted to badger the three other (male) candidates into acknowledging the imperative of appointing a female Chief Justice, including demanding that Judge Mlambo endorse the sentiment that South Africa should “hang our heads in shame” that a woman had not yet won the judicial top spot. Mlambo declined to comply.

This attempt by Malema and his allies to frame the Chief Justice appointment as a crucial gender referendum was slightly undermined by the fact that the EFF’s original top pick for Chief Justice had been controversial Western Cape Judge President John Hlophe, who is very much male. 

When Hlophe failed to make Ramaphosa’s shortlist for interviews, Malema and Co switched tack, threw their support behind Maya and began disseminating the narrative that for Ramaphosa to fail to appoint a woman as the next Chief Justice would effectively be an act of misogyny.

Beyond the fact of her gender, exactly why Malema, fellow JSC commissioner (and former EFF chairperson) Dali Mpofu and a number of other JSC members seemed so intent on appointing Maya was never entirely clear, though one reason advanced was that she was a “politically neutral” candidate in contrast to Zondo and Mlambo, who have been accused – without any firm evidence – of demonstrating bias towards Ramaphosa’s administration in their judgments.

(Although this was never explicitly spelled out by Malema and Co, Maya’s acknowledged closeness to Judge Hlophe – whom she referred to in her interview as akin to a “brother”, and further affirmed she would recuse herself from any matters involving him – would doubtless have pleased the EFF-aligned JSC members, given their established Hlophe affinity.)

Regardless of their reasons, it was rapidly made evident during the JSC interviews that Maya was their preferred candidate. During four days of interviews dominated by Malema, Mpofu and their cabal, Maya was effectively treated with kid gloves, while Judge Mlambo – in the view of many, the strongest candidate – was ambushed with anonymous sexual harassment rumours, and Judge Zondo was repeatedly accused of inappropriate intimacy with both Ramaphosa and former President Jacob Zuma.

It appeared that the JSC had Ramaphosa in a bind. Either he could endorse the JSC’s recommendation and appoint “neutral” Judge Maya, enjoying the applause which would follow for picking South Africa’s first-ever female Chief Justice; or he could reject the JSC’s advice and opt instead either for a male judge with unsubstantiated sexual harassment rumours hanging over his head (Mlambo), or a judge despised by both the EFF and the RET faction of Ramaphosa’s own party for his work on State Capture (Zondo).

(The remaining candidate, Judge Mbuyiseli Madlanga, was – despite the JSC ranking him higher than Zondo – not widely viewed as a plausible choice for Chief Justice due to his lack of experience in judicial leadership and administration.)

There is little doubt that Maya would have been the politically easiest choice. It was rationally defensible beyond the gender issue, since despite not having the strongest interview Maya is unquestionably an accomplished and respected jurist. It could also have won Ramaphosa plaudits within the fractured ANC for selecting a compromise candidate by whom the RET faction would not be unduly threatened.

Ramaphosa is best known for advocating negotiation and compromise in his political life, and his presidency thus far has entrenched the perception that he is generally conflict-averse, to the country’s detriment. This is one of the aspects that makes his appointment of Zondo quite remarkable: it amounts to Ramaphosa flexing his presidential muscles in an almost unprecedented way.     

The EFF has already made its displeasure known. In a statement on Thursday evening, the party declared it “shameful that [Ramaphosa] has chosen to side-line a capable, uncompromising black woman” (Maya) in favour of “a member of the judiciary who is prone to descending into the political arena when he is expected to exercise restraint” (Zondo).

But, ultimately, the frothing of a 10% party means very little. Ramaphosa’s decision is welcome from that perspective too. It is a reminder, in a context where both the media and the public are prone to overstate the EFF’s power and influence due to the party’s intimidation tactics, that the President can overrule Malema’s desires with the stroke of a pen.

Ramaphosa’s decision also effectively defangs the increasingly dysfunctional JSC, for whom this appointment amounts to a more or less explicit smackdown. Indeed, if Judge Maya seeks to direct blame towards any quarter for losing out on the Chief Justice post, her anger should be targeted towards the JSC, which essentially scuppered her chances by running such blatantly problematic interviews.

Although it is Zuma and not Ramaphosa who is known as a chess-playing president, there is another reason why the appointment reveals that Ramaphosa is capable of chess moves with the best of them.

As highlighted by the judicial watchdog Judges Matter, the appointment of Maya as Deputy Chief Justice requires Maya to relinquish her current post as Judge President of the Supreme Court of Appeal and move to the Constitutional Court (which is in dire need of women judges).

This means that Ramaphosa wins an extra appointment as a bonus, as it is now his prerogative – after consultation with the JSC and political party leaders – to also appoint the new head of the Supreme Court of Appeal.

The move can be seen as part of an apparent new determination on Ramaphosa’s part to assert control over the security cluster. It follows the recent axing of Zuma-aligned police chief Khehla Sitole and the possible return of various police and crime intelligence figures sidelined during the Zuma years.

However controversial Chief Justice Zondo’s appointment will be in certain quarters, Zondo’s tenure can also only last two years before his mandated retirement. This raises the possibility that Ramaphosa – assuming he is still President – ultimately intends to appoint Judge Mlambo as Chief Justice, but is allowing for an appropriate interval to decisively settle the sexual harassment rumours around Mlambo.

Zondo faces a tough gig. He will have to contend with inevitable accusations that his appointment is primarily a “thank you” for chairing the State Capture inquiry, and – more seriously – that his failure to implicate either Ramaphosa or his son Andile in the State Capture reports so far was a quid pro quo for the Chief Justice post.

But few fair-minded individuals would surely argue with the assessment of Judges Matter on the appointment: that “Judge Zondo is a known quantity, and is unquestionably a safe pair of hands”. DM