University of Cape Town: New Chief Justice will have to be a leader of remarkable calibre to navigate ConCourt through era of lawfare

With the 26 January 2020 announcement of US Supreme Court Justice Stephen Breyer’s intention to retire, President Joe Biden is being reminded of his campaign promise to nominate the first black woman to the bench.

South Africa could also see a similarly historic appointment. President of the Supreme Court of Appeal Mandisa Maya will be interviewed this week by the Judicial Service Commission (JSC) and would become the first woman Chief Justice should she be appointed by President Cyril Ramaphosa.

The JSC will also interview three other judges on the shortlist — acting Chief Justice Raymond Zondo, Constitutional Court Judge Mbuyiseli Madlanga and Gauteng High Court Judge-President Dunstan Mlambo — all scheduled to take place from 1 February 2022.

The politicisation of the judicial appointment process

As one of the liberal stalwarts of the US Supreme Court at 83, the timing of Breyer’s retirement is a necessary political move — giving President Biden enough time to fill the seat before the midterm elections, where Democrats may lose control of the Senate.

In 2016, Senate Republicans stalled the confirmation of Obama Supreme Court nominee Merrick Garland for nearly a year. An appointment to the Supreme Court cannot be made in an election year, claimed Senate leader Mitch McConnell.

Denying Obama his appointment, Republicans then rushed through Trump-nominated Neil Gorsuch and later Brett Kavanaugh. With the passing of Justice Ruth Bader Ginsburg in September 2020, the Republican-controlled Senate confirmed Amy Coney Barrett with unprecedented speed — 38 days after Ginsburg’s death and eight days before the presidential election.

The blatant politicisation of the judicial appointment process by the Senate has caused the US Supreme Court to be increasingly viewed as a highly politicised and arguably captured institution.

The dynamics playing out in the US should offer a warning about how a dodgy judicial appointment process can transfuse on to the court, undermining the legitimacy of the court and destroying the perception that it is fair, independent and apolitical.

The integrity of the selection process is of the utmost importance for confidence in the justice system.

What the new Chief Justice will inherit

The term lawfare has become the overarching term to describe the judicialisation of politics — our increasing reliance on turning to the courts to resolve political problems. This is caused by the breakdown of politics in the democratic space.

In a political culture marked by corruption, State Capture and widespread institutional failings, with the institutional imbalance caused by a legislature wilfully delinquent in holding executive power to account, the Constitutional Court is approached as a constitutional bulwark.

The first era of the Constitutional Court focused on creating a jurisprudence that determined the contours of socioeconomic rights claims. These early years saw the court as largely deferential to the ANC because it viewed the ruling party as a crucial partner in implementing the constitutional vision of socioeconomic upliftment.

From 2008, a second era of the Constitutional Court has been coloured by constraining executive power and the abuses that can adhere in a dominant party democracy. The Constitutional Court has had to grapple with forging a more substantive, anti-domination jurisprudence as it steps into the accountability vacuum to uphold the integrity of the constitutional system.

It has incorporated the principle of legality in review of administrative action, extended grounds of review into “unconscionable state conduct”, “legitimate expectation” and procedural fairness, and expanded jurisdictional standing if it is in the public interest. All of which has been towards the overarching goal of holding power to account and not letting the state escape its responsibilities.

Increasingly, the court is being asked to rule on issues where a mechanistic or formalist approach would lead to unfairness, prejudice, injustice and large-scale social disruption or crisis. The court is confronted with the fidelity to legal rule pulling in one direction, and the interests of justice pulling in the other.

Numbers alone can speak to the pace and scope of the flow of the political into the judicial and the demands on the court to intervene and resolve. From 1995-2008, the Constitutional Court heard an average of 24 cases a year. From 2009-2019, cases heard nearly doubled to an average of 42 a year. More revealing is that the number of applications made to the Constitutional Court has tripled since 2009.

The Constitutional Court has always had an expansive role and wide review powers as the upper guardian of constitutional democracy. Any act of public power is subject to constitutional control. The Constitutional Court is thus inevitably a powerful political actor and will unavoidably be drawn into politically sensitive matters.

The duty to be responsive and be the last great hope when non-judicial mechanisms for accountability have been treated with impunity, has led to the court adopting a role of judicial statesmanship to be a compensating force in a dominant party democracy.

This has had the consequence of pulling the court into the political arena and exposing the institution to political aggression. The era of lawfare has placed the court under enormous pressure. It has faced repeated attacks by the highest levels of the ruling party.

Additionally, there is dangerous criticism of the constitutional project as a whole — that too much was compromised at the time of constitutional negotiations; that the Constitution has obstructed progress and transformation. (See Tourism Minister Lindiwe Sisulu’s deeply troubling op-ed questioning the value of the Constitution and the rule of law for Africa.)

This is the climate within which a new Chief Justice will have to lead the court.

The court’s heavy burden will get heavier

As a decade of malfeasance, maladministration, corruption and kleptocracy begins to be uncovered by the Zondo Commission and various investigative bodies, there are going to be more and more applications to the court to challenge unlawful appointments and prosecute wrongdoers.

Those who are at risk of criminal exposure will most likely launch vocal attacks on the court, while simultaneously the judicial process will be used to delay, obstruct and evade responsibility.

With so much being asked of the court, it cannot afford to have its moral authority compromised or diminished. As attacks on the court are framed around the narrative of the court being counter-majoritarian, or anti-democratic, the role that the JSC plays in judicial discipline and judicial appointment bestows the court with a degree of democratic legitimacy. The JSC is the connection between judicial independence and judicial accountability.

But the conduct of the JSC is falling well short of this responsibility and it is greatly damaging.

After the JSC’s interview process had been challenged as arbitrary, irrational, unfair and devoid of deliberation by the Council for the Advancement of the South African Constitution, the JSC agreed to redo the April 2021 interviews.

In those same interviews, Chief Justice Mogoeng Mogoeng adopted an unheard-of unlawful rule that a judge must have been on the bench for three years to be considered for the Constitutional Court.

Redone in October 2021, the list of names presented to President Ramaphosa remained the same — and Judges Jody Kollapen and Rammaka Steven Mathopo were appointed to the Constitutional Court.

Former Justice Johann Kriegler has described the JSC’s interview process for judicial nominees as a “political mauling”.

The 1 February interviews for Chief Justice will tell us whether the JSC has learnt its lesson and wishes to reclaim some legitimacy by operating with decorum and procedural fairness.

More damaging to judicial independence and the perception of independence is the recent revelation that the ANC Cadre Deployment Committee had made “recommendations” as to which judges should be appointed to the Constitutional Court.

The judicialisation of politics leads to the politicisation of adjudication. In the expansion of judicial power, the politics of judicial appointment becomes intensified.

The new Chief Justice is going to have to be a leader of remarkable calibre to navigate the court through this era of lawfare. With many fairly new justices on the bench, the court will have to quickly become a unified family of brothers and sisters if it is to foster judicial resilience and stand resolute.

They have to preserve the dignity and symbolic power of the court and prevent reactionary efforts to reshape it, limit its powers or capture it.

The new Chief Justice must take on the role of compassionate institutional steward to ensure that the institution remains a citadel of justice and a force capable of compelling compliance and ennobling others to fulfil their constitutional responsibilities.