JUDGES MATTER

Will SA’s next Chief Justice be chosen from among the country’s current judge presidents?

With the tenure of South Africa’s current Chief Justice Mogoeng Mogoeng ending in 2021, it’s time to find his successor says Judges Matter, an entity formed to monitor the yearly JSC (Judicial Service Commission) interviews as well as the judiciary in the interests of public transparency.

Judges Matter shares its thoughts on potential candidates in an article published on its website on 9 November 2020 (1) .

On the one hand, considering the significant increase in the Chief Justice’s administrative duties, it would make sense to select the country’s next Chief Justice from among the judge presidents who head up the various divisions of the High Court, thanks to their proven experience in running a high court, says Judges Matter. On the other hand, however, this would draw from judges not already on the Constitutional Court.

The Judge President candidates include:

Judge President Dunstan Mlambo who heads up the Gauteng High Court – “the largest and busiest high court in the country since 2012”. He’s a highly regarded administrator whose court has been praised for functioning with “relatively little disruption” and for running some trials via remote hearings during the Covid-19 lockdown2. However, media reports have also described a “collapse of infrastructure” at the Pretoria High Court, one of the two seats making up the Gauteng High Court3. Whilst this may raise questions for Judge President Mlambo, it should be noted that the report attributes the difficulties to inefficiencies in the Office of the Chief Justice, not to mismanagement of the court.

Says Judges Matter: “He is not merely an administrator, however, but an impressive jurist in his own right, and served as a judge of the Supreme Court of Appeal between 2005 – 2010. He has written significant judgments such as President of the Republic of South Africa v Office of the Public Protector, holding former President Zuma personally liable for costs in an abandoned attempt to interdict the Public Protector’s “State Capture” report. This decision has recently been upheld by the Supreme Court of Appeal. In Multichoice (Proprietary) Limited and Others v National Prosecuting Authority and Another, Judge President Mlambo found that the Oscar Pistorius murder trial could be broadcast.

“Judge President Mlambo also wrote the judgment of the Labour Appeal Court in South African Police Services v Solidarity on behalf of Barnard, which is probably the most significant South African case on whether affirmative action measures constitute unfair discrimination. Judge President Mlambo found that the impugned decision not to promote Barnard, a white woman, was justifiable. The decision was overturned by the Supreme Court of Appeal but upheld by the Constitutional Court.” He has, however, never acted as a judge of the Constitutional Court, which could be a disadvantage for him.

Judge President John Hlophe who holds a PhD from Cambridge University and is the longest serving of the current Judge Presidents. Says Judges Matter: “He has written some weighty judgments, too – in the 1998 decision in De Lille v Speaker of the National Assembly, he found that provisions of the Powers and Privileges of Parliament Act which attempted to exempt parliamentary privilege from judicial scrutiny were unconstitutional. The decision was upheld by the Supreme Court of Appeal. In Malachi v Cape Dance Academy, he found legal provisions which allowed a debtor to be arrested if it was believed they intended to flee the country to avoid paying what they owed, to be unconstitutional. This decision was confirmed by the Constitutional Court. More controversially, Judge President Hlophe’s decision to order the eviction of around 20 000 residents of the Joe Slovo informal settlement to allow for the development of a housing project was overturned by the Constitutional Court in the famous judgment of Residents of Joe Slovo Community, Western Cape v Thubelisha Homes.”

But, points out Judges Matter, he “has long been a controversial and divisive figure” who also happens to be “the subject of an ongoing complaint by his Deputy Judge President in the Western Cape High Court, Patricia Goliath, which is currently under consideration by the JSC. Most extraordinarily of all, he has been linked to an alleged plot to assassinate Deputy Judge President Goliath4 – although it must be stressed that those allegations remain unproven. In these circumstances, it is surely impossible for him to be put forward as a candidate.”

Deputy Judge President Aubrey

Ledwaba of the Pretoria seat of the Gauteng High Court, has acted as a judge of the Constitutional Court, judge of the Supreme Court of Appeal and is also the head of the Magistrates Commission. He “has written jurisprudentially significant judgments such as Democratic Alliance v Acting National Director of Public Prosecutions, which famously set aside the NPA’s decision to discontinue the prosecution of former president Zuma. DJP Ledwaba’s decision was confirmed by the Supreme Court of Appeal. While acting as a judge of the Constitutional Court, he wrote the judgment of the court in Moyo v Minister of Police, which found sections of the Intimidation Act to be unconstitutional. In Patel v National Director of Public Prosecutions, he awarded damages for malicious prosecution to the former KwaZulu-Natal High Court Judge President, Chiman Patel,” notes Judges Matter.

Judge President of the Free State High Court, Cagney Musi

Has served as an acting judge of the Constitutional Court, a judge of the Labour Appeal Court and chairperson of the Commission for the Remuneration of Public Office Bearers. His judgments include “S v Liesching, which dealt with the circumstances when a petition for leave to appeal may be reconsidered after new evidence comes to light; S v Rabako, which deals with when the crime of rape involves the infliction of bodily harm”, according to Judges Matter, and “he made the news in 2018 when he recused himself from the conduct tribunal which was to enquire into the complaint by judges of the Constitutional Court against Judge President Hlophe.” Having only been Judge President since 2018, however, Judge Matters suggests that he might be seen “as too junior for the position” at this point in his career.

The next Chief Justice could also be chosen from the current judges of the Constitutional Court – you may read Judges Matter’s thoughts on these candidates (5) .

1. https://www.judgesmatter.co.za/opinions/ judge-presidents/

2. Source: GCBSA https://gcbsa.co.za/

3. Source: Daily Maverick https://www. dailymaverick.co.za/article/2020-10-09desperate-message-from-senior-judge-showscourt-system-is-breaking-down/

4. Source: Daily Maverick

5. https://www.judgesmatter.co.za/opinions/ constitutional-court-next-chief-justice