Mogoeng Mogoeng officially vacated the chief justice hot seat, leaving behind him a legacy of high-profile rulings interspersed with criticism and controversy.
Initially, then president Jacob Zuma’s choice of Mogoeng — overlooking the popularity of deputy chief justice Dikgang Moseneke — was alarming in many circles and raised questions about whether he would be a lapdog for the former president; someone who would be a crucial cog in what would later become known as the state capture machinery. Those concerns were quickly batted away as, among several other high profile judgments, he ruled against Zuma, the very man who appointed him, in the Nkandla case. Zuma had, the unanimous ruling read by Mogoeng said, failed in his duty to uphold and protect the constitution.
But now, as he leaves — and prepares for a series of spiritual talks in the weeks to come — the country’s focus will be on the person who President Cyril Ramaphosa chooses to replace him with. And, again, Zuma will be part of the conversation.
The Constitutional Court, in particular, has come under fire from the former president and his backers, and many of those in the ruling party and in the red section of the opposition have made public statements questioning the independence of the country’s courts and judges. As unsubstantiated as these claims might be, they are now playing out in the court of public opinion. Ramaphosa will undoubtedly have this at the back of his mind as he makes his choice. The pressure and scrutiny on his decision will be immense.
Last week, the first part of the process in finding the replacement was completed. A “nominations panel” sifted through 148 public submissions, made up of 25 names, and eliminated those nominations that were not accompanied with the correct supporting documentation.
In the end, eight candidates, nominated by the public, were named: judge president John Hlophe, justice Mbuyiseli Madlanga, justice Mandisa Maya, Dr Wallace Amos Mgoqi, adv Busisiwe Mkhwebane, judge president Dunstan Mlambo, adv Alan Nelson, SC, and deputy chief justice Raymond Zondo.
It certainly seems unlikely that the controversy surrounding Mogoeng’s appointment will be repeated this time around, provided Ramaphosa excludes the candidates who simply don’t make the grade.
The public has until Friday to lodge its objections to any of the individuals, before the panel finalises a shortlist of between three and five, from which Ramaphosa must choose the highest judge in the land.
Two names on that list — Mkhwebane and Hlophe — should not even make it to Ramaphosa’s desk. It is inconceivable that two legal practitioners who are facing potential impeachment could rise to the position of chief justice. And if one of their names do make it to that shortlist of five, it should be struck off the list. Anything else would be shocking.
The shortlisting panel would also do well to steer clear of recommending anyone who hasn’t been a judge. The chief justice is the head of the judiciary, and it is vital that the seat is occupied by someone with appropriate and sufficient juristic experience. An appointment out of left field doesn’t seem like a good idea — especially not with the current scrutiny on and justified-or-not criticism of — the judiciary.
Fortunately for Ramaphosa, the remaining candidates are all strong and respected contenders, each with their own strengths and weaknesses. There’s the current deputy chief justice and the current head of the Supreme Court of Appeal. There’s also the president of the Gauteng high court, and a current ConCourt justice.
While there might have been some justification of Ramaphosa’s attempt to make ordinary South Africans feel part of the process of selecting the new chief justice, it created an unnecessary step in the process and slowed down the appointment. Playing to the crowd on a decision this important didn’t make sense and the selection panel will have to wade through public comment before providing a shortlist that, realistically speaking, is likely to have been similar to the one it will ultimately hand over on October 29.
It certainly seems unlikely that the controversy surrounding Mogoeng’s appointment will be repeated this time around, provided Ramaphosa excludes the candidates who simply don’t make the grade. And we can only hope he does.
