More fallout over Zuma’s nomination

President Jacob Zuma’s nomination of Justice Mogoeng Mogoeng as the next chief justice continued to reverberate in political and legal circles yesterday as a torrent of opposition and a trickle of support were expressed for his candidacy. ID leader Patricia de Lille, IFP leader Mangosuthu Buthelezi, Azapo and the University of Pretoria’s Centre for Human Rights added their voices to those opposing Mogoeng’s nomination, while the Black Lawyers’ Association defended it. Meanwhile, a potential Constitutional Court challenge to the process Zuma has followed thus far looms large over the Union Buildings. The Institute for Accountability in Southern Africa has said the organisation reserved its right to approach the Constitutional Court “directly and urgently” if Zuma failed to “regularise” the process by withdrawing his nomination of Mogoeng. Presidential spokesman Mac Maharaj responded by saying “it’s a free country”, and that the institute was “free to go to the courts and challenge the president’s actions on the basis of constitutionality”. He did, however, suggest that the institute should consult senior counsel before making such a move. De Lille said she would withhold her party’s support for Mogoeng “based on due consideration of maintaining the integrity (and independence) of the judiciary”. She also questioned Mogoeng’s apparent lack of experience in dealing with constitutional issues and called for the Judicial Service Commission (JSC) to hold a public interview. The DA echoed this call, saying the JSC should hold an “open interview” to assess Mogoeng’s “suitability for the position” in the same way that all other judicial appointments were handled. “A number of interested parties as well as members of the legal fraternity have expressed concerns at the president’s nomination of Justice Mogoeng. It is therefore appropriate that he is given an opportunity to address these concerns in an open hearing,” party leader Helen Zille said yesterday. She also called on Zuma to provide “the information he considered, as well as the reasons for nominating Justice Mogoeng ahead of other potential candidates”. Buthelezi has already replied to Zuma’s call for input from political parties, complaining in a letter to the president that he found it “incomprehensible” that leaders of political parties were being asked “ex-post facto” to express their views on the matter. “Rather than a consultation, this is being approached as a mere formality, which is all the more concerning considering the background to this appointment. This has placed us as leaders in the invidious position of consulting through the media, for our views on Mr Justice Mogoeng Mogoeng will now be publicly debated. Regardless of what our views may be, I do not see how they could change the outcome of his appointment at this stage,” the veteran party leader told the president. Azapo strongly criticised Zuma’s choice and has advocated for Justice Dikgang Moseneke to be appointed instead. The party warned that Zuma’s failure to appoint Moseneke would have the “unintended consequence ... of fostering a culture where merit seems to be shunned in favour of party political membership and loyalty”. The Centre for Human Rights said the basis for Mogoeng’s nomination was “startlingly unclear”. “There is in our view a lack of evidence to assure South Africans that the best possible candidate has been nominated to serve as our chief justice – a position he will hold, if appointed, for the next decade,” said the centre’s Professor Frans Viljoen. Viljoen also questioned Zuma’s commitment to gender equality, noting that he appointed only one female jurist to the constitutional bench when he filled four vacancies in 2009, leaving only two women on an 11-member bench. He also criticised Zuma for failing to articulate his reasons for overlooking “more experienced” judges, including Moseneke, and rubbished Zuma’s assertion that Mogoeng “has demonstrated his expertise and keen interest in the transformation of the judiciary”. “Even in these areas, the actual evidence of his role in judicial transformation is limited,” said Viljoen. “If he is appointed, it will be up to Justice Mogoeng to dispel any perception or suggestion that his unexpected appointment signals an attempt at executive corrosion of the independence of the judiciary,” he added. Viljoen compared Mogoeng’s nomination to that of then deputy chief justice Oliver Schreiner, who was overlooked in 1957 and again in 1959 “in favour of more junior candidates closely aligned to the government of the day”. But BLA spokesman Nano Matlala said Mogoeng’s youth – he is 50 – would ensure that he served at least a decade at the helm of the country’s judiciary, which would “provide some stability”. Matlala represented the BLA in the recent Constitutional Court challenge to Zuma’s failed attempt to extend the term of office of former chief justice Sandile Ngcobo. Matlala explained that the court, “in deciding the merits of the case”, found that “all Constitutional Court judges are equal”. He said opponents of Mogoeng’s nomination could therefore not cite his relative lack of experience as a reason for opposing his candidacy. However, the judgment was responding to the president’s attempt to extend only the terms of office of the chief justice and the president of the Supreme Court of Appeal. The judges found that in this context all the judges should be treated equally and that the conditions of employment of one could not be changed while leaving those of the other judges as they were. Matlala maintained last night that the issue was about “equality” as a general principle, and that this principle also applied in the context of a judicial appointment. “I am talking as a lawyer, not a politician or an interest group. My view is based on the law and what the Constitutional Court said,” Matlala concluded. President Jacob Zuma’s nomination of Justice Mogoeng Mogoeng as the next chief justice continued to reverberate in political and legal circles yesterday as a torrent of opposition and a trickle of support were expressed for his candidacy.