ZUMA’s chess game unleashes a storm

si hearing9ETCH (Read-Only) . FROM JUNIOR TO GIANT: Constitutional court judge, Justice Mogoeng Mogoeng, answering questions |at the JSC hearing held at the Cape Town International Convention Centre on his suitability to become chief justice. Picture: Leon Lestrade

It may be his upbringing in rural KwaZulu-Natal or his involvement in Umkhonto we Sizwe, but President Jacob Zuma does not appear to be a very democratic man.

The manner in which the appointment of Chief Justice Mogoeng Mogoeng unfolded had the tone of the decree of a chief dictating to his subjects and then daring them to differ at their peril.

When people spoke up, his headmen were soon dispatched to defend the position taken in the post-Polokwane kraal – those who questioned the single nomination of a judge who had served just two years in the Constitutional Court and who had written little to nothing academically on law or on the constitution in his 14 years on the Bench should say nothing.

ANC secretary general Gwede Mantashe chastised the “interest groups” for resisting transformation, as if the appointment of Justice Mogoeng immediately equated to transformation.

Presidential spokesman Mac Maharaj was quick to point out that former Chief Justice Arthur Chaskalson was not even a judge when he became chief justice.

His statement, erroneously, claimed that former chief justice Pius Langa was also not a judge before leading the Concourt, despite having written in the same statement that Justice Langa joined the Constitutional Court in 1994, then became deputy chief justice some seven years later and became chief justice after another four years.

Any comparison between Justice Langa and Justice Mogoeng is like comparing chalk and cheese.

A transcript of his Judicial Service Commission interview shows that Justice Langa had done extensive work to grow democracy both inside and outside South Africa’s borders.

He headed a commission of inquiry into election issues in Lesotho, visited Fiji to promote democracy, and headed constitutional review commissions in Sri Lanka, Zimbabwe, Rwanda and Tanzania. He helped compile the Bangalore Principles of Judicial Ethics. In his interview, Justice Langa spoke of acting as chief justice over a six-month period.

Much has been made of the fact that he was former president Mbeki’s only nomination, as Ngcobo and Mogoeng were Zuma’s.

However, Mbeki is quoted was having said at the time: “I am of the view that Deputy Chief Justice Pius Langa would be a suitable candidate to succeed as our chief justice. I request the advice of the JSC in this regard. Of course, the JSC may also make any other proposal it may deem appropriate.”

Mbeki was also mindful that important democratic processes should not and cannot be rushed, initiating the nomination and interview process well in advance of Justice Chaskalson’s departure “to allow enough time for a smooth handover to the new chief justice”.

By definition democratic processes are consultative. Democracy encourages free speech.

The chief and subject mentality displayed by President Zuma smacks of a lack of understanding of constitutional democracy.

That lack of understanding – and Zuma’s perplexing decisions in the criminal-justice cluster – is wreaking havoc on the justice system. The controversy and legal challenge around the appointment of National Director of Public Prosecutions Menzi Simelane are known. Ditto SAPS commissioner Bheki Cele.

Already, one interest group has sought a legal opinion on whether the constitution has been correctly interpreted by Zuma and the JSC. In the legal community, an opinion is like a loaded gun – you don’t get one unless you’re considering using it.

The Freedom Front Plus has gone as far as to threaten a legal challenge.

If Justice Mogoeng’s appointment were challenged it would most likely end up in Concourt, with the people he leads having to decide on whether the process of his appointment is in line with the Constitution.

This will be the third time a sitting Chief Justice will be dragged into court as a result of something Zuma-esque.

The first time we saw this happen was the ongoing saga involving Western Cape Judge President John Hlophe.

We will recall that Judge Hlophe is said to have tried to influence the Concourt to find in favour of Zuma in the Thint/ Arms deal cases.

The furore that followed meant the lower Johannesburg High Court and eventually the Supreme Court of Appeal were forced to decide on a case involving their Concourt colleagues.

Later this month the Concourt judges, most of whom are party to the case, are expected to hear argument from the parties involved and amicus curiae on how this particular mess can be rectified.

Some have called it a “constitutional crisis”, others believe there is an easy solution. All agree that it’s an embarrassing mess.

As if that wasn’t enough, Zuma’s decision to extend the term of office of Chief Justice Sandile Ngcobo created an unnecessary stink at the end of what was a distinguished judicial career.

Zuma appointed Ngcobo knowing full well he only had two years left on the Bench and left the issue of his extension to the last minute.

Seeing the irrationality of Zuma’s plan, Ngcobo gracefully stepped down just days before his colleagues ruled that the law which extended his term was not in touch with the constitutional principles we cherish.

Having clashed with interest groups and opposition parties over appointing Justice Ngcobo over Deputy Chief Justice Moseneke in 2009, one would think our “chief” would have seen the opposition coming.

And, having been hauled before the Constitutional Court for implementing legislation which by all accounts had been on the books for 10 years but never been tested in court, one would have thought Zuma would consider his next move carefully.

Instead, he places the man who he expects to lead the judiciary and Constitutional Court as the new apex court directly in the line of fire – alone.

The fact is Justice Mogoeng is considered a newcomer to the Constitutional Court. By his own account, much of his 14 years of judicial experience came down to projects he ran outside the court such as training programmes for magistrates. He listed 10 notable judgments in his JSC questionnaire, but his reported cases are few and far between.

At best, he is a good administrator. At worse, he is a wholly unqualified candidate for chief justice who will run the judiciary for 10 years.

Dispatched from the kraal, Maharaj was quick to point out that Zuma didn’t even need to chose a Concourt Judge.

Mantashe said Justice Mogoeng would have the benefit of leading the transformation project for a decade, saying: “He will serve longer and thus help to stabilise the institution.”

The question then is why not select a respected, well-weathered jurist and administrator like Supreme Court of Appeal Judge President Lex Mpati or Gauteng Judge President Bernard Ngoepe to be interviewed alongside Justice Mogoeng – both of whom would serve a maximum of 12 years on the Concourt if they did not reach the age of 75 first?

Could it be that our chief knew that the Justice Mogoeng would not stand tall next to these men?

Zuma has done a great disservice to his preferred candidate.

With the attention split in more than one direction, it’s likely we would not have seen the embarrassing spectacle of a sitting Constitutional Court judge having to read a 47-page missive explaining his views on gender based violence, religion and homosexuality.

The rolling battle with his current senior, but soon to be junior Moseneke would most likely also have been avoided. It’s this sort of unnecessary infighting that the Zuma presidency has precipitated that leaves a bad taste in the mouth. A “Polokwane” within the judiciary – and at what expense?

What good does it do to have the chief justice’s credentials questioned by not only the wealthy “interest groups”, but by ANC alliance partner Cosatu, by women’s and legal advocacy groups, by two of the country’s largest bar associations and then forge ahead as if none of these people had chosen to speak up?

Where’s the democracy in that?

One wonders whether the intentions of Zuma and the ANC are to strengthen democracy, in which the courts play an integral role, or to weaken the courts so that they take a rubber stamping role similar to the one Parliament has done.

It’s a dangerous game our “chief” is playing with the judiciary, one in which the South African public can only be the loser.