Chief judge must be beyond all reproach

2011-08-27 15:15

On the face of it, a poorly argued judgement by one out of up to 11 judges would easily be offset by the court working as a collective that is split into odd numbers so as to avert a hung decision.
This means that if a judge placed his or her ­religious prescripts, personal philosophies or dogmas ahead of the Constitution, it will not in itself mean that justice would not have been served, ­because such a judge would hopefully have been part of a team that looks to the Constitution as their guide. But this misses a critical point.

The office of the chief justice goes beyond being a part of a committee that decides on a legal point. It is a position of leadership that transcends that of the small group of men and women that decide on the fate of a natural or juristic person.

The chief justice holds no ordinary position, especially in a fledgling constitutional democracy such as the one we are building. The incumbent must embody the values that set us apart from the state we used to be.

It can therefore not be gainsaid that the person who accepts the enormous responsibility and privilege of leading all of the country’s lawyers should be beyond reproach.

The question that has bubbled under the surface since President Jacob Zuma nominated Judge Mogoeng Mogoeng as the next chief justice, is whether he is such a person and whether he will command the personal respect of his colleagues at Constitutional Hill and all other lawyers. It is an important question to resolve.

Judge Mogoeng’s detractors point to a number of judgements that indicate he may not always have incorporated the spirit and the letter of the Constitution. They have argued that he has allowed for his religious views to influence his interpretation of the law. This is patently undesirable in a society that is secular and diverse.

Judge Mogoeng’s candidacy should therefore be dealt with soberly and honestly by all parties. Ill-considered comments about his experience have been correctly rubbished by presidential spokesperson Mac Maharaj as unfounded and ­irrelevant.

The country’s courts, the judiciary and the entire legal profession demand a leader. The office of the chief justice requires that the incumbent be both an excellent administrator and a brilliant lawyer rather than one or the other.

Some of Judge Mogoeng’s own colleagues in the legal fraternity do not seem to believe he ticks both boxes. In the spirit of hearing the other side of the story, Judge Mogoeng’s supporters must argue why we should disregard what we
already know about their preferred candidate.

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