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HomeFeatureThe race to replace Mogoeng is picking up momentun

The race to replace Mogoeng is picking up momentun


When former president Jacob Zuma nominated Mogoeng Mogoeng for the position of chief justice in 2011, South Africa was stunned. Not stunned into silence, because this noisy and boisterous nation is not good at keeping quiet.

A storm erupted as NGOs dug up Mogoeng’s unflattering judicial record – which included appalling judgments with equally appalling language – during his time as a judge and judge president in North West.

Among many other things, his previous association with the Bophuthatswana Bantustan was also brought up to prove his unsuitability.

Had it not been for Zuma and the ANC leadership’s aversion to the rule of law, Mogoeng would never have got a look-in.

It was their intention to weaken the judiciary that had matured under the leadership of chief justices Ismail Mahomed, Arthur Chaskalson, Pius Langa and Sandile Ngcobo, so Zuma picked Mogoeng – an intellectual lightweight – over the universally respected former Deputy Chief Justice Dikgang Moseneke, who was reviled by the powers that be.

Even if he were to snub Moseneke, bypassing the rest of the Constitutional Court justices and other senior jurists in lower courts was a clear signal of the tame and lame judiciary Zuma and his lieutenants hoped to create.

Save for the landmark Nkandla judgment, Mogoeng contributed little to jurisprudence and was outshone by his colleagues.

He stood out for his weak minority judgments.

He will mostly be remembered as the comical preacher with a penchant for controversy. Fortunately, South Africa’s judiciary was resilient enough to withstand whatever Zuma’s cohort intended to achieve by putting Mogoeng at its helm.

The person who takes the baton from Mogoeng will be restoring dignity to the office. Unlike his predecessors, President Cyril Ramaphosa has opted not to exercise “consequential” power and appoint the head of the judiciary.

Instead, he outsourced this power to the general public, asking citizens to nominate candidates. Then he outsourced the trimming of the unwieldy list to a committee of experts.

After further trimming the list to four names, he has outsourced the power to select  the person for the job to the Judicial Service Commission (JSC).The good thing is that there is zero chance of the JSC getting it wrong.

The four people who will be grilled by them in public interviews are all stellar and the panel will have a headache singling one out.

MANDISA MAYA – President of the Supreme Court of Appeal (SCA)slide 1 of 1Deputy chief justice in the Constitutional Court RMANDISA MAYA – President of the Supreme Court of Appeal (SCA)

For much of this year, there has been subtle and not-so-subtle pressure on Ramaphosa to appoint the nation’s first woman chief justice.

While the name of Justice Leona Theron has been bandied about by her unofficial lobbyists, she was never going to be a serious consideration. This is not because she is unaccomplished.

The opposite is true. It is most likely because of her perceived closeness to Mogoeng, whom she has spoken of as a mentor.

Maya, on the other hand, was always considered one of the front-runners, regardless of the overdue need for a woman head of the judiciary.

The SCA she heads is considered to be the most efficient division in the South African judiciary.

She is known for strong leadership, thoroughness of application in her judgments, and for being a versatile judge with a grasp of different aspects of the law.

In supporting her application for the deputy presidency of the SCA in 2013, the Johannesburg Bar stated that throughout her judicial career, she had demonstrated that she was a “diligent, hard-working and committed judge with a sound work ethic and a commitment to upholding the rights of the most vulnerable members of our society”.

It further said that her “decisions demonstrate the candidate’s excellent grasp of the law, including constitutional law, in wide-ranging and complex issues”.

RAYMOND ZONDO – Deputy Chief Justice

Had it not been for the hot potato of running the Commission of Inquiry into Allegations of State Capture that Mogoeng handed Deputy Chief Justice Raymond Zondo, Ramaphosa might have had to look no further than the most famous judge in South Africa.

It would have been an easy decision to do a natural succession.

Raymond Zondo

Zondo’s standing as a jurist was carved out during his tenure at the labour court and Labour Appeal Court. It is argued that there are few in the judiciary who can match his grasp of labour law.

The one thing he has been indicted for was the weak administration of the labour courts that he ran, with reports that files would sometimes go missing, as well as the slowness of the conclusion of matters.

If you thought Zondo’s long-winded soliloquies are torturous, you are not alone. The legal fraternity has long complained about the length of his written judgments, which, despite not-so-quiet protestations, has never deterred Zondo.

While praising the judgments for lucidity and strength of reasoning, lawyers say he could make them a lot tighter.

Complicating Zondo’s passage to the top will be the predictable hostility from some sections of the overly politicised JSC. 

Zondo’s work since the beginning of the commission has not endeared him to some in the ANC, and certainly the entire EFF, and it is not beyond the party to use the this process to settle scores.

MBUYISELI MADLANGA – Constitutional Court Justiceslide 1 of 1Deputy chief justice in the Constitutional Court RMBUYISELI MADLANGA – Constitutional Court Justice

There were brickbats thrown at then high court judge Mbuyiseli Madlanga when he quit the judiciary to return to private practice.

Then a rising star in the judiciary, the young Madlanga cited family reasons for returning to his practice so that he could make more decent money than the judiciary was paying. 

The debate became unsavoury as some accused him of selfishness by prioritising his family’s financial wellbeing over the transformation of the then highly untransformed judiciary.

At the time, Madlanga’s career was on the up and up, and he had even had the opportunity to act in the SCA and the Constitutional Court.

He was already being spoken of as a future SCA president or chief justice.

After years of doing what he had to do, he returned to the judiciary and his progress was as mercurial as it had been before, with him landing up in the apex court in 2013.

Madlanga is regarded as one of the sharpest minds at the court and has a strong grasp of wide-ranging subjects. He will earn the instant respect of his fellow justices, the judiciary and the rest of the legal fraternity.

DUNSTAN MLAMBO

Gauteng Judge President Dunstan Mlambo

If it was legally and morally okay to bet on this process, Gauteng Judge President Dunstan Mlambo would be the candidate to put your money on.

Mlambo exudes authority and is highly regarded as a leader in the judiciary.

He has remained unshaken by the political bullying of the Zuma years. He took responsibility for some of the politically sensitive issues during the turbulent Zuma years, sitting on full Bench matters and owning the judgments that angered the hostile political establishment.

Besides his judicial gravitas and strong leadership, Mlambo is credited for ensuring that the busiest division in the country runs efficiently.

He is likely to meet with the same arrows as Zondo has, as he has made rulings that put him in line with the ANC’s radical economic transformation faction as well as the EFF. 

Should he get the job, he will have avoided the perception that he was handpicked by Ramaphosa for because of some of the above-mentioned rulings.Of the many powers and responsibilities that the C

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