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The role of a chief justice in a highly politicised environment

Zelna Jansen

Zelna Jansen

Published Oct 13, 2021


OPINION: The CJ plays a significant role in our country and is not a position for the faint-hearted, writes Zelna Jansen.

AS CHIEF Justice Mogoeng Mogoeng’s term in office came to an end this past Monday, the position of chief justice (CJ) is vacant. Seven names have been put forward for the position following President Cyril Ramaphosa’s call for the public to make nominations.

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The CJ is the head of the judiciary and Constitutional Court. The judiciary is the third arm of the government and has the power to review administrative decisions by the executive as well as declare laws passed by the legislature invalid.

Those not happy with the judgments delivered by the judiciary have levelled harsh criticism towards it. This leads one to wonder what the role of the CJ is in an environment where almost everything has become a political agenda or been accused of having one.

South Africa has had four accomplished male CJs. The first was Chief Justice Arthur Chaskalson. He was a key adviser on the adoption of the Interim Constitution. His first major constitutional decision was to declare the death penalty unconstitutional. As the first CJ, he, along with the legislatures, ushered in our democracy and ruled apartheid laws unconstitutional. He also helped establish the Legal Resources Centre in 1978, which sought to use law to pursue justice and human rights in South Africa. The LRC continues to serve the underprivileged today.

Chief Justice Pius Langa succeeded Chief Justice Chaskalson and served as CJ from 2005 to 2009. He was a member of the Convention for a Democratic South Africa (Codesa) and later its successor, the Multi-Party Negotiating Forum. A notable judgment he delivered was Bhe and Others versus Khayelitsha Magistrate and Others (2004). In the landmark case, he engaged the topic of how laws and customs must be transformed in the new democratic South Africa. He ruled that the male-centric rule of customary law dealing with succession had to be declared unconstitutional. This allowed woman to inherit.

Chief Justice Sandile Ngcobo succeeded Chief Justice Langa and served from 2009 to 2011. Chief Justice Ngcobo wrote and ruled in the case of Doctors for Life International versus the Speaker of the National Assembly (2006). The case looked at the tension between representative democracy and participatory democracy. It was ruled that Parliament had a duty to facilitate public involvement and that involvement had to be meaningful. This case is relevant today and guides public participation in the legislatures and the government. Chief Justice Ngcobo ushered in the establishment of the Office of the Chief Justice which moved the judiciary from the executive, entrenching the independence of the judiciary.

Chief Justice Mogoeng Mogoeng of the Constitutional Court makes a point during the case on Tlokwe Municipal by-elections. 090615 Picture: Boxer Ngwenya

Chief Justice Mogoeng Mogoeng wrote and delivered the judgments in the case of the Economic Freedom Fighters versus the Speaker of the National Assembly (2016). The judgment declared that former president Jacob Zuma had violated the Constitution by failing to act on the public protector’s Nkandla Report. A year later, in the case of the United Democratic Movement versus the Speaker of the National Assembly (2017), he ruled that the National Assembly conduct the vote of no confidence in the president by secret ballot. The CJ was however, criticised for his ambivalence towards gay rights. Concerns were also raised about his lenient rulings on rape and domestic violence cases.

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The Judicial Conduct Committee found the CJ guilty of contravening the Judicial Code of Conduct and ordered him to retract his statements. The CJ refused and is appealing the ruling.

These are only a few highlights of the significant and meaningful contributions made by CJs. They furthered the values of the Constitution through developing, interpreting and applying the Constitution in ways that impacted the lives of people from all walks of life. This enhanced the public’s view of the Constitution and the judiciary.

It should also be noted that the CJ is also responsible for setting and overseeing the maintenance of the standards for the exercise of the judicial functions of our courts and chairing the Judicial Service Commission. The JSC is responsible for recommending candidates for judicial appointments and complaints lodged against judges. The CJ is also responsible for the education of judicial officers.

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Section 174(3) of the Constitution gives the president the power to appoint the CJ after consulting the JSC. In a historic move, the president invited the public to nominate candidates for the position of CJ. Inviting the public to participate and setting up an independent panel to finalise shortlist is a noble attempt to obtain public buy-in. This creates transparency which will also enhance the public’s view of the judiciary.

It is, therefore, clear that the CJ plays a significant role in our country. He or she is responsible for leading the development of our Constitution in a changing environment, wherein every judgment delivered will be scrutinised through a political lens. It is not a job for the faint-hearted and it is crucial that a person of appropriate calibre and standing is appointed.

We hope that the new CJ will be humble, has a vast experience of the judicial system, law and human rights to conduct this intellectually demanding role. A person of integrity and right standing, respected by his or her peers and courageous. He or she must have strong moral convictions, and be aware that, as the CJ, he or she serves a nation of diverse nationalities and religious believes. The judiciary tends to be male-centric and therefore, it is time and in line with the values of transformation, for a woman to be appointed.

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Finally, the new CJ must bring stability and maintain and ensure the independence of the judiciary.

*Jansen is a lawyer. She is the chief executive of Zelna Jansen Consultancy.

** The views expressed here are not necessarily that of IOL.