From left to right: Chief Justice Mogoeng Mogoeng. (Photo: Alet Pretorius / Gallo Images) | Judge Navi Pillay. (Photo: Supplied) | Former public protector Thuli Madonsela. (Photo: Gallo Images / Frennie Shivambu) | President Cyril Ramaphosa. (Photo: Gallo Images / Sharon Seretlo)
President Cyril Ramaphosa has kicked off the process of selecting the country’s next Chief Justice with an unprecedented public call for nominations. Judges Matter explains the process in five steps.
Alison Tilley is a lawyer and coordinator of the Judges Matter campaign. Judges Matter is a civil society project that monitors the appointment of judges, their discipline in cases of misconduct and the governance system of the justice system in South Africa.
On September 16, 2021, President Cyril Ramaphosa kicked off the selection process for South Africa’s next Chief Justice with an unprecedented statement Call for nominations public.
Although it only comes 20 days before the retirement of outgoing Chief Justice Mogoeng Mogoeng, this historic break with past practices is a boost for transparency and participatory democracy. We think he’s more likely to deliver a good candidate for Chief Justice.
In this article, we explain how the five-step process is likely to play out.
Timetable for the appointment of the Chief Justice
September 16 – Public applications are open
October 1st – Closure of applications
October 4 – All applications received are published on the website of the Presidency (long list)
October 15 – Objections on the candidates due
29 october – Preselection announced by Pillay’s selection jury
November (to be confirmed) – JSC interviews shortlisted candidates
November (to be confirmed) – The president consults the party leaders in Parliament
December (to be confirmed) – The president appoints the chief judge
Step 1: The public nominates (deadline: October 1, 2021)
In the first step of the nomination process, ordinary South Africans were given the opportunity to submit written nominations by email to the presidency. The appointment should include the reasons why the candidate qualifies to be a Chief Justice, including experience as a lawyer or judge, including any leadership experience.
The appointment must be accompanied by the approval of the candidate by a professional legal body (these would likely be organizations such as associations of lawyers, the Legal Practice Council, the Magistrates Commission or associations of judges) or a non-governmental organization involved in human rights or other legal field. Finally, the proposed candidate must accept the appointment in writing.
All this should be sent by email to [email protected] Where [email protected] through Friday 1 October 2021, which is not a lot of time. Once all the candidatures have been received, the Presidency will publish the names and supporting documents of all the candidates on On Monday, October 4, 2021.
The public will then have the opportunity to raise objections to any of the candidates, which must be in writing and fully substantiated. These objections should also be sent by email to the same addresses by Friday, October 15, 2021.
Step 2: The Pillay Panel selects (deadline: October 29, 2021)
Along with the call for nominations for chief judges from the public, the presidency also announced the appointment of a six-member selection committee. Directed by Judge Navi Pillay, former United Nations High Commissioner for Human Rights and former judge of the International Criminal Court, the jury will be responsible for establishing a shortlist of three to five names which will be forwarded to the Judicial Services Commission (JSC) for interviews.
The Pillay Panel is notable for the diversity of areas in which Commissioners come from, including legal and non-legal backgrounds. He has people like the former Québec Ombudsman Thuli Madonsela, American constitutional law scholar Ziyad Motala and civil society pillar and LGBTQI + activist Mmapaseka Steve Letsike.
We believe ANC politician Jeff Radebe is unfit for the panel, given his poor track record as Minister of Justice. We also believe that it was not necessary to include the current Minister of Justice Ronald Lamola in the panel given that as JSC Commissioner he will have ample opportunity to participate at the interview stage. .
The immediate task of the Pillay Panel, which must be accomplished after its first meeting, is to issue written terms of reference which must include its rules of procedure, a set of evaluation criteria and rules for decision making. This will follow the precedent set with the 2018 appointment of SARS Commissioner Edward Kieswetter where, shortly after his appointment, the Selection Board published its mandate, evaluation criteria and rules of procedure.
We believe that the assessment criteria will be critical to the integrity of this process and the Pillay Panel should immediately focus on developing a criterion that will spell out the essential qualities that the shortlisted candidates should possess (including exceptional experience in as a lawyer and judge, one of high quality judgments and experience in leading a court or other complex organization).
Failure to do so will compromise the enormous opportunity offered by the panel process to improve the transparency and credibility of the Chief Justice appointment process.
Step 3: JSC interviews (probable date: November 2021)
Perhaps the most crucial (and probably the most closely watched) step in the chief justice appointment process will be the public interviews before the Judicial Commission. Each candidate will appear before the panel of 23 commissioners to be questioned about their qualifications, background as a lawyer, judge and leader, and vision for South African justice.
It’s no secret that JSC talks are vigorous in nature, however, they must be within the confines of fairness and equality. As a result of the deliberations, the JSC is to advise the President on the suitability of the candidates (nothing prevents the JSC from ranking their preferred candidates for the post of Chief Judge).
In the past, JSC talks have turned into a spectacle that does more to stimulate the egos of politicians and lawyers than a serious attempt to select the best candidates for high judicial office. The Chief Justice’s last interview in 2011 was also needlessly combative, with moments of high drama.
We don’t think this is necessary. Indeed, we hope that the JSC will do everything in its power to avoid this situation. An important way to focus on interviews is to develop a set of criteria and publish them widely. This was done in 1998 by Chief Justice Ismail Mohamed, when he published guidelines for selection of judges, then again by the JSC in 2010. All questions should be based on these criteria and the chair should actively enforce constraints on the scope of questions allowed, including overriding inappropriate questions.
Step 4: Opposition leaders in Parliament are consulted (likely deadline: November 2021)
The penultimate step in the chief justice selection process is the president writing to the leaders of all political parties in Parliament, asking for their views on the suitability of the candidates. Party leaders are free to comment on any or all of the candidates, including why they think one (or none) should be appointed as chief justice.
It is important to note that party leaders can also list each candidate according to their preference and highlight the candidate they would support for the office of chief judge.
Step 5: The president appoints (probable deadline: December 2021)
Although the president is required to consult with the JSC and political party leaders in parliament, the decision ultimately rests on his shoulders.
Following this extensive consultative process, the President will select one of the shortlisted candidates and appoint him as Chief Justice. The announcement will be followed by the Chief Justice taking the oath before the Deputy Chief Justice or the senior Chief Justice of the Constitutional Court.
Judges Matter will keep an eye on
Judges matter wrote a lot on the role and qualities of the post of chief judge. We will continue to closely monitor the process for appointing the next Chief Justice and provide regular feedback and analysis to make the process more understandable. All this information is available on our website: www.juggesmatter.co.za and our Facebook and Twitter pages: @WhyJudgesMatter. DM