Saturday September 3 is judgment day — not for the presidential nominee for chief justice, Mogoeng Mogoeng, but for the Judicial Service Commission (JSC). Battered by the demands of the hearings on the ethical conduct of Western Cape Judge President John Hlophe — twice — which they fudged and botched — twice — the JSC now faces an even sterner test of its character and politics, and, therefore, of its value to our constitutional democracy.
In its early days the JSC would meet in the ground-floor conference room of the Victorian Vineyard Hotel in Newlands, Cape Town — as tranquil and verdant a setting as it was possible to imagine. With large glass windows, the physical transparency of the location mirrored the procedural transparency the JSC is meant to inject into South Africa’s judicial governance.
On Saturday, however, the venue will be the sleek modernity of the Cape Town International Conference Centre — though it ought to be the Baxter Theatre: for this is the hottest ticket in town (apart, that is, from the ANC’s disciplinary committee hearing — and that even more embattled body prefers, alas, to sit in private).
Ranged against Mogoeng is a formidable band of representatives of the legal profession and the human-rights community, who raise formidable and serious issues of objection to the presidential nominee.
Those objections are now well known. What is not known is how the JSC will respond to the objections and how it will perform its consultation role.
The Constitution is clear that the JSC, as well as party leaders, must be consulted by the president before he makes the appointment. One organisation, Freedom Under Law, has elaborated on the opinion offered to the government at the request of my research unit at the University of Cape Town, the Democratic Governance and Rights Unit. It says that although the Constitution does not define “consultation” it “must entail the good-faith exchange of views, which must be taken seriously”.
The Constitutional Court, in developing its doctrine of “meaningful engagement” in cases of socioeconomic rights, has described consultation as being “the free expression of views and the willingness to take those views into account” and, elsewhere, that “consultation cannot be a mere formal process. It has to be a genuine and effective engagement of minds between the consulting and the consulted parties.”
‘Leap of logic’
From these starting points comes the following leap of logic: for the JSC to do its end of the consultation it needs to understand the thinking of the president. I understand that the resumés of more than one potential nominee were sought and received by the presidency. So, clearly, he did — as you would expect — consider other options before deciding Mogoeng was the man for the job.
The JSC needs to know how, therefore, and on what basis the president arrived at his decision — without that information there cannot be a genuine and effective engagement of the collective mind of the JSC.
How will we know if it has done its job properly? This is its greatest problem. The JSC’s practice is to conduct its interviews in the open but then to close the doors to the public and to the media when it turns to its deliberations and decision-making. A candidate for judicial office is interviewed in public but the reasoning behind a decision to choose A over B, or to offer a view for or against a presidential nomination for chief justice, is secret.
There is a latent dilemma — potentially a fatal flaw on an occasion such as this — within the JSC’s institutional make-up: arguably, its legitimacy is undermined by its preferred practice.
This is not an easy issue. It is understandable that when, for example, an existing member of the judiciary comes up for promotion to a higher court — and there is a good reason for not appointing him or her — the good reason should not be ventilated in public lest it undermine public confidence in the authority of that particular judge when he or she returns, unpromoted, to their usual seat.
In addition, secrecy may encourage candour from the politician members of the JSC, who would probably be less likely to do anything other than follow the party line if the deliberations were open.
On the other hand, as Saturday’s case illustrates, not knowing the reasoning of the JSC will make it very hard for the legal fraternity — divided as it apparently is against the nomination — to accept that the JSC has applied its mind properly to its task.
Yay or nay
The further difficulty is that when the JSC reaches its decisions it is a jury rather than a judge. The members can cast their vote as a yay or a nay and there is no individual or collective requirement to provide reasons — at least about a decision for or against a candidate.
Saturday’s matter is more subtle, however, because of the argument about whether the president has properly considered other options and because of uncertainty over the basis on which he reached his conclusion that Mogoeng was fit and proper to assume such high office.
To perform its role properly the JSC needs to exercise its mind seriously and to offer a view. It cannot — and should not — merely rubber-stamp the president’s decision; whether it agrees or disagrees with the decision, it must say so and must provide its own reasons. Surely if the JSC thinks there are better people to fill such an important office at such a crucial time in the history of the judiciary, it can and should say so.
This will place unprecedented demands on its political and institutional capacity, and on its chairman, Deputy Chief Justice Dikgang Moseneke. The ANC members of the JSC will also be under pressure — can they discern their constitutional responsibility and elevate it over their duties as disciplined members of the ruling party?
Two weeks ago the JSC decided, apparently by a majority, that it was not entitled to consider other possible nominees and that it could only look at the president’s nomination in isolation. Though the arguments are finely balanced, this decision could, itself, be legally challenged.
What is even more likely is that it will be subjected to further legal scrutiny unless the JSC is able to satisfy the watching public that it has paid full attention to the submissions that have been made; that it has put to Mogoeng the significant questions that have been raised about his suitability in questions that are sufficiently probing and forceful; and that when deliberating the JSC has enough information from the presidency about the reasons for the president’s choice – and that the JSC can adequately understand this choice and, if it wishes, contradict it when offering a view in response.
It is not Mogoeng alone who will be publicly examined on Saturday. Unless the JSC passes its own test, neither it, nor the decision it reaches, nor the new chief justice, will be able to command easily the necessary levels of public and professional respect that the office deserves.
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.
