/ 17 August 2011

Zuma’s worst decision?

Mogoeng Mogoeng is a terrible choice of chief justice, writes <b>Verashni Pillay</b>.

Jacob Zuma’s decision to nominate Justice Mogoeng Mogoeng as the head of the South African judiciary is one of the most questionable decisions he has made as president.

Of all the mooted candidates, Zuma seemed to choose the one with the least experience and the most questions hanging over his head.

As constitutional law expert Pierre de Vos put it: “It is as if President Zuma, acting like a spoilt child who could not get his way with the extension of the term of office of the outgoing chief justice because he relied on a clearly unconstitutional provision to do so, is now trying to get back at critics by indicating a wish to appoint one of the less suitable candidates to that post.”

At least the former chief justice, Sandile Ngcobo, while also a controversial choice, was a more than able jurist and legal mind.

In fact, Ngcobo, whose appointment Zuma was criticised for making over Dikgang Moseneke — the obvious candidate for the job — went on to work on a series of much-need and lauded judicial reforms.

Ngcobo was in the process of helping amend the Constitution 17th Amendment and Superior Courts bills and setting up the Office of the Chief Justice (OCJ), all to further preserve judicial independence. He was also working on a register of interests for judges and overseeing amendments to the Judicial Service Commission Act, which sets up new procedures and structures for disciplining judges, Business Day reported.

An impressive list.

Mogoeng, as head of the task team on the OCJ and chairperson of caseflow management committee — with 10 years before him on the bench — is being pushed by Zuma as the best candidate to continue these reforms. Yet he lacks experience on the constitutional bench and has been criticised for a lack of intellectual rigour.

Analyst Eusebius McKaiser argues that Mogoeng has limited academic or judicial output on constitutional matters, is not probing enough of lawyers before him, and has a dearth of published work.

“By contrast, more respected jurists, such as some of his Constitutional Court colleagues, have literally hundreds of reported judgments,” writes McKaiser.

And yet this is the man Zuma chose to appoint over the most obvious candidate for the job: Moseneke. It is a replay of August 2009 when Ngcobo was appointed over Moseneke, despite having only two years left on the job and Moseneke being widely regarded as “one of the country’s brightest legal minds and an internationally renowned jurist”, as Sunday Times editor Mondli Makhanya put it. This led to Zuma clumsily trying to extend Ngcobo’s term of office — arguably illegally. It was a terrible move: it robbed the country of the best person for the job, and it set up Ngcobo, a good man and leader, for failure.

That birthday party
So why did Zuma overlook Moseneke, both in 2009 and now? Because of some comments he made at his 60th birthday party in 2008.

They must have been pretty strong comments, I imagine you thinking. Well, no. This is what he said: “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 want; it is about what is good for our people,” he said.

It opened the floodgates of the ANC’s scorn and criticism, with the judiciary being branded as “counter-revolutionaries”.

Pretty puzzling, right? Not when you realise that the ANC-led government may be the most powerful brother of the three arms of government: Parliament, the judiciary and executive, but it’s also the most sensitive. It certainly doesn’t want the over-achieving, upstart judiciary stealing its limelight or daring to cast aspersions on the real people in charge: the ANC.

Toeing the line
Ngcobo, instead, carefully toed the line in respecting the ANC and the government it ran. At the recent Access to Justice conference in Sandton, as well as in his final judgment, Ngcobo was at pains to point out that the judiciary must respect the executive, and not tramp on the toes of big brother.

Mogoeng will no doubt tread the same careful line, to keep his favour with Zuma and the executive intact. It’s a position that puts deep pressure on the hallowed independence of the judiciary.

But that’s not the most worrying thing about Mogoeng, believe it or not. De Vos and McKaiser recall a series of judgments made by our soon-to-be chief justice:

  • Glenister vs the President: Mogoeng disagreed with the majority ruling that the Hawks are inadequately safeguarded against political influence.
  • Le Roux vs Dey: Mogoeng was the only judge on the bench who said that one could successfully sue for defamation if depicted as gay. More concerning, he refused to give reason for his dissent, flying in the face of the accountability and transparency expected of a judge.
  • McBride vs the Citizen: he dissented with the judgment that the Citizen was allowed to refer to former Ekurhuleni metro police chief Robert McBride as a murderer. Referencing the granting of amnesty by the Truth and Reconciliation Commission to those who had committed gross violations of human rights during the apartheid years, “Justice Mogoeng stated that it was impermissible to use truthful facts to insult, demonise and run down the dignity of self-confessed human rights violators,” De Vos said.
  • S vs Dube: In the most alarming incident, Mogoeng failed to recuse himself as judge president from a case where his wife was the prosecutor, leading the SCA to refer the case back and lambaste the incident.

The narrow racial obsession of the most ardent defenders of our government on Twitter and elsewhere has been ruined by this decision. Zuma chose one man over another more qualified and capable man, not because of transformational imperatives, but because of political expediency.

  • You can read Verashni’s column every week here, and follow her on Twitter here.

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.