Expert slams chief justice selection process

2011-09-05 15:51

Cape Town - The Judicial Service Commission (JSC) may have "misconstrued" its powers in approving Mogoeng Mogoeng as nominee for chief justice, an expert said on Monday.

Constitutional law professor Pierre de Vos said the JSC's decision not to entertain any other people for the top job two weeks ago could have caused the body to be pushed "into a legal corner".

"The legal challenge would be the decision taken by JSC two weeks ago that it was not permissible to entertain any other possible people for the top job," he said.

"There is a strong argument that the JSC misconstrued its powers. They interpreted it quite extraordinarily."

De Vos said it was clear during the weekend's interview that most JSC members were not interested in assessing whether Mogoeng was suitable to be the next chief justice.

"How shall I put it nicely... It is clear the majority of the JSC were not interested in doing their job and assessing the quality of the nominee.

Checks and balances

"There are two problems with the process. The majority of the members of the JSC decided long before that they would support the nominee. It is clear from the questions they asked that they would support him."

The second problem was that there was supposed to be consultation between the president of the country and the JSC - an exchange of ideas.

"It is not clear in this case if there was an exchange of ideas."

De Vos said the system needed more "checks and balances", where the president really consulted with the bodies he was constitutionally obliged to.

"There really needs to be an exchange of views about who is the best candidate. It is clear that has not happened in this case."

A suggestion that judges on the Constitutional Court select the chief justice themselves was also flawed.

"If we have judges selecting their own leader that could lead to other problems. We could end up with a 'judocracy'."


De Vos said the jury was out on whether Mogoeng, nominated for the job by President Jacob Zuma after the retirement of former chief justice Sandile Ngcobo, would be "executive minded".

"It might be unfair to say it is clear he will be pro-government, no matter what," said De Vos.

"The problem with the way things have transpired now is that the nominee is tainted in the eyes of majority of the people."

This was bad for the legitimacy of the Constitutional Court and the judicial system.

"The hope is that this process was a learning process for the nominee, and that he would be extra careful in future not to repeat the same mistakes he has made in the past," De Vos said.

A JSC commissioner, speaking on condition of anonymity, said on Sunday JSC members had voted in Mogoeng's favour.

Mogoeng drew gasps and laughter from the audience watching his interview as he defended his attitude on rape, his belief in God, his stance on homosexuality and on whether he had sufficient experience for the job.

He said he had dealt with many rape cases and that there were "people who are so brutal to women and children, they literally tear them apart mercilessly.

"I have seen worst you can imagine in many cases," he said after being asked about a reference he had made to "minor injuries" suffered by a young girl when she was raped.

Inconsistent with the Constitution

He defended his intellectual depth after being asked why he had not written any legal articles as other judges had.

He said he did not have a "passion for writing" and that he had always had a problem with colleagues who used words "you had to look up in a dictionary to understand".

At one point during the interview he snapped at Deputy Chief Justice Dikgang Moseneke, telling him there was "no need for sarcasm".

He later apologised for the remark.

The Women And Men Against Child Abuse (WMACA) NGO said it was against Mogoeng's nomination.

"His lack of understanding of the psychological impact and injury and harm caused by rape, as he clearly expressed in his responses to questioning at JSC is frightening," WMACA spokesperson Germaine Vogel said.

"Justice Mogoeng is not the right person for chief justice. His patriarchal attitude towards gender based violence reflects a mindset and values that are inconsistent with the Constitution and the crucial role of the courts in protecting women and children."

  • zulufox - 2011-09-05 16:03

    some how I knew that the 'expert' would be pierre de vos ... surely now he gets paid to speak to news24 ... R5 per word?

      Joquim - 2011-09-05 16:09

      And your point being?

      Maleo - 2011-09-05 16:10

      Why don't you comment on the substance of the article in stead of this BS?

      zulufox - 2011-09-05 16:12

      @Maleo, funny how you should ask that because pierre de vos is always full of it, BS that is...

      Meanleader - 2011-09-05 16:22

      Zulufox....or is it that he is the only educated judge who is honest , and keeps catching your ilk with their corruption , and spilling their ignorance all over SA . You better start getting used to honest people son ....Too many people in SA are sick of you and your corrupt kind !

      GoblinPisser - 2011-09-05 16:23

      So, please tell me, just how did you 'know', huh??

      zulufox - 2011-09-05 16:24

      @Meanleader, Pierre de Vos is not a judge... you are so clued up... enuff said...

      DEVILS SON - 2011-09-05 16:48

      this sort of position should be put to national vote, IEC the works

      Neil - 2011-09-05 16:55

      a song comes to mind: "we're on the road to nowhere"....

      Komasa - 2011-09-05 16:57

      @Neil you and your cousins from edenvale panthers?

      Totman - 2011-09-05 17:11

      @Komasa. Glad to see you can be so funny. It made my day end better.

      Zion - 2011-09-05 17:12

      From what we have read and seen in the past this guy is firmly in the laps of the ruling party and its senior officials. Classical was the case of him supporting Tutu in the mad idea of a white wealth tax. (That has since been shot down).

      The Wonderer - 2011-09-05 17:28

      I was sitting there on Saturday morning just listening for 30min + how the JSC was going back & forth about not having to discuss to include other nominees. It was pathetic to say the least! The ANC engineered the major of the JSC to be pro Mogoeng. That process was tainted from the get go! At one stage yesterday, the one guy just TRIED to suggest to Mogoeng to walk away, but got interrupted all the way, the poor bloke could hardly get a word in... It's so blatantly obvious for the rest of us to see that this guy isn't mature enough or even experienced enough for the job, but he has ANC cronies! It is a BBEEE job only!

      roboman1 - 2011-09-05 17:37

      A valid point, De Vos in my view lacks credibility, he is a bit like a pay per view legal expert

      The Wonderer - 2011-09-05 17:44

      Radebe was so blatantly pro Mogoeng, all he needed was a pair of pom poms & a little mini skirt to go with his cheer leading!

      Neil - 2011-09-05 18:06

      @Komasa: Yes my cousin is.. You still licking your wounds?? Done crying to mommy and playing the race card although your comrades started it..

      SA Sucks - 2011-09-05 18:50

      This guy's the right person for the job. I like his stance on gays, and the fact that a married woman cannot dcry rape against her husband. It's about time the "old values" were introduced again

      settled - 2011-09-09 03:48

      Ai Zulufox, why do you make me laugh everytime you comment..Lets see..You pretend to be Zuma and hopefully someone here could pretend to be Zille and lets have an IQ Test..If you fail to answer asap, then you have no reason even to pretend to be the president cause then it explains your uneducated reasoning for backing him. P.S and I do hope you do not open another Tab to google the answers...Just Saying !!!

  • bill - 2011-09-05 16:07

    this individual should rather apply to be a tribal chief-he is certainly not academic.

      Ngqeku - 2011-09-05 16:15

      It's pathetic to hear that. He is a judge by profession and will cope well with the requirements of his new office. I'm not sure what you base you statement on,I just hoope it's not colour

      Meanleader - 2011-09-05 16:25

      @Ngqeku ....I also hope it's not based on colour , just like I hope Affirmative action , BEE , BBBEE are not based on colour .... you sound like an academic son .....based on colour !!!!

      Ngqeku - 2011-09-05 16:33

      BEE and AA are here to stay, live with it

      Komasa - 2011-09-05 16:38

      @bill 'tribal chief' what about 'commander-in-chief' the 'chief' that justify's rape, sodomy, murder, water boarding and why 'god' has helped us through these trying times.

      Neil - 2011-09-05 17:01

      @Ngqeku: Unfortunately we have to, does not change the fact that the likes of you cant do anything rather than piggy-backing on color to actually try achieve something in your little life.. Pathetic...

  • Wayne Hayes - 2011-09-05 16:07

    No #### sherlock, tell us something we don't know

  • marco - 2011-09-05 16:10

    South Africa needs its judiciary to underpin its social progress.In a country where abortion is legal,same-sex couples marry,a strong civil society and an independent judiciary lets hope this virtual unknown Mogoeng's nomination as chief justice don't undermine the country's reputation as the most liberal outpost in all of Africa.No society is static,least of all African societies. I wonder why Zuma has twice now overlooked Dikgang Moseneke,Sandile Ngcobo's long-serving deputy,for this position?Is it because he serves the people of South Africa rather than the ANC and the Zuma power clique?It seems Moseneke has the reputation for being fiercely independent and he is a former political prisoner as well.So why ditch him and nominate Mogoeng? Mogoeng is a lightweight compared with the other judges that make up the 11-person constitutional court.I guess South African democracy faces two connected fears:a social conservative backlash and a lapdog judiciary.Mogoeng is a bit of an idiot.As a prosecutor in the 1980s Bophuthatswana he was overzealous in advocating the now unconstitutional death penalty,in 2001 he ruled that a 2 year sentence imposed on a man who tied a woman to the bumper of his car and dragged her at high speed was "too harsh",in 2004 he reduced by half a man's sentence for raping his 8month pregnant wife because they were not strangers and in 2007 he suspended a two-year jail sentence against a man who had raped his wife saying he had been sexually aroused.

      SOOTHSAYER - 2011-09-05 17:07

      I'm no fan of Mogoeng, but am 100% sure that you're being selective .... all the Judges we have in that bench are human being, surely they've made a lot of error judgements!! I don't want to waste my time quoting Moseneke's Mistakes, and other judges Mistakes, but there was no way Nelson Mandela and Moseneke would have gone to Prison, if the Judges where sober like Judge Motata ...........

      Totman - 2011-09-05 17:41

      @SOOTHSAYER. Thats the point!!!! Do not make the same mistakes again!!!!! I presume you now understand why the people is not happy with the president's choice.

      marco - 2011-09-05 18:23

      @SOOTHSAYER It's judges on the bench not "judges in that bench".I guess there are a few things you can't get from Fortune-telling hey SOOTHSAYER?And no Oracle I'm not being selective here but factual and rational.No doubt in SA too their are many lawyers and justices who aspire to being one of the 11 Constitutional Court Justices,however the Constitutional Court Chief and his/her position must remain scandal free,have great integrity and should stay abreast of the decisions he/she makes throughout their careers. As I said before,Mogoeng has so far had a troubling record as a judge.The incidents I posted above and the subsequent judgments Mogoeng gave out were made in a country and society where violence against women is catastrophically high.Least of all because of the way the legal gender equality has challenged the patriarchal control that men have traditionally held over women. Mogoeng has given many a time his dissenting opinions in the past,which only highlights his own unnerving attitude towards social change in South Africa.For example:Mogoeng dissented with a majority judgment that protected the Citizen newspaper's rights to freedom of speech when it was sued by an ANC freedom fighter,Robert McBride after it had described Robert McBride as a "murderer". Mogoeng invoked "traditional values and moral standards"when he wrote, McBride's dignity trumped the Citizen's rights to freedom of speech, even though there was no dispute of the facts.

      marco - 2011-09-05 18:39

      Mogoeng actions are shorthand for opinions frequently expressed by the ANC leaders when they are criticised and that is:"public criticism is counter to "African" norms and traditions,and is the mark of a society that has become too westernised". Such a patriarchal world-view where a married woman that publicly accuses her husband of rape would be seen as akin to lets say the Citizen newspaper's debasement of a former freedom fighter's dignity. Both the married woman and the Newspaper behaved in an un-African manner and has taken freedom too far. Other dissensions by Mogoeng are:He one time dissented from a constitutional court majority decision that calling someone "gay" could not be construed as an insult given that homosexuals are constitutionally protected.He then refused to give his reasons,which lead his critics to conjecture that it might be linked to his position as a Pastor in an Evangelical mega-church. Mogoeng is a rural boy at best who wants to adhere to "traditional" values.South Africa wants erudite cosmopolitans as Constittional Court judges or chiefs that are commited to universal standards of human rights and the rule of law and to which all local,political and social customs must adhere to. We South Africans are citizens of the country rather than just subjects,which means we must see ourselves and our values reflected on the judicial bench.The onus is now on Mogoeng to prove that he is neither an atavist nor a yes man,BUT THE RIGHT MAN FOR THE JOB.

  • abg100 - 2011-09-05 16:13

    Its like everything else in this country-the zuma regime forces its chices on us and we are voiceless. Dont tell me mogoeng is the only person capable of filling this position-RUBBISH. After seeing him on t.v. and listening to his replies to queations all i see is a smooth talker who is arrogent and full of himself. If God told him he should have the position then im sure his 47 page answer "book" wasnt needed.There is an old saying that when a person is angerd by whatever you are asking him,its normally the truth and the truth hurts!!!

  • SolomonMagalefa - 2011-09-05 16:16

    I have 2 concerns about the process. Firstly, as there were no there nominees, it was always clear that, no matter how Mogoeng conducted himself, there could only be one outcome. Thus, no matter how well he answered or what his credentials are he has effectively been handed a poisoned chalice. Secondly, the JSC commissioners seemed (in most part) to not have entered the process with an open mind. They were either blatantly pro or blatantly anti (the appointment). Thus, instead of interrogating the issues, they either stroked his ego or went on full out attack. Lastly, I would like to add that this appointment provided the opportunity for appointing somebody who would be able to articulate South African judiciary positions globally. Sadly, Judge Mogoeng won't be doing that as he stated that "writing is not his thing". Nonetheless, I guess this is Africa and we do things differently here. I just hope he is up for the job.

      SolomonMagalefa - 2011-09-05 16:17

      Oops *other nominees

      Striker - 2011-09-05 16:35

      i agree with you 100% it was more a game of cat and mouse for the pro and anti interviewers. but the only thing i cant wait to see how the working relationship between moseneke and mogoeng is going to be like.

      voltaire - 2011-09-05 16:36

      Well said. I'll add that, as far as rape is concerned, the things he lists as making some rape cases worse than others ("literally tear them apart mercilessly" and others I've seen elsewhere) are actually seperate crimes and should be charged and judged as such.

      Sooth Slayer - 2011-09-05 16:46

      Solomon, now wouldnt it be folly and confusion on Zuma's part to nominate several people for the same post? That is besides the point though. the real issue here is Jacob Zuma is a lame duck president, who has to consult people who do not have a mandate from the people (the opposition) before he makes any decision. I would like, one day for Zille and company to take responsibility for some of the mistakes Zuma's government would have made, seeing that they are also being consulted for almost everything. Lastly, all this opposition against Zuma's choices are not about the constitution but rather to emasculate and frustrate Zuma into doing something drastic - like changing the constitution or ignoring it!

      marco - 2011-09-05 17:05

      @SolomonMagalefa You a bit of a two-faced,double-tongued,deceitful,double talking,and deceptive son of b***h ain't you? -pardon my FRENCH. Let me remind you as to why that is.You wrote yesterday under the News article "Mogoeng 'approved' as chief justice" : "I think it's a brilliant choice.A young uncontaminated free thinker is just what we need in the judiciary right now.Whatever the motives of President Zuma with this nomination,the transparent JSC process unquestionably demonstrated that Judge Mogoeng is the right man for the job!" All that bull**** of "uncontaminated free thinker","the transparent JSC process" and "Judge Mogoeng is the right man for the job" what was that garbage you wrote yesterday for then when you come here today and bitch about "no other nominees...there could only be one matter how well he answered or what his credentials are he has effectively been handed a poisoned chalice...JSC commissioners seemed(in most part)to not have entered the process with an open mind." Tell me something do you kiss your mother with that deceptive mouth of yours you FROG?

      Totman - 2011-09-05 17:25

      @Sooth Slayer. Why do you always blame opposition when they question something. Do you not understand the system? Do not understand their role? This law was formed by all parties involved with the ruling party having the most say. Even if they want to force a law through they can do it. Is it too much effort to follow the system? Is it too difficult for you to understand? Why must an opposition party take blame for something when the ruling party forcing laws through and applying it the way they want? It is only when leaders are lazy or having an alternative goal that they complain on pressure from outside there wish list. Solomon's remarks are spot on. I red a couple of good ones today. He is having a bit of a problem with his keyboard,[lol] but you can rather take note in what he is saying than firing with blanks in the air. Solomon, stop worrying on spelling and rather keep the spot on remarks flowing. :)

      jbjoe - 2011-09-05 18:09

      ha ha nice one marco....sorry solomon, im taking my thumbs up back and exchanging you a thumbs down in return...have a nice day

  • Pryce Johnson - 2011-09-05 16:16

    I am so sick of this self proclaimed expert that knows more than anybody about everything. The arrogance of this so-called expert is nauseating, tiresome and boring. It would be nice if the media could find another "expert" to quote sometime.

      voltaire - 2011-09-05 16:41

      Here is his CV Feel free to point out the bits where he does not qualify as an actual expert, but rather as a "so-called" expert.

      voltaire - 2011-09-05 16:47

      Oh And here is his blog. Looking forward to your justifying your position with some good arguments.

      voltaire - 2011-09-05 16:52

      jbjoe - 2011-09-05 18:12

      pryce, you are always free to make up your own opinion if you believe you know the facts...and for those people who cannot and will not 'pick a side', this expert is here to help you make your decision....alternatively buck out a few grand and go see a political expert of your choice

  • Rightbydan - 2011-09-05 16:17

    The very first time I have read anything about de Vos that makes sense.

      zulufox - 2011-09-05 16:20

      really? it makes sense because it represents your views? or does it make sense because it makes sense... there is a difference you know?

      Totman - 2011-09-05 17:58

      Come on zulufox. You just made a statement, built in a question, that could have been applicable on you as well. So if he agreed with you he could have made sense seeing it is your view as well. You right, there is a difference. The difference is when your viewpoints are different and not the way you questioned it on the basis if he could understand the difference, because your's are different and you belief your's are right. Still with me? Do not answer. I can feel it is going to get complicated for some and I am going offline for a while. Rather think of what I have said.

  • Newsferret - 2011-09-05 16:18

    Oh come let us be honest, Zuma is arranging his future protection. We are part of Africa after all.

  • Tracey - 2011-09-05 16:19

    Only he was nominated, so who else was there to endorse? Zuma has made a mockery of our highly regarded constitution by entrusting it to a junior with questionable credentials who is 'not passionate about writing', doesn't like 'words you look up in the dictionary' .. in other words uneducated.. But then neither is our president

      zulufox - 2011-09-05 16:36


      Shadoz - 2011-09-05 17:04

      True Tracey but it should be more like almost the whole ANC that are uneducated and say the most stupid things that make you loose all hope of a better tomorrow. There are a few educated people but the ANC but they are always left in the background trying to fix the damage that the likes of Zuma has caused.

      Shadoz - 2011-09-05 17:07

      zulufox maybe someday you will realize that you have made a mistake by standing so strongly for corruption. Maybe oneday when all us whiteys decide enough is enough and stop paying taxes and start marching in the streets to claim back our financial freedom. Maybe oneday when you and your family have nothing left because we have left and your government has looted everything else. YOu may wake up that day.

  • Softy - 2011-09-05 16:19

    zulufox....please comment sensibly and not politically if you want to make a decent contribution

      jbjoe - 2011-09-05 18:14

      dont use the word 'contribution'...draw pictures for him

  • truth - 2011-09-05 16:20

    Your article is misleading, once again the media proceeds with their agenda to discredit Judge Mogoeng. You fail to mention all the people who prior to the interrogation already decided that he must not be judge. I wathed both days of interrogaiton live and it was clear that the vast majority of the JSC started off by trying to discredit him. After a while they saw that all the lies in the media was no true and some of them clearly changed their view of the judge. I also stayed objecive and since I am also an attorney, it was clear that this guy is fit and proper. And by the way, I am a Afrikaans speaking white person who voted DA, just for those who will be sceptical. Media and everyone reading, please stay unbiased. Lets judge objectively!!!

      jbjoe - 2011-09-05 18:17

      what about the quoted sections?...this man might be 'fit and proper' but is he really Chief Of Justive material when you look at his quoted words in the news and the actual footage/clips on youtube?...I THINK not

      truth - 2011-09-06 08:36

      Jbjoe, did you watch the whole interrogation? It is easy to quote out of context and something the media excel in doing. I see you only look at the clips from youtube, again, out of context.... and unfortunately every one is making the same mistake. Like Mrs Zille, I seriously doubt whether she was able to watch the whole interrogation and now, because of political pressure she decides to object to his appointment. And even if she did view the whole interrogation, she was most probably blinded by prejudice since Mrs Zille made her intentions public even before the interrogation. Again a sign of prejudice, no objectivity. In regards to "Fit and proper" the following. The aforementioned quote was the criteria to be used by the JSC and that is the only criteria they had to look at. The JSC decided he is fit and proper for the position, and anyone who stayed objective throughout the interview would have decided the same.

  • Agwambo - 2011-09-05 16:21

    Why should the expert be a DA supporter. Ask some experts from Gugulethu and Soweto and lets hear what their opinion is?

      charley - 2011-09-05 16:30

      Are there any?

      Agwambo - 2011-09-05 16:40

      Charley, Malema wants to create that platform by spreading the wealth which your forefathers stole...

      Komasa - 2011-09-05 16:50

      @charley the superior without an eduation because all blacks are 'dumb'. If you don't have an education why throw race at it, because it makes you feel comfortable.

      Shadoz - 2011-09-05 17:28

      wow you are really that blind to corruption and theft do you really think malema cares about you and your people? the only thing he cares about is himself and his tenders. Don't you think by now with all the tender money he has stolen he would have helped you and your people yet i do't see anything postive that he has done. He is just another greedy african dictator. We as whites will leave you with nothing to steal then what?

      Totman - 2011-09-05 17:32

      @charley. Yes, there are, but it is irrelevant. Get a few of the experts commenting and than formulate your own opinion. @Agwambo. Most of them moved to Sandton,[lol] but I believe there were some saying the same thing. To me it does not make a difference. I decide if I agree with them or not and purely based on what they say.

  • s r - 2011-09-05 16:26

    It is so clear that the JSC is pro-Zuma, with the Hlope ruling, etc. Just another organ of this Banana Republic.

  • truth - 2011-09-05 16:40

    I really respect Prof De Vos, but he is just another one of the many who formed their opinion in the news papers last week even before the iterrogation by the JSC. Therefore his opinions must be listened to knowing that he is not judging objectively.

      Victoria - 2011-09-05 17:21

      You claim to be an attorney, yet your spelling and grammar is atrocious. Troll alert???

  • sipholess - 2011-09-05 16:41

    Why are people coplaining about this guy, he's just one out of thousands of parasites that are in some form of power in SA. When 90% of the apples in a barrel are have a compost heap ! The paradise that was South Africa is long gone.

  • Striker - 2011-09-05 16:42

    eish talk about the presidents prerogative! im not against mogoeng per se but i just have a problem with leaving out moseneke as a nominee i think he should have been most likely to be appointed than the current appointment. with that said i'd like to congratulate him and hope he makes us proud by "reflecting" on his past misjudgements and not letting history repeat itself.

  • raspatin - 2011-09-05 16:43

    Thanx pryce jonson,you 've gocheeet !

  • braamc - 2011-09-05 16:56

    Interference by Jacob Zuma, very clear.

  • ianeen - 2011-09-05 17:07

    You are missing the point if Zume is taken to court again after his term as president he will need people in very high places to get him off, Zuma may be made to face his crimes and he will not have the ANC protecting him, in fact it will help him if the ANC want to get rid of him once and for all.

  • Bok Fan - 2011-09-05 17:08


  • johnnoh - 2011-09-05 17:36

    I would have to agree with Dr. Adam Habib. The JSC looked like idiots. Their questions were not probing at all and they did not look like they were qualifies to be appointing the next Chief Justice. Justice Mogoeng cam eacross as beong arogant and bored at some stages but his answers were coherent and concise and he definitely handled himself as a better candidate for Chief Justice than his interviewers did as members of the JSC. He might be conservative, but he can handle himself infront of a panel and can apply his mond to questons. Not the best candidate, I am sure, but a hell of a lot better that he has been protrayed in the media.

  • StillAmazed - 2011-09-05 17:54

    De Vos, who is apparently the only law guy on Media 24's Rolodex, does once again apparently not understand the meaning of democracy, or the SA version thereof. The dear judge clearly represents the views of the majority of South Africans, in the same way that Zuma does. No amount of complaining by intellectuals will change that.

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  • Meshack Letswalo - 2011-09-06 07:34

    "The problem with the way things have transpired now is that the nominee is tainted in the eyes of majority of the people." Which majority professor? And from when do you speak for the majority?

  • Phemelo - 2011-09-06 10:32

    Until such time Mr Shower-head stops fiddling with processes beyond his comprehension, the independence and integrity of our country's judicial system will remain compromised. Give the president some baby oil,or play some music so that he can focus on what he knows best & leave important issues to competent people

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