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The appointment of a woman as Chief Justice is a prospect that must be taken very seriously. SA has never had a woman as Chief Justice, and section 174 (2) of the Constitution specifically requires that ‘[t]The need for the judiciary to broadly reflect the racial and gender composition of South Africa ‘must be taken into account when appointing judges.
Over the past few months, we have published a number of articles on the office of Chief Justice, including articles on the importance of the role of the Chief Justice, he criteria that we believe a president of the Supreme Court should possessY the process by which the president of the Supreme Court is appointed. These articles are motivated by the fact that the term of the current Chief Justice, Mogoeng Mogoeng, ends in 2021. Therefore, it is timely to start thinking about who should be elected as the next Chief Justice and on what basis that is. decision. should be made.
In this series of articles, we discuss who are some of the possible candidates who could be chosen to be the next Chief Justice, looking at various possible candidates in specific categories. In this article, we consider potential candidates if the next Chief Justice is to be a woman.
South Africa has never had a female Chief Justice
The appointment of a woman as Chief Justice is a prospect that must be taken very seriously. South Africa has never had a woman as Chief Justice, and article 174 (2) of the Constitution specifically requires that “[t]The need for the judiciary to broadly reflect the racial and gender composition of South Africa ”must be taken into account when appointing judges.
In light of the long history of marginalized women in the legal profession, as well as the challenges that women judicial officers continue to experience, appointing a woman president of the Supreme Court would have enormous symbolic importance. The idea is clearly being considered within the corridors of power, with the ANC’s Deputy Secretary General Jessie Duarte publicly calls for the next Chief Justice to be a woman.
The list of candidates below is by no means exhaustive, and we came to these names after seriously considering the qualities. we believe that an ideal court president should have. These include thought leadership, a deep understanding of the judiciary and its place in our democracy, proven management and leadership skills, and the ability to communicate and build relationships. We also believe that it is important for the next Chief Justice to be tech savvy to lead a judiciary that is increasingly required to work virtually in the Covid-19 era.
Top Judges Matter Chief Justice Candidates
Justice Mandisa Maya
Magistrate Maya is the current president of the Supreme Court of Appeals, a position she has held since 2017. Therefore, she has leadership experience as president of the second highest court in the country and is one of the highest-ranking judges in the country, with He was first appointed to the High Court in 2000.
Maya has served as a judge of the Constitutional Court in 2012. As head of the SCA, she has had to deal with what is reported ongoing tensions between judges, although it is not clear how, if at all, this will affect the likelihood that she will be appointed President of the Supreme Court. When the Covid-19 pandemic hit and SA went into lockdown, Maya justice is credited with leading the best response in the judiciary moving quickly to virtual audiences and effectively eliminating the SCA workload during the period. Virtual hearings will now be the default function of the appeals court for the foreseeable future.
Justice Maya has written many important judgments, including Minister of Security and Surveillance v F, which paved the way for a Constitutional Court decision to hold the minister responsible for a violation committed by an off-duty police officer; Correctional Services Department vs. Popcru, who considered unfair the dismissal of prison service officials for refusing to cut their dreadlocks; and in AfriForum vs. President of the Council of the University of South Africa, made history by writing the first recorded judgment of a high court in South Africa in isiXhosa.
It is surely one of the first, regardless of the criteria used, and is the most obvious contender if a woman is appointed as president of the Supreme Court.
Justice Nonkosi Mhlantla
Appointed to the Constitutional Court in 2015, Justice Mhlantla is something of an outsider, as she has not held a senior leadership position in the judiciary and does not have an especially prominent public profile, compared to some of her colleagues. However, she is an experienced judge, who was first appointed to the superior court in 2002, and served as a judge of the Supreme Court of Appeals from 2009 until her appointment to the Constitutional Court in 2015. With the retirement of the Judge Khampepe in In 2021, she will become the highest ranking judge in the Constitutional Court.
Judge Mhlantla has written important judgments, including Farjas against the Minister of Agriculture and Territorial Affairs, which was in charge of calculating the compensation for property expropriation; MEC for Education in Gauteng Province against Rivonia Primary School Governing Body, which clarified the powers to determine school admission policies; and in the 2009 judgment of S against Dube, she found out that now Chief Justice Mogoeng should have recused himself from a high court case where Judge Mogoeng’s wife represented the state.
Justice Leona Theron
Justice Theron has been a Constitutional Court magistrate since 2017. Like Justice Mhlantla, she has not held a senior judicial leadership position and is likely an outsider at this stage. However, she has been a rising star in the judiciary for some time and has always been extensively interviewed before the Judicial Service Commission. She is also an experienced judge, having first been appointed to the superior court in 1999 until her appointment as a magistrate of the Supreme Court of Appeals in 2010. Judge Theron also appears to be a tech savvy as during the Covid-19 pandemic, when the Constitutional Court went to virtual hearings, assumed the role of coordinator.
Notable judgments written by Judge Theron include Beadica 231 CC vs. Oregon Trust Trustees, where he harmonized the principle of equity within the Constitution and the common law of contracts; From Gree vs. Webb, which deals with the jurisdiction of the Juvenile Court in adoption cases; S against Nkomo, where he disagreed with more experienced colleagues in the Supreme Court of Appeals on the imposition of the minimum sentence prescribed for rape and kidnapping; Y Gumede against the President of the Republic of South Africa, where he declared unconstitutional the provisions relating to customary marriages celebrated before 2000.
Justice Mahube Molemela
While the current vacancy of Chief Justice may come a little before Justice Molemela, she is certainly a name to follow and a rising star in the South African judiciary, who seems to be building all the credentials to be regarded as a possible Chief Justice in the future. She is not currently a judge of the Constitutional Court (she was a candidate for the postponed interviews of the JSC in April 2020), and she has only been a magistrate of the Supreme Court of Appeals since 2018. On the other hand, she has significant leadership experience, having been the presiding judge of the Superior Court of the Free State between 2015 and 2018, has acted as a judge of the Constitutional Court and of the Court of Appeal of Competition, and has served as a judge of the Labor Appeal Court. In addition, she has a leadership profile as rector of the Central University of Technology and has previously served as president of the council of the University of the Free State.
Judge Molemela has written important judgments in S in Pilane, regarding the correct administration of the oath to the witnesses; Salzmann vs. S, on the applicable legal framework for an appeal after the introduction of the Law of Superior Courts; Tsoaeli v S, where he set aside the convictions of community health activists on the grounds that the law criminalizing their protest was too broad; and in Harrielall v University of KwaZulu-Natal, its dissenting judgment on the order for costs was later claimed on appeal by the Constitutional Court. DM
