Ours is a “cruel, crazy, beautiful world” as that Zoulou Blanc, Johnny Clegg sang — a bewilderingly diverse South Africa where the air is filled as much with the political demagogue’s “sound and fury signifying nothing” as it is with the bracing poeticism of ordinary people and their attempts to flesh out a living democracy.
Many of these attempts — to gain access to rights such as water and housing, to be free to marry whomever one fancies or to speak truth to power — find articulation in the Constitutional Court.
The highest court in the land, as exiting Chief Justice Sandile Ngcobo noted in his interview for a position on that Bench in 1999, “is the guardian of our democracy”.
As such, it requires a singular leader — as it has had. A jurist of supreme intellect and a strong hand; someone to inspire the courts and ensure that the broader judiciary remains on an even, stable keel; someone to defend and entrench the separation of powers. A progressive, a modernist, a politically independent jurist with a deep empathy for the people — largely marginalised and poor and often brutalised by both the country’s violent past and its tremulous present — who depend on the Constitutional Court. Integrity and impartiality are vital too.
Former chief justice Pius Langa noted that “the Constitution highlights the values of equality, human dignity, freedom. We speak of the rule of law. It speaks of sovereignty of the Constitution itself, so you want your judges to have that kind of ethic and, when they perform their functions, this is something which should shine through.”
For many who have observed the court in action and have pored over judgments written by the members of its Bench there is a constitutional incandescence shining through the green robes of several of them. For others, that light is much dimmer.
One of the brightest is undoubtedly Deputy Chief Justice Dikgang Moseneke, who is widely acclaimed in the legal fraternity for ticking all the boxes we mention and then some. Yet, there appears to be almost a national resignation to the fact that he will not get the job: that his independence, his political history as a member of the Pan Africanist Congress and the remarks made at a birthday party in 2008 stand in his way.
But there is nothing improper about any of these. Even his remarks point to being wedded to the Constitution: “I chose this job very carefully. I have another 10 to 12 years on the Bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates [at the ANC 2007 national conference in Polokwane] want; it is about what is good for our people.”
We hold no brief for any of the candidates that Ngcobo and the rest of the Judicial Service Commission will interview in the coming days. But our democracy is too fragile, the Constitutional Court too important, for South Africa to be saddled with a political appointee or someone installed for obscure reasons because decision-makers — and the executive — are too uncomfortable with intelligence and independence.
South Africans deserve a rigorous examination of all the candidates and substantial reasons why Ngcobo’s successor was chosen. Democracy demands it.
Lesson in accountability
It’s not part of our culture in South Africa to resign when we do something wrong, despite us extolling the virtues of accountability and transparency. We tend to dig in our heels and hang in there by the most threadbare of threads.
But something new happened this week — acting editor of the Sowetan Len Maseko stepped down, accepting responsibility for Eric Miyeni’s hate speech in a column about City Press editor Ferial Haffajee, even though Maseko was on leave when the column was published.
Miyeni spewed vitriol and invoked images of necklacing, which is a shameful chapter of our traumatic apartheid past. He expected racial solidarity from the public and the marginalisation of Haffajee, who is just a newspaper editor doing her job — writing stories about our infamous Julius Malema and corruption.
However, never mind about Miyeni; it’s a good thing his column has been canned. But what about all those checks and balances we have in newsÂpapers — sub-editors, proofreaders, acting editors and so forth. Are they asleep? This is not the first time this has happened. When David Bullard, Jon Qwelane and Kuli Roberts got carried away in their columns with some vile racial and sexist stereotyping, the alarm bells should have been ringing.
This newspaper will always support the freedom of speech enshrined in the Constitution. It will also always condemn hate speech, racism and, of course, necklacing.
But our industry has to start to be more reflective and take on board Âconcerns about credibility and accountability.
President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new Chief Justice. For more news on the controversy surrounding the appointment click here.
