That Justice Mogoeng Mogoeng was to be recommended as chief justice by the Judicial Service Commission (JSC) was surely a racing certainty; that damage has been done to this body and the judiciary as a whole is equally certain.
The JSC is mandated to engage with the president on the appointment of a chief justice. Ultimately the president has the power to appoint the chief justice, but this does not mean the commission should act as a rubber stamp and fail to provide him with independent, considered advice about the quality of his nominee. Such advice requires an assessment by the commission of the person best suited to be chief justice.
The televised questioning of Mogoeng, itself a positive step towards openness and transparency, revealed that a good many members of the JSC were cheerleaders for the judge. They seemed to forget their job was to probe all relevant aspects of the nominee to arrive at a fair assessment — a culture of obeisance to presidential authority rather than justification of constitutional principle.
Unfortunately, save for a few exceptions, the commissioners did not appear prepared to test Mogoeng’s answers, even when they were manifestly problematic, such as his reliance on preconstitutional rape judgments when recent precedent dictated that he decide differently. Consequently, the public is entitled to hold the JSC, as a body able to apply a fair and independent mind to the critical business of appointing judges, in very low esteem. There was no sustained debate that could have revealed Mogoeng’s legal philosophy and his take on its key principles, which means far more than the obvious claim that “I will respect women’s and other constitutional rights”.
The interview brought into sharp focus the tensions that bedevil the judiciary. Mogoeng and Deputy Chief Justice Dikgang Moseneke appear to hold very different legal philosophies and thus conceptions of the role of the Constitution in the shaping of a South African democracy. This is important because Moseneke is held in high regard by significant segments of the legal community. It is safe to assume that his approach to the Constitution finds considerable support within the judiciary.
The problem is now exacerbated by the controversy around the appointment of Mogoeng, which has revealed schisms in the legal community and beyond. The National Association of Democratic Lawyers, Cosatu and a number of important women’s organisations have vigorously opposed the appointment — and no amount of lollypop questioning by JSC members is likely to persuade them that the right person was appointed. The best that can be hoped is that the differences between Mogoeng and Moseneke are not so profound they prevent them from working together for the sake of the constitutional good of the country.
A further threat to democracy was the almost visceral objection exhibited by Mogoeng, Minister of Justice Jeff Radebe and Judge President Bernard Ngoepe to the submissions made by civil society. Mogoeng was entitled to be aggrieved by insulting reports regarding his intelligence and ability, which did constitute an assault on his dignity and a totally unacceptable attack on a senior judge. But the trio’s opposition to the role of civil society in objecting to the nomination went much further: it appeared to be directed against any vigorous, principled criticism of judicial performance, the accountability of judges to the citizens of the country, or the appointment process of the JSC.
All these negative features of the process leading to the appointment of the chief justice took place in a context of grave challenges to constitutional democracy and its custodian, the judiciary. Last week Deputy Minister of Correctional Services Ngoako Ramatlhodi, in an article in a daily newspaper, rued the ANC’s decision to agree to the Constitution during the negotiations that led to the creation of our democratic state. In his view the entrenched rights contained in the Constitution protect white privilege and agreeing to them was an ill-advised concession by the ANC.
Although he acknowledged that the Constitution contained transformative possibilities, these had been restricted by a judiciary that, it could be inferred from his article, was bent on the preservation of the socioeconomic status quo. In short, the judiciary and its constitutional jurisprudence is counterrevolutionary.
Because Ramatlhodi provides no examples to support this argument, and because existing jurisprudence promotes the rights of the most vulnerable in the general provision of basic services, it is safe to assume he is more concerned about the judiciary holding the legislature and executive to their constitutional obligations. This is increasingly where the contest is being fought, and hence the challenges facing the judiciary as it adjudicates on other arms of government that want to be free of such legal fetters.
This argument represents a clear danger to South Africa’s constitutional enterprise. There is the added problem of unbridled populism, best represented by some of the politics of the ANC Youth League. This can only be curbed effectively by a reconstituted democratic project that addresses the social question of the marginalisation of millions of young people and the daily affront to their dignity. Rights litigation cannot alone produce a new political project, but a progressive jurisprudence can make a significant contribution to the creation of the conditions for opening the future to millions who at present feel only the oppressive hand of the past.
If the JSC’s Mogoeng interview process is any guide, the government appears to have turned against the very constitutional project that can help curb undemocratic populism. But so long as South African constitutional democracy survives, and notwithstanding Ramatlhodi-type campaigns, the judiciary will be drawn into the struggle. As an institution it may, for the reasons outlined, not be in the best condition to rise to this challenge now. For the sake of constitutional democracy, it is hoped that Mogoeng will provide the necessary bold and courageous leadership and not seek to gut the potential for a reconstructed social-justice project that lies within the Constitution.
Thanks to the failure of the JSC process, the public remains in the dark about Mogoeng’s commitment to this kind of transformative project. Many observers of his interview likened him to Justice Clarence Thomas of the United States Supreme Court. But is it asking too much to hope that he will turn out instead to play a similar role to Earl Warren, who was appointed by Republican president Dwight Eisenhower and became one of the country’s most progressive chief justices?