It took the Judicial Service Commission an unprecedented two days to interview Justice Mogoeng Mogoeng for the top judicial post, but its recommendation to President Jacob Zuma that he was the man for the job was a mere three paragraphs.
In a letter to Zuma dated September 5, Deputy Chief Justice Dikgang Moseneke, who chaired the JSC interview at the weekend, was short on detail.
“Having considered concerns raised by various bodies regarding the suitability of Justice MTR Mogoeng for the position of chief justice… on allegations, inter alia, of homophobia, gender insensitivity, want of ethics, lack of judicial experience, his faith, temperament and judicial accountability, Justice Mogoeng’s written response to those allegations and his interview, the commission is, by a majority, of the view that Justice Mogoeng is suitable for appointment to the position of chief justice… “
The president must appoint a chief justice after consulting the JSC and leaders of the political parties in the National Assembly.
Zuma was set to meet DA leader Helen Zille on Tuesday night.
Her party on Monday made clear that Justice Mogoeng should not be appointed and the process should be re-opened. Several opposition parties are of a similar view.
On Sunday, the 23-member JSC voted by 16 to seven in a secret ballot in favour of Mogoeng, after a bruising interview marked by tensions between Moseneke and Mogoeng.
With the powerful anti-Mogoeng lobby still opposed to the JSC decision, it appears there may well be efforts to legally challenge the president’s expected appointment of the 50-year-old judge to be the new chief justice.
Zille wants Zuma to withdraw Justice Mogoeng’s nomination and consider other candidates.
The JSC decision has met widespread criticism, with Cosatu expressing disappointment and some legal experts branding the process “a stitch-up” and a public display of “toeing the party line”.
Zille wrote to Zuma saying that Justice Mogoeng was not suitable for the position. She said after his unprecedented two-day televised grilling, Mogoeng did not possess the “outstanding” legal skills required.
She told journalists that the most insidious effect of Justice Mogoeng’s appointment would be that “judges and aspiring judges who are still among the ranks of advocates would have a clear idea of the cost to their careers of making findings that are contrary to what the ruling party executive want or of taking positions that clearly ensure the judiciary is independent of the executive”.
“That could be a creeping cancer that, if not checked, would destroy the independence of the judiciary,” said Zille.
Cosatu spokesman Patrick Craven said his organisation was “obviously disappointed”.
Cosatu had warned that the appointment “would be a slap in the face of millions of black, and African women in particular, who have championed the rights and interests of women, and would constitute a reversal of the struggle for total women emancipation”.
With the exception of the ACDP, all the bigger parties represented in Parliament opposed Justice Mogoeng’s nomination in their submissions to Zuma. IFP leader Mangosuthu Buthelezi found it “incomprehensible” that leaders of parties should be asked after the fact to express their views in the nomination.
Paul Hoffman, SC, a director at the Institute for Accountability in Southern Africa, said Zuma would be acting “unconstitutionally” if he did not open up the process to more candidates.
In terms of the constitution – which empowers the president to appoint the chief justice – Zuma had an obligation to “bring an open mind to the process”.
He can appoint the chief justice “after consultation” with the JSC and leaders of parties represented in the National Assembly.
“If he does not, he is frustrating, undermining and rendering the process nugatory,” said Hoffman. He agreed with political analyst Adam Habib who said the JSC hearing was “a stitch-up”.
“It came close to being a charade; the ANC caucus was clearly acting as Mogoeng’s buffer when he was asked tough questions.”
If more candidates were introduced, Mogoeng’s suitability could be measured against other viable candidates.
But Black Lawyers’ Association president Nano Matlala said that it was too early to speculate about the process.
Centre for Constitutional Rights director Nikki de Havilland said it was clear from the questions being asked that certain members of the JSC were “toeing the party line”.
It was not clear whether Moseneke would quit the judiciary.
He was lured from business to the judiciary by then president Thabo Mbeki, who believed he would be a future chief justice. - The Mercury