/ 9 September 2011

Mogoeng: Underwhelming exchange

Before President Jacob Zuma's sole nominee for chief justice was interviewed by the JSC, we argued that Mogoeng Mogoeng was unsuited to the job.

Before President Jacob Zuma’s sole nominee for chief justice was interviewed by the Judicial Service Commission (JSC), this newspaper argued that Mogoeng Mogoeng was unsuited to the job.

His judgements, we felt, too often privileged the testimony and life circumstances of violent men over the experiences of the women and children who had suffered at their hands.

His dissent in one Constitutional Court case, Le Roux vs Dey, suggested homophobia, while another, Citizen vs McBride, was seriously out of step with our free-speech law. And his broad judicial record simply did not stand comparison with other potential candidates.

Nothing we saw during his weekend-long televised exchange with the JSC has changed our view.

To be sure, Mogoeng offered a few bland assurances about the rights of women and gay people, but a largely supine JSC did little press him for real substance. Astonishingly, he seemed happy to cite his own lack of diligence and legal rigour as an excuse for self-evidently anti-constitutional judgments. In one rape case, for example, he claimed he simply wasn’t aware of the relevant post-1994 precedent and apparently didn’t do enough research to find it, so he relied on an apartheid-era judgment instead. That this is a failure of a most basic kind for a judge — not knowing the law — seemed not to trouble him or his interlocutors (with the honourable exception of Dikgang Moseneke) at all.

As for his lapse of judicial ethics in dissenting without reasons in Le Roux vs Dey, it wasn’t because he wished to disguise his belief that, it is indeed defamatory to call someone a homosexual. Rather, he simply hadn’t had time to apply his mind. That is a remarkable admission to make about his attitude to the awesome responsibility that attaches to his job.

If all that wasn’t enough, he suggested that press scrutiny of his record and critical cartoons impugned his right to dignity and hinted that, such coverage ought to be illegal.

Mogoeng has been praised for his willingness to answer tough questions in public, but that is a low bar indeed for a chief justice to surmount, even if he has been elected by God. We, like everyone else, will hope for the best from his stewardship of the courts, but he has real work to do if he is to build credibility on core constitutional and professional issues.

As for the JSC, fresh litigation may be counterproductive, but the legal profession, political parties, civil society and ordinary South Africans must insist that it is held to account.

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.