MATTERS judicial lend themselves to holy cow status with mere mortals like myself loath to comment lest we be deemed to be in contempt of some obscure statute or convention.
But the unseemly row and furore over President Jacob Zuma’s nomination of Judge Mogoeng Mogoeng as his candidate for Chief Justice of the Republic of South Africa had me reaching for my contact book and dusting off the phone numbers of senior legal people I know. I canvassed as widely as I could, and read a number of opinions, and came to the measured, and judicious conclusion that the whole affair is an unholy cock-up.
Everybody I spoke to agreed that Judge Mogoeng is “a lovely guy”, albeit very conservative on gay and lesbian issues, and as a lay preacher in an evangelical church, prone to moral conservatism all round.
He also served as a prosecutor in one of the most repressive of all the apartheid bantustans, Bophut-hatswana, at the height of the states of emergency.
None of that would be relevant if he had a track record as a brilliant and incisive jurist. But, as political analyst, Eusebius McKaiser, pointed out yesterday, he only has 10 reported judgments to his name as opposed to over 100 for Judge Edwin Cameron and, as a legal friend pointed out, “over 100” for Judge Dikgang Moseneke – “and those are judgments of exceptional quality, path-breaking judgments.”
And that seems to be the big talking point in legal circles. I took a stroll down St George’s Mall yesterday afternoon to visit the fresh goods market that takes place every Thursday, always a good place to stock up on fabulous eats and also touch base with the legal and political fraternities. I heard the same refrain several times – one senior advocate said to me “very nice guy, very popular, but he does not enjoy the confidence of his colleagues, he is too lightweight”.
Another remarked that “judging is a lot like surgery, only the elite get there, and at the top of the pile, are the brain surgeons, and at the top of the pile of brain surgeons is the brain surgeon to beat all brain surgeons, and that is the Chief Justice. Unfortunately, Mogoeng Mogoeng is not a brain surgeon.
“He has done no wrong, everybody really likes him, but giving him the judge presidency would be like giving the captaincy of an ocean liner to the purser or the petty officer, the ship will founder. The Chief Justice has to have gravitas, someone like Dikgang Moseneke has gravitas, but it is lacking in Mogoeng Mogoeng.”
Several senior people remarked that there are only a handful of judges who could take on the mantle of chief justice, and three names came up over and over again: Judges Dikgang Moseneke, Lex Mpati and Edwin Cameron, with Moseneke the one most mentioned.
Another point that came across strongly was that when it comes to choosing a chief justice, seniority is a major consideration, and time spent in the courts. But over and above that, the chief justice must have the ability to take very difficult decisions, have a high degree of erudition, and he or she must have a strong philosophical grounding and be very confident in that philosophical position. Out of some 200 judges in South Africa, there are perhaps 10 who have that, and Judge Mogoeng is not one of them.
So where to now? From the rumblings I have picked up ever since Judge Mogoeng’s nomination was announced, it is quite clear that a significant portion of the judiciary is deeply unhappy with the nomination. Not from a personal point of view, but from a professional point of view. It’s a bit like someone from the junior ranks of a company’s executive suddenly being nominated as chief executive officer or managing director just because the chairman of the board didn’t personally like the deputy CEO or MD.
The whole bumbling saga began, of course, with Zuma getting bad legal advice on the extension of the term of Chief Justice Sandile Ngcobo. On top of that came the legal challenge to that extension, a challenge one learned friend described as “a legal strategy that backfired very badly, and created a massive crisis in the judiciary. It is a great pity we have lost Sandile, he is a great judge, a great jurist. A constitutional amendment should have been negotiated, the constitution is not the Qur’an or the Bible, it can be amended when required.”
Our judiciary has had enough of a battering in recent months and years. President Zuma needs to intervene decisively in this mess, and restore confidence in the institution. Any other course lends itself to the suspicion that he seeks compliance, not wisdom.