Mogoeng and Zuma the battle for the court


The Jacob Zuma presidency can at best be described as peculiar. I will not roll out the long list of less than somber decisions that have been taken since the president took office in 2009. In his latest questionable effort Zuma has named Justice Mogoeng Mogoeng As his nominee for the soon to be fully vacant position of Chief Justice (more on that later). To say the legal fraternity has been stunned by the decision is putting it mildly.

The nimination of Justice Mogoeng Mogoeng has stunned many legal experts

The nomination is a stark contrast to the welcoming response that was received by Justice Sandile Ngcobo when he took over the post not so long ago. The decision is strange in that Justice Mogoeng is one of the most junior judges serving on the constitutional court bench, having only been appointed in 2009. There is much to be said for youthful exuberance but when it comes to matters of this nature a little more caution should be the order of the day.

It goes without saying that the constitutional court is the last line of defense in all legal matters in South Africa. It does very little for public confidence if the Chief Justice is viewed amongst his peers as something of a mediocre candidate. At 50 years of age, many commentators have argued that Mogoeng is far too young to head up the court. With former UNISA principal Rev Barney Pityana going as far as to say “I have no hesitation in saying this is a really bad appointment in every respect.”

Although there are legal loopholes and the president’s nominee still needs to be interviewed by the Judicial services commission it is unlikely that the likes of the Nkola Motata’s will be making some sort of a swift coup de grace for the post. Regardless of the outcome now, the appointment has been tainted and will do little to alleviate concerns amongst a less than comfortable media who are already cooking up conspiracy theories about Zuma and his intentions for clean and sober governance.

The departure of Justice Sandile Ngcobo has left a bitter taste in the mouth of the Zuma administration

The judiciary should be impartial and must always be viewed as such. What little trust we gained in them as a result of the decision they took following Sandile Ngcobo saga has all been washed away. As tensions are high about information laws and other bills many people will be concerned that Mogoeng is just another plate in the Zuma amour. It is my belief that perhaps it would not have been a bad contention to nominate a female judge for the position. It is woman’s month after all. But above and beyond that it would refresh the public and take away those old stereotypes of the constitutional court as a rigid institution run formerly by white (and now by black) rigid males. We have very capable experienced judges who are already serving in the court. Names like Justice Bess Nkabinde and Justice Sisi Khampepe spring to mind. If Zuma was indeed looking for a young candidate surely they would fill the criteria as well as Mogoeng-if not better.

Unless a series of dramatic events like Justice Mogoeng declining the nomination or the JSC choosing someone else it is almost certainly a done deal that he will take up the post. And as assumes office he will do well to take caution as opposition parties will be keeping a close eye on his workings. But even if he does do well on the bench and serves for an extended period (as is the assumption) the Zuma administration will get very little credit for any good work that he will do, if for no other reason than the circumstances around which his nomination has come.

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Comments
2 Responses to “Mogoeng and Zuma the battle for the court”
  1. SihleMthembu says:

    You are quite correct was appointed in 2009 but if you read carefully you would have understood that if a fresh approach was the reason behind the Mogoeng nomination, I was simply pointing out that Justice Sisi Khampepe would have been as reasonable a nomination as Mogoeng.

    Secondly when looking at the appointments of Chaskalson and Langa one cannot omit the context under which they were nominated, the judiciary in South Africa was still undergoing reform and transformation. Their lack of experience was viewed as a necessary evil if we were
    Going to create a balanced, fair and accountable judiciary. Also I do not know what you mean when you say that they were great. The judiciary is not a place for cementing legacy or individual glory. It is a place that should be viewed beyond that. But I also agree his record leaves much to be desired and in an era where there are so many tension around race, sexuality and so forth we cannot afford to have a judiciary that is questionable.

  2. Kwadwo says:

    A point of correction: Justice Sisi Khampepe was appointed to the CC in 2009 as well, and has in fact got less judicial experience than Mogoeng Mogoeng (Khampepe became a judge only in 2000/1, whereas Mogoeng has been a judge since 1997). Furthermore, greats like Chaskalson and Langa had absolutely no judicial (let alone constitutional) experience when they were appointed, and so the argument of lack of experience is a failed one.

    What’s more concerning, and why I am inclined to think too that the Mogoeng nomination is a poor decision, is that Mogoeng has had a number of flops as a judge, both on the CC and as judge president of the North West High Court. In the NWHC he failed to recuse himself from a trial in which his wife appeared for the State, indicating that his sence of judicial morality may be compromised. Furthermore, in the recent case of Le Roux v Dey, he hinted at being homophobic by being the only judge of the view that one can be defamed by being called gay (even when sexual orientation is something that carries constitutional protection). And he also failed to provide his reasons for disagreeing with the majority, which goes against the culture of justification, even when in the minority, that judges since time immemorial are supposed to embody.

    Another point is that he has only ever had 10 of his judgments published, whereas his colleagues on the CC like Edwin Cameron have had over 100.

    My assessment is that Mogoeng J is not fit and proper for the job of heading the Judiciary, and I would rather see someone like Khampepe take on the job.

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