The appointment of the country's chief justice is a tricky and gruelling process whose outcome will ultimately be decided by President Cyril Ramaphosa.
Ramaphosa will choose between four candidates who were interviewed this week. Constitutional Court justice Mbuyiseli Madlanga was the first one to appear before the Judicial Service Commission (JSC) on Tuesday, followed by Supreme Court of Appeal justice Mandisa Maya, judge president Dunstan Mlambo and deputy chief justice Raymond Zondo.
Advocate Dumisa Ntsebeza, a former member of the JSC, said there would be “post-interview deliberations” in the JSC after the interviews are completed.
“The deliberations are held behind closed doors and commissioners evaluate each candidate's performance and if they all agree on a particular candidate, they send the name to the president for appointment,” Ntsebeza said.
He said while the process is slightly different to when he was still in the JSC, he still expected JSC members to vote for their favourite candidate.
“This is virgin territory of course because in the past, only one candidate nominated by the president was interviewed by the JSC and none of those who were interviewed were not appointed by the president,” Ntsebeza said.
He added: “What is probable, here, is that they will vote, if they can't get consensus, and the one with the most votes will be the chosen one and the name of that candidate would be sent to the president as a recommendation for appointment.”
Mbekezeli Benjamin, research and advocacy officer for the organisation Judges Matter, said in terms of the constitution, the role of the JSC appointing the chief justice was a consultative one.
He said this means the JSC can only advise Ramaphosa on whether they think any, some or all four of the candidates are suitable for appointment as chief justice.
“They may also choose to indicate their preferences, including ranking them according to that preference. It is not clear to us what criteria the JSC uses to assess which of the candidates they prefer or even what will inform their decision on whether any of the candidates qualify to be chief justice,” he said.
Benjamin said Judges Matter had previously raised the issue of criteria used in the selection of chief justices on several occasions over the years and the JSC had previously indicated that the criteria would be communicated publicly once the appointment was made.
“After the interviews conclude on Friday, the JSC will meet on Saturday to deliberate on the interviews conducted this week. After these deliberations, the JSC will write a letter to Ramaphosa advising him of the outcomes of the consultation. The JSC has indicated they will not communicate the contents of this letter to the public,” Benjamin said.
Benjamin added in case of a stalemate, the JSC would vote and the majority rules.
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