The 11th of October 2021 marked the last day in office for Mogoeng Mogoeng as the Chief Justice of the Republic of South Africa. In light of the above and the current Judicial Service Commission (“JSC”) appointments and interviews taking place, we unpack the appointment process of the Chief Justice and that of the other justices of the Constitutional Court.
The JSC provides the President with a list of candidates for the appointments to the Constitutional Court. This list must contain three names more than the number of vacancies e.g., if there is one vacancy, four names must be sent to the President, if there are two vacancies, five names must be sent to the President, and so forth.
Section 174(3) of the Constitution provides that the President, as head of the national executive (which means with the support of cabinet), after consulting with the JSC and leaders of the political parties represented in the National Assembly, “appoints the Chief Justice.” The President thus has far more discretion in choosing the Chief Justice than with other judges. Whilst the President is required to consult with other political leaders and the JSC in a meaningful manner, where the views expressed are seriously taken into account, the President is not bound to follow the input received from other political leaders, or even from the JSC itself.
The other judges of the Constitutional Court are appointed in a similar procedure as the one provided for for the appointment of the Chief Justice. The Constitution provides for a supplementary list to be provided to the president and he can select from the supplementary list, in the case of the appointment of other judges of the Constitutional Court.
In an effort to promote transparency and public participation in South Africa’s participatory democracy, President Cyril Ramaphosa called on South Africans on 16 September 2021, to nominate suitably qualified candidates for the position of Chief Justice, as the head of the judiciary. This submission process closed at midnight on 1 October 2021 and 148 submissions were received of which 25 submissions met the criteria as set out by President Ramaphosa.
The criteria President Ramaphosa stipulated is the following –
- A nomination letter, including the contact details of the nominator;
- The nominee’s acceptance of the nomination and their contact details;
- Letters of support for the nomination, including contact details of persons or entities that support the nomination, including at least one letter of support from a professional body of legal practitioners, non-governmental organisation working in the field of human rights, or other legal field; and
- Any additional documentation that the person nominating the candidate for Chief Justice deems relevant.
The Nominations Panel which is chaired by Judge Navanethem (Navi) Pillay assessed and scrutinised all submissions.
From the 25 suitable submissions, the 8 nominees for the position of chief justice are as set out below –
- 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
- Deputy Chief Justice Raymond Zondo
South Africans are now invited to submit in writing any objections they may have regarding the nominees to email@example.com and OSewpaul@justice.gov.za by 17:00 on Friday, 15 October 2021.
The panel will consider objections before submitting a shortlist of three to five nominees to the President by Friday, 29 October 2021.
Noreen van der Merwe