An opportunity for women missed

One of President Jacob Zuma’s preferences for the four vacant seats on the Constitutional Court, North West Judge President Mogoeng wa Mogoeng, refused to comment this week on a DA complaint that he is unfit for the position because of an incident during the time he served on the Truth and Reconciliation Commission’s amnesty committee.

DA MP Natasha Michael could not provide precise details, but said that while a member of the amnesty committee, Mogoeng failed to recuse himself in a case in which his wife was the prosecutor.

The DA has called for KwaZulu-Natal High Court judge Leona Theron to replace Mogoeng on Zuma’s list of proposed Constitutional Court judges.

Mogoeng’s PA, who refused to give her name, said on Thursday: ”Judge Mogoeng told me to say ‘no comment’.”

A further objection is that although Mogoeng has written judgments with constitutional ramifications, he is largely a labour law specialist who previously served in the Labour Court.

But even in this area, says Unisa law professor Shadrack Gutto, Labour Court Judge President Ray Zondo — also a candidate for a Constitutional Court seat — has stronger credentials.

Judicial Service Commission (JSC) member and leading advocate Dumisa Ntsebeza defended Mogoeng’s proposed appointment, saying that Chief Justice Sandile Ngcobo might have influenced the decision. Zuma is known to have consulted Ngcobo.

Ngcobo’s passion for labour law — he acted as both Labour Court and Labour Appeal Court head for many years — might have influenced him.

But a source close to the Constitutional Court, who spoke on condition of anonymity, said that Mogoeng’s inexperience could create a perception that he is open to influence.

Most junior judges sought guidance from senior judges as a matter of course, the source said.

The DA’s objection to Mogoeng in part reflects broader criticism that the president’s list does not reflect a commitment to gender equality.

Only one judge on Zuma’s list of four, Sisi Khampepe, is a woman. Several commentators said that at least two women should replace outgoing judges Yvonne Mokgoro and Kate O’Regan.

A female judge of the Supreme Court of Appeal (SCA), Mandisa Maya, had been strongly tipped for the Constitutional Court, but now looks set for a judge president’s position, possibly in her native Eastern Cape.

Eastern Cape Judge President Cyril Somyalo retires next May.

Theron is heavily tipped as the next judge president of KwaZulu-Natal when the incumbent, Vuka Tshabalala, retires next April.

Ntsebeza said that Zuma’s decision not to appoint Maya could have been motivated by the need to keep her at the SCA, so as not to ”deplete [the] SCA of good people”.

But he did not dismiss the possibility that she could be heading for a judge president’s position.

Ntsebeza said he does not see Zuma changing his mind unless there is ”strong lobbying” from gender groups.

”An opportunity missed” was how Gutto described Zuma’s failure to appoint at least two women to South Africa’s highest court.
Gutto said there were legitimate expectations that the president would appoint ”two, if not three” females. He believes there is sufficient competence to make such appointments.

It would be ”understandable” if Zuma intended to appoint both Maya and Theron to other leadership positions in the judiciary. There was a dearth of female leaders, with Western Cape Deputy Judge President Jeanette Traverso being the most senior woman judge.

Although no strong objection was raised to Zuma’s preference for Eastern Cape High Court Judge Johan Froneman, there are some misgivings about Justice Minister Jeff Radebe’s open liking for him at the recent JSC hearings.

Froneman’s legal approach has been described as ”revolutionary” and he told the hearings that he had caught the ”vibe” of the Constitution before others. Ntsebeza lauded him as a progressive judge whom Zuma was certain to confirm.

Froneman, who has served on the Labour Court as deputy judge president and has been an acting judge in the SCA, is celebrated for a landmark judgment allowing social-grant recipients to pursue a class action suit against the Eastern Cape government.

He first attracted admiring attention for his 1994 judgment in the Qozeleni case, later relied on by the new Constitutional Court under Arthur Chaskalson.

In that ruling, handed down while the Constitution was still being negotiated, he used the Ciskei’s Bill of Rights to reinforce the principle of equality before the law.

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