The maelstrom unleashed by the announcement by President Jacob Zuma that Justice Mogoeng wa Mogoeng was his choice for chief justice has not been experienced in this country since the National Party succeeded in installing their man, LC Steyn, as chief justice about 50 years ago.
Even with South Africa’s previous history of government appointments designed to promote the interests of the executive, the 1996 Constitution empowered the president to appoint the chief justice — after consultation with the Judicial Service Commission (JSC) and the leaders of minority parties in Parliament. Hence, the appointment of a person whose political views and legal philosophy are congruent with those of the ruling party is hardly surprising.
Why, then, the fuss? From the outpouring of opinions about Mogoeng, two important themes emerge that justify the debate about the merit of this appointment. First, though, let’s dispense with the criticisms that have little, if any, merit.
Relative youth (Mogoeng is 50) is hardly an obstacle if the candidate is deserving on criteria relevant to judicial leadership. Similarly, the absence of significant previous judicial leadership was not a problem in the appointments of chief justices Ismail Mohamed or Arthur Chaskalson. The objections raised about Mogoeng’s religious convictions should have no place in a tolerant democracy, provided that his reading of the Constitution shows fidelity to that text and not to biblical views.
The two most important issues to do with this appointment are whether Mogoeng has, in his 15 years on the Bench, shown a commitment to the transformative vision of the Constitution and whether he has revealed the kind of judgment and jurisprudential skill to lead what is to be the apex court for all legal disputes, if the present constitutional amendment passes through Parliament.
To date, Mogoeng has written relatively few judgments. Thus it is difficult to discern a coherent jurisprudential philosophy. Other commentators have noted that his dissent in the McBride case showed adherence to a very traditional set of moral values and a weak commitment to the key constitutional value of freedom of expression. In Le Roux vs Dey, Mogoeng, alone among the 11 justices on the Constitutional Court, held that it is defamatory to call someone gay.
Uniquely in South African judicial history, the judge offered no reasons for this approach, which runs counter to our constitutional values. Equally disturbing is that, in State vs Mathibe, Mogoeng, then a High Court judge, reduced a sentence of two years imposed on a man who had been convicted of assault for tying his “girlfriend” to the rear bumper of his car and then driving the vehicle on a gravel road at high speed. A mitigating factor for the judge was that the woman had provoked the convicted man.
So, the answer to the first question appears to be that a decade of Mogoeng jurisprudence is likely to be socially conservative, moralistic and traditional. This is unfortunate, given the Constitution’s blueprint for a society that transcends our historic divisions and identity essentialism. It needs institutions, including the courts, to ensure that we realise that vision of tolerance and diversity. As the head of the judiciary, a critical instrument in reaching our promised constitutional destination, Mogoeng’s rejection of this vision is certainly troubling and the JSC should question him vigorously in this regard.
As to the second question, of his qualification to lead an apex court on all legal matters, it is, of course, not Mogoeng’s fault that for more than a decade he was judge on a court in the North West where little complex litigation takes place. But his lack of exposure to complex litigation, and his own admission at his 2009 JSC interview of his inexperience in constitutional law, is surely cause for concern when the leadership of the entire judiciary is at stake. Of course, this is tempered by the fact that he sits with 10 other judges — a bench of that size should be relied on to include some of the requisite expertise. That burden does not rest on his shoulders alone.
Legal practitioners know that one of the greatest risks in litigation is that the presiding judge will not have the requisite skill or experience to wrestle with and determine complex disputes, especially those arising from commercial transactions and specialist areas of law such as taxation. The chief justice must deal with these challenges by ensuring judicial training and that courts have adequate resources, such as access to up-to-date research libraries. On this score, a factor in favour of Mogoeng is that he has shown himself willing to organise and take on the burden of administration to support projects such as those arising out of the recent access to justice conference.
If the press reports are correct, then even the president must have had some doubt about the judiciary’s next leader, because, depending on which account you read, Mogoeng was either his third or fourth choice.
That Zuma has now chosen Mogoeng is, of course, his prerogative as president. But that does not mean, as some would now have it, that the balance of the population is not entitled to have their say on such important an office.
For this reason, one can only hope that the JSC hearing will be broadcast on radio and that the JSC will ask Mogoeng about his constitutional philosophy, including gay rights and his attitude to gender, freedom of expression, customary values and judicial deference to the executive. Many applicants for office have been pressed by the JSC about their record under apartheid, so questions about Mogoeng’s period as a prosecutor in Lucas Mangope’s Bophuthatswana would not be out of place.
When all is said and done, it is truly surprising that the party that campaigned under the Freedom Charter and was responsible for a social-democratic Constitution of majestic proportions would appoint a chief justice whose vision appears to be that of the conservation of an ossified set of social and political values rather than the transformation towards an egalitarian society based on social justice. If Mogoeng cannot clarify the questions about his record then it may be concluded that his appointment says more about our present politics, sadly, than it does about our future chief justice.
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.
