South Africa cannot afford another Chief Justice mistake …

Jacob Zuma, helped and encouraged by his legal team, has one goal in mind: to ensure that his criminal trial never leaves interlocutory blocks. The new target is Billy Downer SC, who is widely regarded by knowledgeable sources in the legal profession as the top prosecutor in the country.

Regardless of the Zuma team; Downer is a fair game in the war against the law. And if the attacks on Downer fail, the team will move across the National Prosecuting Authority and, if necessary, the judiciary.

This is a case without trial at all costs, even if it involves the destruction of all key legal institutions. Even on medical parole, Zuma appears perfectly capable of launching his own verbal rockets at the citadel of the judicial system, the Constitutional Court.

In their wake comes another from Camp Zuma – Arthur Fraser. He launched a frantic attack on the appointment of Associate Chief Justice Raymond Zondo as Chief Justice. Much of it is an undisguised trailer of the main feature – a review of the findings of the Zondo Commission. In tow, we find Dr Zweli Mkhize seeking to prosecute the Special Investigative Unit following its devastating findings on the Digital Vibes scandal.

Even more Stalingrad tactics are on the cards.

Not far behind, with the same playbook in hand, comes the president of the Western Cape judge, John Hlophe. He is seeking to review the Judicial Services Commission (JSC) ruling that he should be removed from office. From news reports, it is clear that Zuma-type tactics will be used here to ensure that no decisions are made regarding his impeachment until he can safely disappear into retirement.

Each of these cases will highlight the performance of the justice system. All of this is taking place against a backdrop of declining public confidence in the judiciary. According to a recent Afrobarometer survey, only 43% of the surveyed sample have confidence in the judiciary.

The last decade has seen a worrying decline in judicial legitimacy. In this context, it is strange that apart from a column by Paul Hoffman SC in Daily Maverick and according to Stephen Grootes’ analysis, the retirement of Chief Justice Mogoeng Mogoeng as head of the judiciary has been greeted with varying degrees of hagiography. Truth be told, history will surely show that he was the worst chief justice since Pierre Rabie.

Yes, he delivered the Nkandla judgment, but the legal objection to the Ombudsman’s recommendations had been dropped by Zuma’s lawyer and, more than that, the court-ordered amount to be paid by Zuma was significantly reduced by compared to what appeared, admittedly a little vague, in the Québec Ombudsman’s report.

On the debit side: in 2017, Chief Justice Mogoeng drafted an excoriation of the majority judgment in the EFF case brought to challenge the process in the National Assembly for the impeachment of the president. In Public Protector v South African Reserve Bank, once again in the minority, he sided with the Québec Ombudsman that she should not have a personal order for costs imposed, despite the overriding logic of the majority regarding her blatant conduct.

In its most recent judgments, the same depressing quality of case law has been evident. In Prime Minister of Gauteng and Others v DA and Others, which involved a dispute involving state organs within the provincial and local government, the judgment took about 13 months to be rendered, and then with the court divided 5: 5. There was no majority judgment, but somehow, led by the chief justice, the court maintained that the appeal was successful.

If that delay was not enough, the Chief Justice rendered a majority judgment in the Mediclinic merger case. Aside from a few rousing sermonic passages on the importance of Annex 27 to the Constitution for a merger involving private health care (for which, well done), the judgment does not at all address the key question of whether, in fact, the legal criterion of the prevention of competition had been met. The least that can be required of a supreme court is careful engagement with the reasoning adopted in the judgment against which the appeal is brought. This request is futile in this case.

But it is not only the quality of the judgments that is in question. The Chief Justice failed to sit in a number of cases. For years he made eccentric acting appointments to the court. A few notable exceptions aside, there were many judges who should have acted on the tribunal and who would have broadened the pool from which new appointments could have been made. Given his JSC presidency, it’s no surprise that so few judges have nominated themselves.

Chief Justice Mogoeng leaves the Constitutional Court in dire straits. He has five vacancies out of a staff of 11. While not directly his fault, the Supreme Court of Appeal is also in a precarious position with equally questionable retirements and JSC appointments. .

Is it therefore surprising that the legitimacy of the judiciary is at such a low ebb? Not a week goes by without there being a controversy in the ranks of justice. To be fair, a lot of that can’t be attributed to the retired Chief Justice. But examples such as recent report on Judge Gayaat Salie-Hlophe who appeared in the Daily Maverick concerning his conduct in the Rohde trial only compounds the problem. Disturbing allegations are made. Needless to say, there are never any consequences or, at least, no investigation into such alleged behavior. Given the current JSC’s approach, it is rather a guarantee that the learned judge will be elevated to the Constitutional Court in the near future.

All of this provides a context for the debate on the appointment of the next Chief Justice. Thanks to Zuma, as an apartheid prosecutor, even for a short time, he was seen as more important than a prominent Deputy Chief Justice who had been Robben Island’s youngest political prisoner. President Cyril Ramaphosa owes it to the country to appoint a lawyer with a career that demonstrates an intellectual and organizational commitment to the transformation of our legal system. It owes it to the nation to appoint a courageous jurist, upright and capable of leading the institution both by being a first among his peers and by ensuring that the public regains confidence in the judiciary.

As a key player in shaping the Constitution, Ramaphosa owes it to his own heritage to set aside all considerations other than the following: the criteria for who is the best person. The country cannot afford another mistake. DM

About Mitchel McMillan

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