“Reflecting back” on public participation in the judicial appointment of the South African Chief Justice?

• Jurisdiction: South Africa
• DOI: 10.17159/2225-7160/2024/v57a5
• Author: Nomthandazo Ntlama-Makhanya
• Pages: 58-78
• Date: 01 June 2024
• Published date: 01 June 2024
• Published By: University of Pretoria

58 2024 De Jure Law Journal

“

Reflecting back

”

on public participation

in the judicial appointment of the South

African Chief Justice?*

Nomthandazo Ntlama-Makhanya

Professor of Public Law; Department of Public and Constitutional Law

Faculty of Law, University of Fort Hare

SUMMARY

After more than two decades of South Africa’s democracy, the significance

of the reform of the judiciary is grounded in the process of judicial

appointments to restore its public credibility from South Africa’s tainted

past. Such reform is now constitutionalised through the establishment of

the Judicial Services Commission (JSC) which serves as a focal point in the

restoration of such confidence in the judiciary. The JSC’s processes seek to

ensure the rebuilding of public confidence which entails, amongst others

the legitimacy of judicial appointments that should be reflective of gender

and racial composition as envisaged in the Constitution 1996. However,

the public has since weighed heavily on the criteria and discretion

exercised by the JSC on its judicial appointment processes. The debates

were intensified by President Ramaphosa’s unprecedented reform to

involve public participation and establishment of the advisory panel in his

constitutional role of the nomination process of the Chief Justice. The

President opened an opportunity for a pool of eligible candidates to be

recommended for his consideration after they were determined and sifted

by the advisory panel. The last four candidates were recommended by the

panel and after their interviews, the JSC recommended Justice Mandisa

Maya as Chief Justice for appointment by the President. Instead, the

President appointed Justice Raymond Zondo as Chief Justice and Justice

Maya as Deputy Chief Justice which raised debates and questions on the

exercise of this constitutional discretion.

The purpose of this article and its focus and limitation is to examine the

role of public participation and the establishment of the advisory panel in

the nomination process of the Chief Justice. It raises questions about

whether public participation does not amount to the representative form

of democracy in judicial appointments. In addition, it will restore trust,

credibility, and confidence and extend the protection of the judiciary from

unjustified attacks from the members of the public. In turn, the value of

the credibility of the recommendations of the JSC as a constitutional

structure in the judicial appointment processes. Therefore, the paper

argues that public participation in the nomination of the Chief Justice is an

indirect intrusion of the representative form of democracy in judicial

appointments. Public participation is also unlikely to make a significant

How to cite: Ntlama-Makhanya ‘“Reflecting back”

on public participation in the judicial appointment of the

South African Chief Justice?’ 2024 De Jure Law Journal 58-78

http://dx.doi.org/10.17159/2225-7160/2024/v57a5

* The paper was presented at the Society of Law Teachers of Southern Africa

Conference entitled: Public participation: a welcomed reform for the judicial

appointment of the South African Chief Justice? hosted by the Faculty of Law,

University of Fort Hare, East London, 11-14 July 2022.

Public participation in the judicial appointment of the South African Chief Justice? 59

contribution to the protection accorded to the judiciary by the

Constitution. If the President could “water down” the JSC’s recommen-

dation, there is uncertainty towards the strive for the attainment of

transformative ideals of the new democracy.

1Introduction

The dawn of democracy which presented itself in 1994 in South Africa

provided a unique opportunity for the reform and transparency in the

nomination process of eligible candidates for judicial appointments. This

period brought a dramatic change in judicial appointments to ensure the

steering of the judicial ship in compliance with the values and prescripts

of the Constitution1 and those of the international community as

envisaged in many of the international instruments.2 The establishment

of the Judicial Services Commission (JSC)3 directed much-needed change

to ensure the reflection of the foundational values of the Republic4 in the

judiciary. The JSC carries a greater responsibility to ensure the credibility

and building of public confidence in its judicial appointment processes

towards the advancement of the integrity of the judiciary. This process is

foundational to the restoration of public confidence in the judiciary which

was tainted by South Africa’s apartheid past wherein parliament reigned

supreme over the judiciary.5 As similarly expressed by Ackerman J in S v

Makwanyane6 on South Africa’s history and the envisaged future which is

of direct application to the argument being made in this article, pointed

out that:

the preamble to the Constitution refers to the creation of a new order in a

state, which, amongst other things, is described as a “constitutional state,”

1 Constitution of the Republic of South Africa, 1996, hereinafter the

Constitution.

2 See Universal Declaration of Human Rights 1948; International Covenant

on Civil and Political Rights, 1966; Convention on the Elimination of All

Forms of Discrimination Against Women 1979; Convention on the

Elimination of Racial Discrimination 1965; African Charter on Human and

Peoples Rights 1981; United Nations Economic and Social Council “The

Bangalore Principles of Judicial Conduct” (2006) Vienna; Lilongwe

Principles and Guidelines on the Selection and Appointment of Judicial

Officers 30 October 2018 and Judicial Service Commission Act 9 of 1994.

3 See S178 of the Constitution.

4 See S1 of the Constitution which reads as follows:

The Republic of South Africa is one, sovereign, democratic state founded on

the following values:

(a) Human dignity, the achievement of equality and the advancement of human

rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and

a multi-party system of democratic government, to ensure accountability,

responsiveness and openness.

5 Bader “Parliamentary supremacy vs judicial supremacy: how can judicial,

public and political dialogue be institutionalized?” 2016 Utrecht Law Review

159-183.

6 1995 6 BCLR 665 (CC).