Democracy well served by JSC hearings

2011-09-10 09:18

The Judicial Service Commission (JSC) hearings were both spectacular and informative.

As they unfolded it became clear that the issue had generated public interest. It also evoked conflicting views and played on preconceived attitudes.

At the centre of the process was a man who was not well known or who had not commanded media attention.

I had heard the voices that spoke about him before he spoke and I heard that here was a sexist, homophobic man, who supported the death penalty at some point and whom the JSC in the past nevertheless saw fit to appoint as a judge and to the esteemed bench of the Constitutional Court.

I heard the elements of the campaign against him and at times I must admit I had grave concerns.

However, the method used by the JSC assisted me a great deal.

I saw a person with strength of character and as human as they come. He lost his cool after hours of being questioned and facing a very openly hostile deputy judge president.

I saw a man explain patiently the reasons for his judgments, that had made me, as a woman who will continue to fight for the rights of women and children forever, worry about the consciousness of the judiciary when it came to the trauma of rape victims days and months and years after the incident.

I heard him tell that judges are constrained by what the law puts before them and that the law does not always give a judge a set of rulings to pronounce upon.

I was listening to a judge, and came to the conclusion as I watched the proceedings that the deputy chief justice was talking at Justice Mogoeng Mogoeng in an arrogant manner and that he was being judged, not listened to.

I began to believe that the deputy chief justice was unhappy that a person he had chosen to serve as his superior was not the man sitting before him.

I reflected a bit on the statement made by the eminent Justice Dikgang Moseneke: “I do not need to be judge president.”

This statement can only be made by a person who has a degree of certainty that he is in control of a situation, then along comes the name of a colleague who may not be “controllable”.

This view I hold of Justice Moseneke makes me appreciate more the independence of a person such as Mogoeng.

I would have loved to see a woman as the chief justice, but I am convinced that the person who withstood the unfair media campaign against him and the hostility of members of the JSC, would be fair and would put the Constitution above his own beliefs including his religious beliefs.

If religious affiliation is a test of homophobia and gender insensitivity, then we must examine all our judges based on these criteria. Islam, Judaism and Christianity are not champions of the right to choose a sexual orientation and are certainly not champions of gender equality in society.

Our Constitution is the arbiter and I believe that because of the manner in which he was grilled the new chief justice will be more honest in his appreciation of our Constitution.

As the JSC process unfolded last Saturday, I began to feel elated that our democracy was winning. Mogoeng was accountable to the JSC and to the country as a whole.

We as citizens must rise above the loudest voices at times and this is one situation in which we must do so.

Justice Mogoeng is not a member of the ANC and we would not wish him to be either, so we will watch him and we will maintain our civil right to criticise him if he acts in contradiction to the Constitution.

We live in a secular state and the Constitution is the arbiter for every South African.

The real issue here is that there appeared to be a concerted effort to deny the president of South Africa his executive authority to make a nomination of the chief justice and to appoint the person after he consulted the JSC.

But whatever the future holds for the judge and for the country, our democracy and the new process in the JSC is the winner.

» Duarte is on the national executive committee of the ANC 

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