ANALYSIS | Mogoeng Mogoeng's vacant office: President Cyril Ramaphosa did the right thing

Eleven years ago, when the country was waiting for a Chief Justice to succeed Sandile Ngcobo, Professor Richard Calland had the great fortune of attending the Judicial Service Commission (JSC) interviews where Justice Mogoeng Mogoeng was interviewed for the position.

Mogoeng Mogoeng was not a perfect candidate. His background was coupled with some controversial and poor judgments exercised in his pre-Constitutional Court days, particularly when he failed to recuse himself as a judge from a case involving his own wife.

As he prepared to sit down for his interview, Advocate Tembeka Ngcukaitobi referred to it as South Africa’s Clarence Thomas moment. Clarence Thomas had been George HW Bush’s choice for a position on the US Supreme Court in 1991. His interview was equally challenging as he was faced with questions on allegations of sexual impropriety levelled against him by Anita Hill.

As Mogoeng took his seat as the only nominee of President Zuma, the question of how he would deal with the inevitable questions about his previous judgments relating to sexual violence matters was of keen interest.

However, Like Thomas 20 years before him, Mogoeng survived the inquisition and was duly appointed as South Africa’s Chief Justice. 

In their wisdom, the drafters of our South African Constitution wrote in a structure called the the Judicial Service Commission (JSC), a body that would oversee the appointment of judges and the ethical functioning of the judiciary. The president holds the authority and power in the end after various consultations with the JSC, as well as political parties, to appoint a chief justice.

In 2021, President Cyril Ramaphosa took the unusual step of presenting four candidates for “vetting” by the JSC as he sought to make up his mind about who the next Chief Justice should be. The interviews hit rock bottom. What was supposed to be the culmination of a historic process in which the public was for the first time involved in the selection of the nation's chief justice turned into what some described as "Sh#tShow".

Over the course of the interviews, the judges were interrogated on various issues that were supposed to assess their suitability for office as Chief Justice. Various publications, commentators and legal scholars have written extensively about these controversial interviews. Following deliberations, the Judicial Service Commission (JSC) recommended that President Ramaphosa appoint Judge Mandisa Maya as the next chief justice.

Many political parties represented in parliament welcomed the recommendation with many people around the country celebrating the country’s opportunity to appoint the first female head of the judiciary. Just like when Professor Puleng Lenka-Bula came into the office of Vice-Chancellor at the University of South Africa, the atmosphere was quite the same #WomenOnTop. The giddy possibility of a woman at the helm of our judiciary simply took over.

Ramaphosa's twist of things reflects perhaps what Mondli Makhanya refers to as the desecration of the JSC. According to Makhanya; 

The JSC was true to its mission... But, alas, like many things in the land, this body has degenerated. There is nothing wrong with the powers it enjoys, it is the abuse of those powers that must be fought for us to reclaim the dignity and purpose of the institution.

In a twist of things, President Ramaphosa said that the Judicial Service Commission (JSC) went beyond its mandate by recommending that he appoint Judge Mandisa Maya as the next chief justice. He said this stressing that the choice remained his prerogative.

Legal bodies, including the Council for the Advancement of the South African Constitution and the Helen Suzman Foundation, shared Ramaphosa’s view, stating that the JSC had unconstitutionally sought to usurp the appointment powers of the President.

According to Judges Matter, a judicial watchdog, In nominating one candidate, the JSC broke protocol and have been accused of usurping the President's discretion.

Speaking to journalists at parliament, President Ramaphosa said that he had expected the JSC to acquit itself in the same manner it usually did when the president would forward the name of a single candidate to be interviewed for the post, although this time four candidates were shortlisted.

“In the past, the JSC was often given one name and they would then respond about the suitability of the candidate,”

“So we literally expected a report by them that would say these are the names of the people that we have interviewed who we believe are suitable. They went over that. They nominated a person,” he added.

According to Mail & Guardian, Government sources have said that the JSC exceeded its mandate by putting forth the name of a preferred candidate to the president, and had, in doing so, painted him into a political corner.

It was retired Deputy Chief Justice Dikgang Moseneke who once said that the drafters of the Constitution had had Nelson Mandela in mind when they conferred an inordinate amount of power on the President of the republic.

Moseneke, then still in office, said during a lecture at Unisa in 2014:

"The anacdotal account is that, At the time of the formulation of the final Constitution, whenever there was a dispute about who should appoint a public functionary, the negotiating parties were happy to leave the power in the incumbent president, Nelson Mandela. Afterall, he will do the right thing."

On the 10th of March this year, President Cyril Ramaphosa appointed Acting Chief Justice Raymond Zondo in accordance with Section 174(3) of the Constitution as the next Chief Justice, with effect from 1 April 2022. 

Looking at the way in which the JSC interviews unfolded, and their aftermath, Ramaphosa’s decision to appoint Zondo sent a clear message to the JSC that ultimate power for these appointments resides with the President and that he is under no obligation to endorse the JSC’s conclusions. This is one of the aspects that makes his appointment of Zondo quite remarkable: it amounts to Ramaphosa flexing his presidential muscles in an almost unprecedented way.

“With Justice Zondo assuming the position of Chief Justice, the position of Deputy Chief Justice will become vacant. President Ramaphosa has accordingly indicated his intention, once the new Chief Justice assumes office, to nominate Justice Mandisa Maya for the position of Deputy Chief Justice. This nomination will be subject to the process outlined in Section 174(3) of the Constitution,” read a statement by the Presidency on Thursday, 10 March 2022.

Analy Online appreciates and welcomes the appointment of Judge Raymond Zondo as the country’s Chief Justice. Wishing JP Maya well in her new position as the country’s Deputy Chief Justice.

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Credit:
1. Mondli Makhanya "The Desecration of the JSC" February 2022. City Press

2. Emsie Ferreira "Ramaphosa says JSC exceeded its mandate by recommending Maya for Chief justice" February 2022. Mail & Guardian

3. Rebecca Davis "Ramaphosa’s appointment of Zondo as Chief Justice shows strategic smarts at last" March 2022. Daily Maverick