Only Mogoeng in the running

2011-08-20 19:07

An open interview will be conducted with Justice Mogoeng Mogoeng on September 3 and no other candidates will be considered for the post of chief justice.

This decision was taken by the Judicial Service Commission (JSC) after a four-hour meeting in Cape Town ­yesterday.

The JSC gathered after President Jacob Zuma informed Justice Dikgang Moseneke, deputy chief justice, in writing of his nomination of Mogoeng for the position of top judge.

CP Fourie, spokesperson for the JSC, told the media after the meeting that the decision about Mogoeng’s interview went “quite quickly”.

It was the finer points of whether the JSC was duly consulted that kept the members, including representatives of opposition parties behind closed doors most of the day.

By way of secret ballot it was decided by a majority vote that no further nominations would be accepted as it was “neither permissible nor desirable to do so”.

Fourie said there was an “absolute, clear minority dissenting from the decision”.

How-ever, the JSC’s decision to accept Zuma’s nomination for chief justice is likely to still be challenged.

Initially, both the National Association for Democratic Lawyers (Nadel) and ­Advocates for Transformation would have preferred Moseneke to be appointed to the position, citing his experience and seniority in the country’s highest court.

The Council for the Advancement of the South ­African Constitution said it would consider challenging the outcome of the process to ­appoint the chief justice if it was not satisfied that the legal and constitutional processes had been followed.

Council chair Sipho Pityana said his organisation’s view was that while the Constitution afforded Zuma discretion in appointing the chief justice, such discretion was not “unfettered” as the “process allows the president to consult” the commission and leaders of ­political parties.

Pityana said the Constitution “enjoins the president to engage and get feedback and to take into account whatever it is that people raise. The JSC had to ensure that such people as we have on the bench are not only competent but are suited to the roles they fulfil.”

Pityana said the JSC should be free to consider other nominations brought before it by the legal fraternity and members of the public.

“The test is whether the president is sufficiently open-minded. And in terms of the rules and the Constitution he has to demonstrate open mindedness to be persuaded otherwise if there is a compelling recommendation other than that which he had put ­forward,” he said.

Pityana said the candidates’ ­judgments and public pronouncements would have to come under scrutiny, as would the issue of whether he could stand up against powerful ­interests in society.

“Questions must and will be raised about the suitability not only of the person the president has nominated, but also any other. But I have full confidence that the JSC is competent to deal with the matter.”

Terry Motau, SC, Advocates for Transformation chairperson, said his organisation preferred Moseneke, even though there was a group that felt the organisation should defer to Zuma’s nomination.

Motau said while it was unfair to cast aspersions on Mogoeng, there was a view that Moseneke was senior to the nominee chief justice.

“You need to lead a bench that has confidence in you. That’s where we come from,” Motau said.

Nokukhanya Jele, Nadel’s publicity secretary, said her organisation’s leadership would await the outcome of the JSC meeting held yesterday before it gave branches time frames to become involved.

But Jele said Moseneke’s name has been raised by Nadel, which believed that seniority and experience should be relevant criteria for the appointment of the chief justice.

Constitutional expert Marinus Wiechers said the position of chief justice carried “immense responsibility”, and was worried about whether the nominee had the experience.

“In our present circumstances you need a strong chief justice to guard the independence of the courts and one can only hope he’ll fulfil that responsibility,” he said.

Paul Ngobeni, a legal expert close to the Zuma administration dismissed questions about Mogoeng’s experience, saying he had gathered enough experience as a judge over the past 14 years.

“Once a judge has been appointed, we assume that he is fit. The only time this is rebutted is when the judge has been impeached,” Ngobeni said.



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