Deon de Lange
President Jacob Zuma faces a possible Constitutional Court challenge to the process he has followed to date in “nominating” Justice Mogoeng Mogoeng as the next chief justice.
Advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, said the organisation reserved its right to approach the court “directly and urgently” if the president failed to “regularise” the process by withdrawing his nomination of Judge Mogoeng.
Hoffman maintains that the constitution requires Zuma to consult the Judicial Service Commission (JSC) and political leaders before making his preferred candidate known.
In a letter to Zuma yesterday, Hoffman said the consulting process prescribed by the constitution was “rendered negatory” by Zuma’s announcement of his “preferred candidate” before the process of consultations had even begun.
The purpose of consultations was for the president to be “alerted” to the candidates the JSC and political leaders had in mind, their fitness for the office, and their merits and demerits as candidates.
“By suggesting a nominee up front you are in effect reversing the bona fide order of business contemplated in the constitution, and you are thereby frustrating the purpose of the process laid down, as well as conducting yourself in a manner that is inconsistent with the constitution,” he wrote. This, Hoffman believed, could render the process “invalid”.
“To remedy the situation in which you now find yourself… we call upon you to formally withdraw your nomination and give all interested parties the opportunity of making their nominations for consideration in the consultation process envisaged in the constitution.”
The institute then went on to nominate Deputy Chief Justice Dikgang Moseneke as its own candidate for the top job.
Presidential spokesman Mac Maharaj said last night that the institute was free to challenge the process.
“Number one, I have not seen the letter (from the institute). But number two, it’s a free country.
“I hope that they have taken good counsel and they are free to go to the courts and challenge the president’s actions on the basis of constitutionality.
“If their argument is that (the process) was not constitutional, I am sure they will do what any responsible person will do and consult senior counsel before taking the matter to the Constitutional Court,” Maharaj said.
Hoffman’s letter followed shortly after the presidency issued its own statement on the matter to “correct inaccuracies” in the debate about the appointment.
“President Jacob Zuma welcomes the debate that has ensued following his nomination of Justice Mogoeng Mogoeng,” the Presidency said.
“However, there are disappointing inaccuracies and distortions in the responses and commentary.
“These need to be addressed without delay to enable the debate to continue based on factual information.”
The statement listed the judicial experience of former chief justices, noting that some of them had little or no Constitutional Court experience when elevated to the top spot.
This included former chief justices Arthur Chaskalson – a human rights lawyer before being appointed first president of the Constitutional Court in 1994 – and Pius Langa, who was an advocate when he became a judge of the court in 1994.
“The facts regarding suitability and experience should not be disregarded in the debate. The Presidency reiterates its respect and high regard for the judiciary and for the Constitutional Court as an arbiter in disputes in our country,” said the Presidency.
The Star has been reliably told that the JSC will meet at the Cape Town International Convention Centre on Saturday to discuss the process that needs to be followed in appointing a new chief justice.
It is understood that no candidates will be interviewed at this meeting, which will be chaired by Justice Moseneke.
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