It doesn’t detract in any way from the elevation of Raymond Zondo as chief justice to suggest the appointment is an uncharacteristically independent and even brave move by President Cyril Ramaphosa. It is to be welcomed on all levels, and neatly lines up the succession of appeal court president Mandisa Maya as his successor when he retires just over two years from now.
For a while, it seemed as if Ramaphosa had seriously bungled the appointment of a successor for Mogoeng Mogoeng. His decision to broaden participation in the selection process saw the Judicial Service Commission (JSC) called upon to interview a shortlist of candidates. The JSC emerged from the process with whatever reputation it had previously enjoyed in tatters.
Though it is unclear how much weight Ramaphosa was going to attach to the outcome of the ad hoc process, Maya emerged as the JSC's preferred candidate.
Even in supporting her, however, the JSC did her a disservice by harping on her gender, and the other candidates had to endure being coerced into declaring, as if that was necessary, that they wouldn’t be opposed to a woman chief justice. The questioning faced by the candidates was crude and did nothing to serve the transformation injunctions in the constitution. Little wonder that critics lambasted this “kangaroo court’’, exemplified by the attempt to smear Gauteng judge president Dunstan Mlambo with a “rumour” of a sex scandal, which must rank among the low points of SA’s judicial history.
Having muddied the waters with the JSC charade — and this process surely has to be re-examined for its efficacy and fairness — Ramaphosa surprised the pundits with his choice of Zondo. The EFF, whose voice was heard so loudly in the JSC hearings, was especially critical.
It’s worth noting, too, that the ANC told Ramaphosa in a letter late last year that its preferred candidate was Maya. Leaving aside the controversial and condescending questioning she faced at the JSC hearings, Maya acquitted herself as someone who could now, and in two years’ time, make an excellent chief justice. And she no doubt will.
If SA is the winner, and politically Ramaphosa has stood up to his loudest critics, the loser is surely the JSC
The casualty of the JSC process was Mlambo, whose integrity and administrative skill have never been in doubt. He, too, would have made an excellent chief justice, and one hopes he will continue to be a stalwart of our judiciary.
However, as much as the choice of a chief justice is about ensuring and upholding the administration of justice and the constitution, it is also a political decision. A chief justice is more than just a super-administrator. He or she is also a yardstick of integrity and an exemplar of unimpeachable public service, as well as being an excellent jurist and a person who understands what needs to be done if our courts are to weather the political storm threatening them.
The mischievous notion that the task Zondo performed as chair of the state capture inquiry was somehow in the service of a supposed Ramaphosa faction is hardly plausible and doesn’t do justice to Zondo’s palpable integrity; nor to his findings, which cannot be happy reading for the ANC as a whole.
If SA is the winner, and politically Ramaphosa has stood up to his loudest critics, the loser is surely the JSC. The unwarranted ambush of Mlambo was excised from the records of the proceedings but the damage has been done. Much has been said about reforming the JSC but the unfortunate fact is that political parties cannot be excluded from the selection process for judges.
Surely, though, there is a case for a higher bar for the conduct of JSC members. There must be procedural rules for what may be asked of candidates, rules drawn from the law of evidence. That would surely prevent the JSC hearings from becoming, as the chief justice interviews did, a free and privileged political platform with someone who was, after all, not a politician, as the victim.
All of SA will wish Zondo well in his endeavours, and pray that he continues to exhibit the wisdom that makes him so worthy an occupant of this highest of our legal offices.
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