While opposition to President Jacob Zuma’s nomination of the Constitutional Court’s Judge Mogoeng Mogoeng as chief justice mounts, questions have been raised as to whether the Judicial Service Commission (JSC) consulted on the decision as thoroughly as it could have.
The JSC voted in favour of Zuma’s nomination of Mogoeng’s on Sunday following a two-day interview with the judge.
Following the JSC’s approval of Zuma’s nomination, Sonke Gender Justice Network spokesperson Mbuyiselo Botha said the group was consulting lawyers to see if it could take further action to oppose Mogoeng’s nomination.
Botha said a meeting between human rights advocacy group Section 27, the Treatment Action Campaign, and Sonke to discuss possible legal action was scheduled for Tuesday. Botha said that even though he could not speak for all the groups, Sonke was hoping to oppose Mogoeng’s appointment as chief justice.
Constitutional law expert Pierre De Vos told the Mail & Guardian the only possible legal strategy that he could foresee that would challenge the appointment of Mogoeng was an argument that the JSC had not engaged in any “real consultation”.
The president has the power to appoint the chief justice he deems fit, after consulting the JSC and heads of the opposition parties represented in the National Assembly, according to Section 174 of the Constitution.
Such a consultation was meant to be an exchange of ideas, said De Vos. But, he said, it was not clear there had been an exchange of ideas between the president and the JSC.
He added that the decision by the JSC two weeks ago not to discuss other candidates might indicate that it had interpreted the constitutional expectation of consultation too narrowly.
He said the JSC may have misconstrued its powers.
The JSC had been “conservative in the interpretation of its constitutional mandate” wrote Helen Zille in her letter to the president on Monday.
Zille wrote the JSC had merely looked at whether Mogoeng filled the basic constitutional requirements of a chief justice but had not examined whether “the position should be filled by an exceptional candidate” as opposed to one who merely met the requirements. It also didn’t examine Mogoeng in light of “other possible nominees”.
The DA also criticised Zuma’s choice of chief justice and said it didn’t believe Mogoeng enjoyed the support of his colleagues at the Constitutional Court, “both intellectually and collegially” and had failed to display “unwavering adherence and commitment to the Constitution”.
The DA argued that Mogoeng does not “possess the outstanding legal skills required of a chief justice”.
As the Constitution ultimately gives the president the power to appoint the chief justice, it is widely expected that Mogoeng will get the job, despite any objections.
De Vos said he assumed the president would want to complete the process quickly and appoint Mogoeng fairly soon.
Mac Maharaj, the spokesperson for the presidency, said the president would only announce his next move once he had finished consulting the JSC and leaders of opposition parties.
Maharaj could not confirm if all opposition parties had submitted their responses on the nomination to Zuma.
The JSC would send the president its official response by late Monday afternoon, a source told the M&G.
Mogoeng has faced fierce opposition from civil society and legal groups who questioned his controversial rulings, young age and short term of two years on the Constitutional Court bench.
Rulings that raised the ire of gender activists included Mogoeng suspending a man’s two year sentence for attempting to rape his wife, saying he had used “minimum force” and he had been “aroused” by the women who had previously been his lover.
Mogoeng also halved the prison sentence of a man who had raped his wife, arguing that it wasn’t rape in the context of marriage.
His failure to recuse himself when he ruled on a case in which his wife was a prosecutor also raised eyebrows.
During his televised interview with the JSC and Mogoeng shared many tense exchanges with Deputy Chief Justice Dikgang Moseneke, although he later apologised saying “There is not a single human being who never loses his or her temper”.
President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new chief justice. For more news on the controversy surrounding the proposed appointment visit our special report.
