Appointing next chief justice key in restoring trust

What will be the best participatory process to deliver the most competent candidate?

IN PRETORIA last week, I found everyone waiting for an announcement from Cape Town.

In Cape Town, I found everyone electrified by an unexpectedly wideopen process to appoint the next chief justice. One thing, however, is clear: the next appointee will emerge out of a contest, and almost certainly of five, rather than two, contenders.

That points to the deepest question underlying this pivotal South African judicial event: can a participatory appointment process deliver a competent candidate commanding the respect of the public?

More precisely: can the Ramaphosa model of change through democratic consensus, of which his call for the public to nominate candidates is a prime example, produce the results our judiciary badly needs if it is to hold its own in the next 12 years and beyond? It is a model, the Presidency said, to “promote transparency and encourage public participation”.

The Constitutional Court, like a giant slot machine, is a consensus-driven court that strives to bring legal certainty in our constitutional democracy.

The more pineapples, or oranges, line up on the screen, the better the results. The current process of filling vacancies in the apex court will account for about five fruits in a row; Justices Mogoeng Mogoeng, Sisi Khampepe

and Chris Jafta all retire next month, while Justice Edwin Cameron retired in August 2019 and Justice Johan Froneman in May last year.

Should the president appoint the chief justice from justices on the apex court bench, this will spin another fruit, with the rest being generated by acting opportunities for justices from the Supreme Court of Appeal. It is likely that for some time at least four acting justices will preside over Constitutional Court cases while the Judicial Services Commission conducts the necessary checks on the suitability of permanent appointees.

South Africa’s Constitution describes the job of chief justice as being “the head of the judiciary”, and an individual that “exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts”.

Whatever most of the interested parties say about the Ramaphosa model, in practice the alignment of the appointment process with the competencies of prospective candidates remains the key to any major initiative to bring stability to our judiciary and the country in general.

My friends in Pretoria and Cape Town constantly talk grudgingly about the diluted role in the process of both Parliament and the JSC, following Ramaphosa’s announcement of a panel – made up of “eminent persons” – responsible for short-listing between three and five candidates by October 29. To make the process work well within the approximately 40-day period within which the vacancy must be filled, requires a coalition of coalitions made up of coalitions.

Critics constantly talk about a “legitimacy deficit” inside Union Buildings, but in reality almost the opposite is true as there is a genuine effort to promote transparency in the process. Admittedly, the execution of the Ramaphosa model is likely to be complicated and slow-moving because it requires consultation with political parties represented in Parliament, professional bodies of legal practitioners, non-governmental organisations working in the field of human rights, and the ANC top brass in Luthuli House. The process is a permanent negotiation. The wonder is not that it has finally started and moves slowly but that it moves at all.

A crisis can help. With justices Mogoeng, Khampepe and Jafta all on long leave, we have concerns from the civil society organisations, scholars and legal practitioners on edge about the the possibility of a haphazard process of handing over to Justice Mogoeng’s successor.

Justice Mogoeng has been on long leave since May, while justices Khampepe and Jafta have been on long leave since late July and early last month, respectively, leaving the adjudication of cases in this period to acting justices. In the circumstances, the Ramaphosa model must deliver to allay concerns.

An optimist will say that the issue of the aborted interviews the JSC ran in April for two jobs in the apex court, which will be rectified next month, has made South Africans wake up to the costly disruptions immobilising our courts. Yet it’s an odd polity that relies on successive crises for its survival. No wonder the mounting pressure on Ramaphosa to disprove the perceived “legitimacy deficit” in his model.

His model relies on all JSC constituents to remain committed to an acceptable outcome, rather than switching over to being its opponents, possibly triggering protracted delays in which populists could also thrive by further tarnishing the image of the judiciary. It also relies on an acceptable outcome of the judicial appointments to ensure proper administration of justice. Then and only then will we have the necessary alignment of a dynamic judiciary functioning with the efficiency we are accustomed to.

All this is possible to be achieved during this Ramaphosa administration, but very far from certain. The office term of the new chief justice will be the first, but only the first, test of whether the Ramaphosa model of change through democratic consensus can deliver the goods.

If it does not, then South Africans will look for alternative models of accessing justice. A recent Afrobarometer poll found most adults do not trust the judiciary, which makes the need for certainty and stability paramount. South Africa’s challenge is to prove the opposite by restoring public trust – not just in the judiciary but in all arms of government and at all levels.