The Judicial Service Commission (JSC) may have “misconstrued” its powers in approving Mogoeng Mogoeng as Chief Justice nominee, an expert said on Monday.
Constitutional law professor Pierre de Vos said the JSC's decision not to entertain any other people for the top job two weeks ago could have caused the body to be pushed “into a legal corner”.
“The legal challenge would be the decision taken by JSC two weeks ago that it was not permissible to entertain any other possible people for the top job,” he said.
“There is a strong argument that the JSC misconstrued its powers. They interpreted it quite extraordinarily.”
De Vos said it was clear during the weekend's interview that most JSC members were not interested in assessing whether Mogoeng was suitable to be the next Chief Justice.
“How shall I put it nicely... It is clear the majority of the JSC were not interested in doing their job and assessing the quality of the nominee.
“There are two problems with the process. The majority of the members of the JSC decided long before that they would support the nominee. It is clear from the questions they asked that they would support him.”
The second problem was that there was supposed to be consultation between the president of the country and the JSC – an exchange of ideas.
“It is not clear in this case if there was an exchange of ideas.”
De Vos said the system needed more “checks and balances”, where the president really consulted with the bodies he was constitutionally obliged to.
“There really needs to be an exchange of views about who is the best candidate. It is clear that has not happened in this case.”
A suggestion that judges on the Constitutional Court select the Chief Justice themselves was also flawed.
“If we have judges selecting their own leader that could lead to other problems. We could end up with a 'judocracy'.”
De Vos said the jury was out on whether Mogoeng, nominated for the job by President Jacob Zuma after the retirement of former chief justice Sandile Ngcobo, would be “executive minded”.
“It might be unfair to say it is clear he will be pro-government, no matter what,” said De Vos.
“The problem with the way things have transpired now is that the nominee is tainted in the eyes of majority of the people.”
This was bad for the legitimacy of the Constitutional Court and the judicial system.
“The hope is that this process was a learning process for the nominee, and that he would be extra careful in future not to repeat the same mistakes he has made in the past,” De Vos said.
A JSC commissioner, speaking on condition of anonymity, said on Sunday JSC members had voted in Mogoeng's favour.
Mogoeng drew gasps and laughter from the audience watching his interview as he defended his attitude on rape, his belief in God, his stance on homosexuality and on whether he had sufficient experience for the job.
He said he had dealt with many rape cases and that there were “people who are so brutal to women and children, they literally tear them apart mercilessly.
“I have seen worst you can imagine in many cases,” he said after being asked about a reference he had made to “minor injuries” suffered by a young girl when she was raped.
He defended his intellectual depth after being asked why he had not written any legal articles as other judges had.
He said he did not have a “passion for writing” and that he had always had a problem with colleagues who used words “you had to look up in a dictionary to understand”.
At one point during the interview he snapped at Deputy Chief Justice Dikgang Moseneke, telling him there was “no need for sarcasm”.
He later apologised for the remark.
The Women And Men Against Child Abuse (WMACA) NGO said it was against Mogoeng's nomination.
“His lack of understanding of the psychological impact and injury and harm caused by rape, as he clearly expressed in his responses to questioning at JSC is frightening,” WMACA spokeswoman Germaine Vogel said.
“Justice Mogoeng is not the right person for Chief Justice. His patriarchal attitude towards gender based violence reflects a mindset and values that are inconsistent with the Constitution and the crucial role of the courts in protecting women and children.” – Sapa