The tenure of Chief Justice Mogoeng Mogoeng comes to an end next month; therefore, it is right to think about who should be chosen as the next Chief Justice and what basis that decision should be made. South Africa has never had a woman Chief Justice, and just as with the presidency of the ANC and the country, women in South Africa must not fear to state unequivocally that it is time for a woman to lead the Constitutional Court. They must be able to take the principled stand again, as they did with the presidency of the country, to state that women must lead in the country’s judiciary as well. In a country suffering from the plague of gender-based violence, women must lead in fighting against this illness, and it must be known that no job or space is out of bounds for women.
The appointment of a woman as Chief Justice is a prospect that ought to be taken very seriously as it is a constitutional requirement. Section 174(2) of the Constitution obliges explicitly to consider broadly the racial and gender composition of South Africa when judges are appointed. This section of the Constitution has made South African Constitution to be regarded as a model for the world on consideration of gender equality. Advocate Tembeka Ngcukaitobi considers the magnitude, vision and ambition of the South Africa constitution unprecedented.
Taking into consideration the long history of women in the legal profession being marginalised and the challenges that continue to be experienced by women judicial officers, appointing a female Chief Justice would have enormous symbolic significance in South Africa. Women have been appointed as Chief Justice in other African countries; for example, Nemat Abdullah Khair was appointed in 2009 as Chief Justice of Sudan, Mabel Agyemang was appointed in 2020 for Turksa and Caicos, and this year Martha Koome was appointed as Chief justice of Kenya.
Political leaders in the country have already indicated their ideas in this line. In the lead-up to the ANC’s 54th National Conference, the ANC Women’s League took the decision to support a woman for the presidency of the organisation and then the country. Further, the ANC Deputy Secretary-General Jessie Duarte has been appealing publicly for the next Chief Justice to be a woman.
The ideology was cemented when President Cyril Ramaphosa appointed Sisi Khampepe as acting Chief Justice to replace Mogoeng Mogoeng, who has gone on long leave. Khampepe, a graduate of Harvard University, is the first woman to occupy the position. She has been a judge at the Constitutional Court since 2009. She’s previously served on the Truth and Reconciliation Commission that investigated crimes committed during the apartheid era.
Since the position of Chief Justice was moved from the Supreme Court of Appeal to the Constitutional Court in 2001, Chief Justices have always been appointed from among the ranks of current Constitutional Court judges. However, appointments may be made from a different pool as not all Constitutional Court judges would have held formal judicial leadership positions.
The Constitution requires judicial appointments to be made on the advice of the Judicial Service Commission. Chief justice is the chair of the commission and has the authority to ensure that it recruits and makes judicial appointments swiftly. The last hearings of the commission in April were contaminated by some unruly and unlawful conduct, and fresh interviews will be conducted in October. In 2011, Justice Mogoeng’s interview commanded “high public interest” and lasted the best part of two days, both of which were televised.
The role of the commission in the process of appointing the chief justice is significant. Yet, the Constitution is somewhat vague as to what is expected of the committee. It simply provides that the president makes the appointment “after consulting” the commissioners as well as the leaders of political parties represented in parliament. So the Judicial Service Commission has, in fact, carved out an essential role for itself. Although, in the end, the president can choose to ignore whatever transpires at the interview.
Potential female candidates
There’s no doubt that South Africa has female justices who possess the qualities of an ideal Chief Justice. Among them is Justice Mandisa Maya, who has been the current president of the Supreme Court of Appeal since 2017. She has leadership experience as head of the second-highest court in the country and is one of the most senior judges in the country.
Justice Nonkosi Mhlantla is another potential figure. She is an experienced judge, having been first appointed to the high court in 2002, and served as a justice of the Supreme Court of Appeal from 2009 until her appointment to the Constitutional Court in 2015. With the retirement of Justice Khampepe this year, she will become the most senior woman judge on the Constitutional Court.
Justice Leona Theron is also a prominent candidate. She is an experienced judge, having been first appointed to the high court in 1999 until her appointment as a justice of the Supreme Court of Appeal in 2010. She has been a judge of the Constitutional Court since 2017. Justice Theron is very shrewd at technology and serving well as a coordinator since Constitutional Court moved to virtual hearings during the Covid-19 pandemic.
We have witnessed women serving on the Constitutional Court champion for the rights of women. Thus, the appointment of a woman as chief justice to the highest court of our country would send a signal to every facet of our criminal justice system that the cases and the cause of women, especially those as survivors of some of the most horrendous crimes our country has seen, must be taken seriously and handled efficiently.
Dr. Norah Msuya is an academician and writes in her personal capacity.