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 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 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.