The public nomination process for the next chief justice closed on Friday with four heavyweights in the running: deputy chief justice Raymond Zondo, Supreme Court of Appeal (SCA) president Mandisa Maya, Gauteng judge president Dunstan Mlambo and Constitutional Court justice Mbuyiseli Madlanga.
It's early days, but unlike the shock selection of Mogoeng Mogoeng in 2011, when then-president Jacob Zuma overlooked deputy chief justice Dikgang Moseneke, the process so far is likely to reassure the legal establishment.
Western Cape judge president John Hlophe and public protector Busisiwe Mkhwebane have also accepted nominations. But with Hlophe facing possible impeachment and Mkhwebane facing criminal charges of perjury, their chances are viewed as slim. Zondo, Maya, Madlanga and Mlambo are all independent, skilled and experienced jurists, and they have strong track records.
Nominations had to be accompanied by consent letters from candidates and supporting letters from legal organisations. The advisory panel established by President Cyril Ramaphosa and chaired by former International Criminal Court judge Navanethem Pillay has until October 29 to give him a shortlist. October 15 is the last day for objections.
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The constitution largely leaves the choice of chief justice to the president, who must consult political parties in parliament and the Judicial Service Commission (JSC). The president is not bound by their advice.
In the past, the president has nominated a single candidate, who the JSC then interviewed. With Mogoeng officially bowing out on October 11, critics have said it is late in the day for Ramaphosa's consultative approach. There could be a period when the highest court will have only six permanent justices instead of 11, and no leader.
The panel has also been criticised for containing no members of the judiciary or representatives of the organised legal profession. Freedom Under Law said its composition "detracted from the confidence in the process".
Vacancies on ConCourt
The state of the apex court is one of the urgent issues the new chief justice will face. In a court of only 11 judges, even one vacancy is felt and acting judges can fill the gap only to a limited extent.
There are disquieting signs on this score: the length of time some judgments have taken, errors in judgments that must later be corrected, delays in handing down judgments after they have been announced, a report of an application for leave to appeal getting lost - things that should not happen at the highest court.
Questions have also been raised about collegiality. What happens between the justices as they confer, debate and ultimately reach their judgments is confidential. But in 2017's Zuma impeachment judgment,Mogoeng publicly insisted that a summary of his dissent be read out in court by justice Chris Jafta.
More recently, the Zuma contempt of court judgments - by justice Sisi Khampepe for the majority, with justice Leona Theron dissenting - were unusually rancorous in their treatment of each other.
On this score, Maya may have the edge, with her track record of having confronted and overcome deep divisions at the SCA. In 2017 she laid these bare before the JSC. Later, interviews with other appeal judges revealed that her forthright approach in tackling them had been successful; collegiality at the Bloemfontein court had vastly improved, the JSC heard.
Maya has also been praised for the way the SCA seamlessly transitioned to virtual court hearings when the pandemic hit, and for its efficiency in dealing with its roll and delivering judgments.
However, the ConCourt has its own culture, traditions and practices and its head, since Arthur Chaskalson, has always been appointed from one of that court's number. It is not a bar to appointment not to have acted at the ConCourt, but Mlambo would be a complete stranger to the court. Maya acted for a term in 2012.
Zondo and Madlanga, on the other hand, will this month be the two longest-serving justices. They have institutional knowledge that may be invaluable in a period of turbulent transition as can be expected when four judges depart. On the other hand, they are left with only two and a half and three and a half years on the bench, respectively. Some view this as a disadvantage, saying the chief justice must be able to really get stuck in.
The administrative imperative
The role of chief justice has evolved into a much bigger one than head of a single court. A whole department, the office of the chief justice, is responsible for the administration of courts. There is the heads of courts structure and the JSC. The magistracy is also being integrated. The ability to lead an administration has become an increasingly important attribute in a chief justice.
Zondo would have worked closely with Mogoeng and should be able to take the reins easily, but it is not clear how involved he has been since he has been chairing the state capture commission.
When it comes to administrative leadership, Mlambo has almost legendary status. He is Mr Fix-It, brought back from the SCA to head the labour court and labour appeal court in 2010 when they were struggling; then moved to lead the Gauteng division - home to SA's busiest courts - when they were in trouble in 2012.
Mlambo is also credited with building Legal Aid SA into a success story, and when he was at the helm of the labour courts and the Gauteng courts he implemented pro bono representation services for those who cannot afford lawyers.
Maya and Mlambo have sat on the JSC and will understand that the chief justice's role as its chair is critical and tough. Zondo will chair the JSC for the first time next week, and his performance will be closely watched.
Zondo was also judge president of the labour court and labour appeal court. Madlanga appears at a disadvantage in the administrative arena, not having headed a court. However, he has been praised for how he built and ran the government's exchange control and income tax amnesty unit.
Madlanga's strength is his judgments - the core function of a judge. He is widely respected as one of the strongest ConCourt jurists, with judgments that are clearly reasoned and expressed. A chief justice is also expected to give intellectual leadership and one of the most important jobs of the appellate courts is to produce judgments that guide the lower courts.
Standing up to political pressure
Though he has been criticised for not running a tight ship at the state capture commission, Zondo's razor-sharp mind and work ethic have been on full public display there. He has an apparently monumental capacity to retain detailed evidence and has made relentless efforts to get through oral testimony, including in night sessions, before the commission's closing date.
He also exhibited backbone in how the commission pursued its contempt case against Zuma when the former president's snub of the body put the rule of law at risk.
The courage to stand firm in defence of the rule of law and protect the independence of the judiciary is a crucial quality that a chief justice must possess. On this score, Mlambo also has a strong track record, having in a judgment rebuked the government when former Sudanese president Omar al-Bashir, wanted by the International Criminal Court for crimes against humanity, was spirited out of SA in breach of a court order.
Mlambo has also consistently stepped up to preside over the controversial political cases in his division, in line with the tradition that a court's leader does so.
As a result, he has been vilified by Zuma's supporters, but those who call him a "Thuma mina judge" may forget that he also sent Pravin Gordhan packing when the then-finance minister asked the courts to intervene when the Guptas were putting pressure on him over the closure of their bank accounts.
Gender transformation
The constitution says there is a need for the judiciary to broadly reflect SA's population in terms of race and gender. Strides have been made by the JSC on race, but less so when it comes to gender. There are only two women heads of court - Maya and North West judge president Monica Leeuw.
One of the earliest female judges and the first woman to lead the SCA, Maya was a trailblazer for other women and has dedicated herself to gender transformation in the judiciary. She is the only woman judge candidate and if appointed would be the first woman chief justice - an easy feather in Ramaphosa's cap as she is also eminently qualified.
All the candidates have their passionate supporters, but backers of Mlambo, Zondo and Madlanga said they would happily get behind Maya. She seems to be the consensus candidate. And with a president reputed to like consensus, she may be the one to watch.
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