Deputy chief justice 'overlooked'

2011-08-17 16:01

Cape Town - Pretoria University law faculty's Centre for Human Rights has seriously 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 on Wednesday.

"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.

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.

Constitutional experience

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.

  • myancmyfutur - 2011-08-17 16:08

    Maybe they should have allowed the President to re-appoint Ngcobo and stop this mourning or perhaps ammend the constitution to empower them to appoint the chief Justice

      George - 2011-08-17 16:36

      Zuma owes no one an explanation. He re-appointed Ngcobo and all hell broke loose. The DA and all pseudo legal thinkers cried wolf. Now he appoints Mogoeng, still some people are not satisfied. The solution to this is to vote for the Chief Justice, still Mogeong would win because Zuma and the AnC would back him. There is nothing illegal about Mogoeng, he did nothing wrong, he is a constitutional court judge, hence he is eligible for the top post. Maybe Zuma should have appointed the gay constitutional court judge Cameroon, still there would have been an outcry. Moseneke is a former deputy president of the PAC which called on all white people to be sent back to Europe. Clearly, the PAC and the ANC are ideological enemies, so why would Zuma in all fairness consider the loudmouthed Moseneke for the top job. Moseneke dug his own grave by aligning himself squarely with the Mbeki crowd. he is a factionalist with deep racist roots, attributes that a top judge should not associate with.

      Gavin.H - 2011-08-17 17:13

      He reappointed Ngcobo by trying to alter the consitution to give himself the power to re-appoint him if he wanted to. Instead of giving himself (the predident) additional powers to extend the Chief Justice terms whenever the necessary (powers that could easily be abused by future presidents and future chief justices), he should have made some changes to the conditions under which Chief Justice is forced to resign. But he didn't. He tried to get some extra powers for the presidency assuming everyone would let it go because everyone actually wanted to keep Ngcobo on. Sneaky bid for additional powers that didnt work out.

      Meanleader - 2011-08-18 08:45

      JUst another corrupt move by our learned president .....And another affirmative action wonder of intellect to help the racist cause of the ANC

  • Wonderboy - 2011-08-17 16:09

    Abolishing the Scorpions! Well to me, that says it all. The McBride issue is also a tell tale of how the sentiment goes.

  • tshepo.theman - 2011-08-17 16:12

    Mogoeng Mogoeng is an ANC commrade, hands off our commrades finished and klaar

      IC1 - 2011-08-17 16:23


      Trumpi - 2011-08-17 16:35

      Well that confirms our suspicions.

      coconuts - 2011-08-17 16:36

      we need somebody that can do the job tshepo - we have too many comrades in positions today that cannot do their job

      toleranne - 2011-08-17 16:37

      Everyone is equal. Equal rights, equal responsibilities, equally subject to other people's right to express opinions. It's in the Constitution - finish & klaar.

      Lab-Rat - 2011-08-17 16:47


      Neil - 2011-08-17 16:53

      Ag Tshepo. Hands Off? I would love to get my hands on you just for 2min.

      Bill - 2011-08-17 16:57


      edalsg - 2011-08-17 16:59

      Stoopid Plonker . Another Cadre at the trough.

      Komasa - 2011-08-17 20:16

      Tshepo, your eyes turn Neil on.

      peter - 2011-08-18 06:22

      Frank Dane: "Get all the fools on your side and you can be elected to anything". Johann Wolfgang von Goethe:" There is nothing worse than aggressive stupidity". (By the way he is German - that's in Europe where all the Merc's, BMW, VW and Audi's come from. johann Wolfgang von Goethe

  • embargo - 2011-08-17 16:12

    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." Seems they learnt well from the previous regime yet they profess to be different. Friends in high places? Can only hope said Mogeong sticks to the laws prescribed as per the legal texts and various acts

  • IC1 - 2011-08-17 16:22

    Obvious aint it?

  • Brainbow - 2011-08-17 16:22

    How could anyone in the right mind have supported the abolishment of the Scorpions, let alone a Constitutional Judge. With Zumas help it is now clear that we have a rotten apple in the judiciary and he is going to be the head! Surely not? It seems as if the independence of our judiciary is now officially under attack. We need to rise up and fight this with all we have!

  • StaalBurgher - 2011-08-17 16:27

    Tick tock, tick tock...

      Seanred - 2011-08-17 16:49

      The witching hour approaches, tick tock.

  • AndV - 2011-08-17 16:31

    This is a ANC appointment-meaning it is bag for the credibility of SA. JZ has not once displayed putting the interest of SA first. He surround himself with inferior leadrs and cronies and don't give a damn about this country. His lack of mental ability is reflected very clearly during his term so far. Not to talk about his ill-advised advisors. He should be exposed for once and for all.

  • Coconut - 2011-08-17 16:45

    Why must anyone be surprised. The new appointee is quite obviously a long time buddy of the showerhead and the showerhead more likely than not owes him a favour. Maybe the new Chief Justice will see his way clear, after discussions with sir JZ, to sweep the entire Arms Deal Debacle under the carpet. I will lay my c@@k on a block that the is reason for this appointment. Any bet?????

      darkwing - 2011-08-17 17:00

      Don't worry. Your mister will be safe. I think that if you can't beat the Constitution, just get someone to beat it from the inside.

  • Geraldo Mc phu - 2011-08-17 17:00

    Surpringly people are still trying the hardest to understand the president.This despite the fact that Mac has already told us that lack of formal education on the part of a president makes him difficult to understand . I personally have given up understanding the president and prefer spending my time doing other things ...

      Shorts1 - 2011-08-17 17:58

      So you are totally comfortable with the reality that he is busy screwing up the entire country in the process. Maybe you should crawl quitely back into your mole hole, planning to emerge again in 2015, at which stage there will be very little left of this country, raped desolute by the current ANC regime.

      Shorts1 - 2011-08-17 18:01

      Sorry - 'quitely' should, as hopefully you have noticed, read ' quietly '

  • John - 2011-08-17 17:01

    That's what happens when you ask a man with little or no education . . make that NO EDUCATION . . to pick the Chief Justice of South Africa. What does he know?!

      George - 2011-08-17 17:11

      At least he is the state president, something that you wont be able to achieve in a trillion years despite your apartheid education. What do you know? Despite your antique education you are just an atom of a footnote in society. Zuma without education determines your emotions even in your bedroom.

      theysay - 2011-08-18 07:03

      I had my shower this morning!

      AJ - 2011-08-18 08:24

      @George, you're mocking the stupidity of the SA voters with your comment, not John.

      Meanleader - 2011-08-18 08:53

      @george " "Get all the fools on your side and you can be elected to anything". Johann Wolfgang von Goethe:" I flounder for words or equal ignorance to reply to you !!

  • PSquare - 2011-08-17 17:01

    Dikgang Moseneke is 64 years old and would not have served his full term as Chief Justice had he been appointed. In 4 years time we would be back to square one again looking for a chief justice

  • Shorts1 - 2011-08-17 17:10

    Zuma is making totally sure that he will never be called to account for his alleged illegal corruption activities. Just like Mugabe, he is slowly but surely building a multi-layered structure of chosen ANCadres to keep himself in power until such time as he has built up his own nest egg to the point that he no longer needs to be concerned about his own welfare or that of his enlarged legal / illegitimate / equally questionable family members.

  • OLIBO - 2011-08-17 17:12

    ooh!! the lobbysts. First, Wits' Centre for Legal Services wins a case against Zuma at the CC, and Pretoria University is telling Zuma who must be the CJ. What next?

  • bosegoos - 2011-08-17 17:52

    The President's choice of Judge Mogoeng (x2) is questionable. The media and the DA could be blamed that they were instrumental in Judge Ngobo's resignation to accept a further term of office as he was more than capable of holding this post. The nomination of Judge Mogoeng who is relatively young, however, has the advantage that if all goes well for Judge Mogoeng, the chances of Judge President Hlope being appointed as Chief Justice is effectively blocked.

  • letsee - 2011-08-17 18:05

    The Presidency doesn't overlook anything. There is a reason behind every decision.

      Nipcat - 2011-08-18 12:06

      Agreed but not always what is good for the country, only what is good for the president!

  • alexander taylor - 2011-08-17 18:14

    You really expected anything else? the government is corrupt and the only really free opposition to hold it to book is the constitutional court, so corrupt it with sycophants like this one, its as plain as the nose on my, and yes, anglo-saxon face

  • Peter - 2011-08-17 21:23

    Zuma is increasingly consistent in his penchant for doing the wrong thing at the wrong time. How many years will it take South Africa to unwind the consequences of his foolish actions and inexplicable inactions? May the universe protect us from ANC political infighting that results in him being given a second term.

  • AJ - 2011-08-18 08:22

    It is not best man for the job, rather most convenient man for the job. These appointments have nothing to do with who can serve us best, but who can serve govt interests best.

      Nipcat - 2011-08-18 12:07

      As I said above - its not done for the good of the country, but what is good for the president.

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