By Angela Quintal
South Africa is set for a new Chief Justice, with Constitutional Court Judge Dikgang Moseneke tipped for the top post, although some within the ANC continue to root for Deputy Chief Judge Pius Langa.
Although Chief Justice Arthur Chaskalson is only due to step down in November 2006, he has indicated he will retire in March or April next year.
A 2001 amendment to the Constitution marked an end to the equal status once accorded to the Constitutional Court and Supreme Court of Appeal.
The Constitutional Court in Johannesburg is now the highest court in the land. The Chief Justice, who heads the Constitutional Court, is therefore the most powerful judge in the country.
Those who back Langa are of the view that several of the country's top judges have PAC or Black Consciousness backgrounds and are not steeped in the ANC's ideology and politics. They would like to see a Chief Justice with an ANC "charterist" background who understands the party's transformation agenda.
Moseneke, widely regarded as a brilliant legal thinker and independent-minded, is a former Robben Islander and ex-deputy president of the PAC. He served on a technical committee which helped draft the 1993 interim Constitution, and was also the deputy chairman of the Independent Electoral Commission.
He is respected by President Mbeki and Nelson Mandela who even wanted to offer him the post of justice minister in the first democratic government.
Moseneke's name appeared on the Pretoria Court Roll even before his official appointment as a judge in the Transvaal Provincial Division in 2001.
He was persuaded by Mbeki to leave the corporate world. As a result of the ministry jumping the gun, he had about a month to wrap up his business affairs including the chairmanship of Telkom, African Merchant Bank and Metropolitan Life. The Judicial Services Commission duly recommended his appointment to Mbeki.
It is was already understood then that Moseneke was the man to succeed Chaskalson. He succeeded Judge Johann Kriegler on the Constitutional Court in November 2002.
The Constitution was amended to allow Chaskalson, who would have been obliged to retire aged 70, a few more years on the Bench and - it is understood - to pave the way for Moseneke to become the country's top judge after a few years of experience on the Bench.
Langa is a former UDM activist. He has served as a member of the ANC's constitutional committee. He also advised the party at the Pretoria and Groote Schuur talks. Langa had the support of former Justice Minister Penuell Maduna. He is now apparently backed by Deputy Justice Minister Johnny de Lange.
Langa was appointed a Constitutional Court judge in 1994, became its deputy president in August 1997 and in 2001 became deputy chief justice.
The Judges Remuneration and Conditions of Employment Act, allows for a constitutional court judge to stay in office at 70 or at the expiry of a 12-year-term in such office.
Chief Justice Arthur Chaskalson was expected to step down already in September this year, but is currently taking the leave due to him before quitting the Bench early next year.
Some believe that it is an opportunity for Langa to prove that he would be a better candidate than Moseneke.
Langa, who is the acting Chief Justice while Chaskalson is away, last week intervened in the row that has pitted the Western Cape legal fraternity against each other and again raised issues of transformation in the judiciary.
Cape Judge President John Hlophe has publicly pointed fingers at advocates and judges in the Cape for resisting transformation. Some within the fraternity, including those with ANC links, believe he is part of the problem because of his so-called Africanist perspective.
The fact that Geoff Budlender, whose struggle credentials are impeccable was overlooked by the JSC for a second time, is also blamed on Hlophe, although it is understood that the pressure came from politicians in the JSC.
The trade-off was that John Dlodlo would be appointed and Cape High Court Judge Belinda van Heerden would be elevated to the Supreme Court of Appeal. Budlender is expected to be third time lucky later this month, when the JSC meets to consider vacancies, including Van Heerden's on the Cape High Court.
Hlophe's supporters believe the Judge President is correct and say the Western Cape court is the most untransformed in the country. - Political Editor.