In an incendiary address that was clearly aimed at the current imbroglio around the pressing need to transform the judiciary in South Africa, Mogoeng suggested there were attempts to “delegitimise the judicial appointments authority [the commission]", which was “the surest way to destroy a country”.
Mogoeng was speaking at the Cape Town International Convention Centre on Monday.
Mogoeng warned against people who appeared intent to “seek to rubbish a constitutional structure without which the judiciary cannot exist”. He added that the commission did not “play games” despite the picture created recently that it would “recklessly subject the South African public to a judicial officer wfho does not have what it takes”.
Last week was a tough one for Mogoeng and the commission that he chairs, as it sat in Cape Town to interview prospective judges for various courts. The week had begun with an internal discussion document on transformation penned by one of its commissioners, being leaked to the media and made public.
In the report, Smuts – who resigned from the commission at the end of its sitting last Friday – suggested that the commission was biased against appointing white men and only did so in “exceptional circumstances”.
Mogoeng said that criticism rose when “lobbyists” were unhappy when the commission’s decisions were “a different outcome” from what they wanted.
He criticised Smuts for making the document public: “It was not leaked, he circulated it to the media, let's tell the truth,” said Mogoeng.
The report has drawn wide-ranging responses, both from individuals being interviewed for positions last week and the broader public.
One former commission member told the Mail & Guardian that the report had caused an “unfortunate” shift in the discussion around transformation: “It's not so much that the commission does not appoint white males, but that it appoints white males who are compliant and do not rule against government. It is the independent-minded, progressive white male judges who are not fearful of ruling against government who appear un-appointable by this commission.”
Mogoeng, a lay preacher at the Winners Chapel International, appeared in full pontification mode at the opening. During a blustery, animated address which one legal practitioner present described as “inappropriate – to put it mildly”, Mogoeng stated that “whether or not there is a need for transformation does not require a debate” before adding that “transformation does not even have to be defined”.
Several legal practitioners felt this was an unfortunate, reductionist approach at a time when the commission itself has been criticised for not fully articulating what it means by “transformation”, and appearing not to take a more nuanced view in that meaning to include the constitutional values and progressiveness of judges.
Judge Denis Davis, who was interviewed and reappointed to the Competition Appeals Court last week had warned that the transformation debate was in danger of being reduced to the “binary” of competent white judicial candidates versus incompetent black candidates – which did a disservice to the many skilled black legal practitioners in the country.
A lawyer at a public interest law firm said that the commission had to pursue transformation on two fronts: “To accurately reflect the demographics of the country with more black judges and certainly more female judges, firstly. Secondly, the commission needs to articulate a deeper vision of where the Constitution is taking South Africa when considering judges for appointment. Ours is a transformative Constitution and the branch of government chiefly responsible for saying what the Constitution means is the judiciary – the commission need to account to itself in this regard.”
The lawyer added that the judiciary was compelled to act “transparently and reasonably” in this regard.