Rights centre surprised at Mogoeng’s nomination

2011-08-17 13:03

Pretoria University law faculty’s Centre for Human Rights has questioned President Jacob Zuma’s nomination of Constitutional Court Judge Mogoeng Mogoeng to be the new chief justice.

“Compared to his predecessors in the post-1994 era – chief justices [Arthur] Chaskalson, [Pius] Langa, and [Sandile] Ngcobo, whose appointments reflected their considerable academic and intellectual stature established by illustrious careers prior to or as members of the court – the basis for Justice Mogoeng’s nomination is startlingly unclear,” the centre said today.

“There is in our view a lack of evidence to assure South Africans that the best possible candidate has been nominated to serve as our chief justice – a position that he will hold, if appointed, for the next decade,” it said in a statement.

It was not clear what weight, if any, had been attached to Mogoeng’s ability to play an intellectual leadership role as far as the court’s adjudicatory role was concerned.

Mogoeng was appointed to the Constitutional Court only in October 2009, making him one of the four most junior members of the court.

His elevation to the position as head of the judiciary came above that of sitting Deputy Chief Justice Dikgang Moseneke and more experienced members of the Constitutional Court and other courts.

Overlooking the deputy chief justice could arguably have been acceptable if an equally senior judge or a female judge was nominated. Failure to do so at the very least deserved an explanation, the centre said.

Overlooking the most senior judge on the highest court for the position of chief justice had an unfortunate precedent in South Africa’s less illustrious past.

Both in 1957 and 1959, Justice Oliver Schreiner, the deputy chief justice at the time, was overlooked in favour of more junior candidates more closely aligned to the government of the day.

“The available evidence leaves one pondering why Justice Mogoeng has been selected above other candidates with better credentials to serve as the country’s chief justice.”

At the time of Mogoeng’s appointment in 2009 concerns were raised about his lack of experience in constitutional matters.

Since his appointment he had done little to ameliorate these concerns. In almost two years he had only written the court’s majority judgment in four, relatively uncontroversial, cases.

His first judgment was delivered about ten months after taking his seat as Constitutional Court judge.

Even if this load was similar to that of other judges on the court, the point was that Mogoeng lacked constitutional experience as demonstrated in reasoned judgments.

He had also written dissenting judgments in three cases. In his most notable dissent (Le Roux v Dey) Mogoeng disagreed with the majority but did not disclose the basis of his disagreement, deviating from a long-standing tradition of articulating disagreement in a separate opinion.

Mogoeng also wrote minority opinions in the Glenister case, upholding legislation abolishing the Scorpions, and in the McBride case (The Citizen v McBride), finding that The Citizen, acting maliciously, impaired Robert McBride’s dignity.

“Surprise and lack of persuasive substantiation breed suspicion,” the centre said.

“The obvious question is: Why was the obvious or any of the other more experienced candidates not selected?”

If he was appointed, it would be up to Mogoeng to dispel any perception or suggestion that his unexpected appointment signalled “an attempt at executive corrosion of the independence of the judiciary”.

“The President need not heed any misgivings expressed about the basis and lack of convincing reasons for his choice. However, he should at least seriously consider the views of opposition leaders and especially the Judicial Service Commission (JSC).

“We therefore encourage the JSC to consider the gravity of its role, conscious that the appointment of a chief justice should not, in the first place, serve the interest of an incumbent government (or President), but that of the state as a whole,” the centre said.

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