New incumbent must ensure independence of judiciary

SECTION 174 (3) of the Constitution provides that the president, as head of the national executive, after consulting the Judicial Service Commission (JSC) and the leaders of parties represented in the National Assembly (NA), appoints the chief justice.

This means that the usual practice of the JSC interviewing judges and advising the president on recommendations, is dispensed with.

Only the president must consult with the JSC and political parties in the national assembly.

Legally, there is no prescribed form the consultation should take. There is also no time constraint within which the president must appoint a new chief justice.

Further, if the JSC or political parties disagree with the candidate, they have no mechanism of recourse to object. They may challenge the appointee if the candidate is not a fit or proper person.

Appointing the chief justice is the president’s discretion and prerogative. However, in September the president invited the public to nominate candidates for the position of chief justice.

This is a noble attempt to obtain public buy-in and creates transparency which will inevitably enhance the public’s view of the judiciary.

A panel was also established to review the nominations from the public and recommend a shortlist to the president. The panel consisted of among others, a judge of the International Court of Justice and UN High Commissioner for Human Rights, a Minister of Justice, advocate Thuli Madonsela and a professor of law from the Harvard University School of Law. Eight names were shortlisted last month.

The usual practice is that the president refers one name to the National Assembly and JSC. But in this instance, four names were proposed. This could be seen as an indication that the president will consider the views of the political parties and the JSC.

There have been calls for the president to have the JSC interview the candidates. Interestingly, the president established a panel to shortlist candidates nominated from the public. Perhaps the president did not want to risk the appointment process becoming controversial.

The JSC interviews of judges for the Constitutional Court last April led to an uproar from the public regarding the type of questions that were posed to candidates. This resulted in the JSC candidates list being challenged in court. Subsequently, the court ordered that the JSC rerun the interviews because the questions to candidates were inappropriate and descended into politicking.

Section 174 of the Constitution prescribes who the president can appoint to the bench.

The candidate must be an appropriately qualified woman or man who is a fit and proper person.

The candidate must also be a South African citizen who broadly reflects the racial and gender composition of South Africa.

The key term here is fit and proper and how it is interpreted in the context South Africa finds itself in at present, with high unemployment, increasing poverty, high crime, a strong media focus on corruption, a national lockdown, an economy in recession, and low voter turnout in local government elections.

The fit and proper candidate must be in tune with the challenges, and these must be reflected in the judgments and policy decisions he or she makes.

The head of the judiciary cannot be far removed and isolated from society and therefore cannot shy away from the public.

The candidate must be a public figure in a highly politicised environment. Many will not like him or her and therefore, must be resilient in the face of opposition, whether it is political or in the media.

The chief justice is head of the Constitutional Court but also the Office of the Chief Justice (OCJ). The OCJ was established in 2011 and is therefore a new office. Inevitably this adds a huge administrative component. Nevertheless, the candidate has an opportunity to make policies and rules that will bring access to justice.

His or her perspective must always bear in mind whether the poor, women and children have access to justice. It is one of the key mandates of the OCJ.

There is also the fact that there has never been a woman chief justice. The JSC and politicians must consider the question of whether having a woman chief justice is going to help change perceptions as well as an adversarial court system, and will help make matters easier for a victim of, for example, sexual assault.

Perhaps the expectation of a superhuman is too much to place on the shoulders of the chief justice. Still, the same is expected of the president, as the head of government and the Speaker, as leader of the National Assembly.

So too, do we expect the chief justice to be a person of integrity, and right standing, respected by his or her peers and courageous.

He or she must have strong moral convictions, yet be aware that as chief justice, he, or she serves a nation of diverse nationalities and religious beliefs.

Finally, the new chief justice must bring stability and maintain and ensure the independence of the Judiciary.