Presidency defends Mogoeng nomination

2011-08-18 07:27

Johannesburg - The debate on the country's new chief justice must not impugn the dignity of the judiciary or demean the integrity of the nominee, the presidency said on Wednesday.

"The facts regarding suitability and experience should not be disregarded in the debate," said President Jacob Zuma's spokesperson, Mac Maharaj.

"The presidency reiterates its respect and high regard for the judiciary and for the Constitutional Court as an arbiter in disputes in our country."

Common decency

Maharaj said Zuma welcomed the debate but there were "disappointing inaccuracies" and "distortions" in the response to Zuma's nomination of Justice Mogoeng Mogoeng as chief justice.

"These need to be addressed without delay to enable the debate to continue based on factual information.

"The debate must be balanced and be within the rules of common decency.

"It must not be designed to demean the person of, and question the integrity of the president's nominee, Justice Mogoeng."

Maharaj said that according to the Constitution, "any appropriately qualified woman or man who is a fit and proper person, and is a South African citizen, may be appointed as a judicial officer.

"In addition, at all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court.

"The four must have been judges and not judges of the Constitutional Court per se.


"Therefore, Constitutional Court experience is not a criterion for appointment. By implication it is not necessary that persons appointed as Constitutional Court judges should have been judges before appointment."

He said they could have been legal academics, advocates, attorneys or directors of nongovernmental organisations.

"This has happened before, looking at the experience of the country's post-apartheid chief justices, some of whom had no experience as judges, but who acquitted themselves in a distinguished manner."

Maharaj then listed the experience of previous chief justices, Arthur Chaskalson, Pius Langa and Sandile Ngcobo.

"... at the time of their appointment, both former Chief Justices Chaskalson and Langa were not judges.

"Former Chief Justice Sandile Ngcobo was first appointed as a judge in 1996. He served as Western Cape High Court Judge, Labour Appeal Court judge, Acting Judge President , and a judge of the Truth and Reconciliation Commission Amnesty Committee. He was later appointed to the Constitutional Court in 1999."

He said Deputy Chief Justice Dikgang Moseneke became a high court judge in November 2001 and was appointed to the Constitutional Court a year later.

"Justice Mogoeng has been a judge since 1997 and is far senior in terms of judicial experience than most judges who are in the Constitutional Court currently, with the exception of Justice Johan Froneman who was appointed as a judge in 1994, and Justice Edwin Cameron who was appointed as a judge in 1995."


Opposition parties appeared unhappy with Zuma's nomination of Mogoeng as chief justice, but it received the ANC's support.

The Congress of the People on Wednesday said Mogoeng lacked the necessary experience.

Replying to Zuma's letter to party leaders asking for comment on his choice, Cope leader Mosiuoa Lekota said Cope had carefully considered all the information available.

"And we are of the opinion that, notwithstanding his academic qualifications, Mr Justice Mogoeng does not possess the requisite amount of experience on the bench.

"It is our humble submission that there are a number of highly capable legal minds with extensive experience on the current bench that deserve prior consideration," he said.

"This will go a long way towards sustaining the distinguished standing our judicial bench enjoys at home, in the region, and beyond.

"Without any prejudice to Mr Justice Mogoeng, we humbly urge that you reconsider and take another look at all the members of the present bench," Lekota said.

Zuma nominated Mogoeng on Tuesday to replace former chief justice Sandile Ngcobo, whose term of office expired on Sunday.

  • Chris N Greenland - 2011-08-18 07:37

    Having been in law for over 35 years, including as a judge for 7 years, I am able to confidently say that Justice Mogoeng is, with respect, a "toddler" compared to so many other suitable potential candidates. In accepting nomination he is displaying the same bad/incompetent judgement he exercised in making a homophobic ruling without giving reasons and presiding over a case that had to be then annulled. To say this is not to bring Mogoengs's integrity into disrepute. It is to rightly point out badly flawed functional integrity. Our President continues to be very badly advised. To once again snub Deputy Chief Justice Dikgang Moseneke is so irrational as to inevitably bring both the judiciary and the country into disrepute. Nothing else will be achieved by the appointment other than to create functional tensions in the Constitutional Court on account of this aberration. It will simply make the work of the Court more difficult as will always be the case if an important entity lacks leadership of the appropriate stature and credibility.

      Lab-Rat - 2011-08-18 08:24

      Very well said Chris, I couldn't agree with you more.

      Komasa - 2011-08-18 08:25

      Chris we need to move away from appointing people who served the liberation struggle and bring in people who have developed in their respective field post 1994. With all due respect, based on your years of experience, I think you favour the 'old' stalwarts of your profession and maybe some young 'blood' will bring some fresh thinking to our judiciary system.

      Brainbow - 2011-08-18 08:33

      Hear, hear!

      sganja - 2011-08-18 08:34

      Well said Komasa let's accept and support the new chief.

      Chris N Greenland - 2011-08-18 08:42

      Komasa --- I certainly did not serve in any struggle although, like all good folk, I identified with it. The flaw in you thinking, with respect, is to imagine that justice mutates. It does not. It remains constant an inviolate. The imperative is that our judiciary defends our Constitution and also human rights as espoused under the UN Charter. As always, you need the best people to do the job, without "fear favour or prejudice". Appointing the wrong person means that the requirement of "without fear, favour or prejudice" is being submerged by "other" considerations. Also there is no such thing as "fresh" thinking at this level. It has to be the "right" thinking. Given our situation it is often extremely difficult to resolve vexed issues. Just as you need the best surgeon to save the life of your child, in a challenging procedure, you need the best jurists to protect that child's human rights. "Fresh" does not come into the equation. It belongs to the realm of emotive irrationalism.

      cj - 2011-08-18 08:52

      Komasa and Sganja Having seen the Concourt in action from close up, I can tell you that it is obvious to anyone watching that court in action that Justices Moseneke and Cameron are the strongest and most brilliant legal minds on that bench. Their integrity is beyond reproach. Justice Moseneke would have been the most obvious choice, having served as Deputy under two Chief Justices now. For him to be overlooked sends a very clear signal to the country that this appointment is based on political considerations, and that Zuma does not give a damn about what right minded people think. There will now always be a shadow of a doubt over Jusitce Mogoeng's impartiality, not to mention his competence given the examples that Chris Greenland pointed out. This is very, very bad for our country. Zuma's presidency is marked by poor appointments, aimed at suiting his agenda rather than merit.

      Alpahbrutus - 2011-08-18 08:59

      @Komasa Comrades, when dealing with weighty legal matters, experience counts far more than "fresh ideas". The Constitutional Court is not an advertising agency and interpreting the statutes and the constitution has nothing to do with "fresh thinking". What is more, this should have nothing to do with who was part of the liberation struggle and who wasn't, but rather who has the experience and integrity to most effectively fill the post of chief justice. Mogoeng squared simply does not have what it takes at the moment and that's a fact, especially in light of the alternatives. Once again Zuma duffs it. Perhaps the honourable justice is just what the President is looking for in the head of the judiciary .... an impressionable person who owes him a favour.

      Frank - 2011-08-18 09:04

      I agree Chris. Experience is definately necessary. Wisdom comes with age and developed through experience, and is not easily obtained.

      embargo - 2011-08-18 09:06

      Agreed ENTIRELY Adv. Greenland. Eventually the realization of PROPER EXPERIENCE will sink into the equation, whether it be Judicial or Production, without it one will tend to, if not definitely, err in regard to suitable completion with dire results as the outcome. Encouraging was to see the appointment youthful, discouraging the apparent facts of inexperience & per your learned submission of bad/incompetent judgement in making a ruling. What recourse will a person or body with legal rights have when the law per the PRESCRIBED Acts & Constitution, all having followed essential logic in being formed(???), when apparent ineptitude seemingly continues to prevail? Furthermore, should there be a court for recourse, how will the majority of the progressively unemployed & many employed afford this avenue for recourse? My take on the subject: Judicial experience per an entirely unblemished record of at least 4 years for ALL wearing silk & or sitting, conforming with non-discrimination so quota's plays no part, irrespective of court but especially this, should be a minimum requirement for all acting as Judges without forgetting the contributions of advisors who should be seen as 'secondary' to the Judges. Whilst at it, perhaps a review of all laws would be recommended as, shouldn't they be supportive of one another as best possible. What appears in the Constitution applies to all laws as well as behaviours exercised in the country?

      George - 2011-08-18 09:06

      So Chris you served as an apartheid judicial officer. SA was a criminal state practising apartheid and in order to pepper some normality to it some of you were the judicial officers enforcing and enacting apartheid laws. This reminds me of judges that served under Adolf Hitler. They were responsible for interpreting and enforcing Nuremburg rules which effectively delcared jews to be sub-human.

      Blougroen - 2011-08-18 09:23

      So the question remains - why would you not appoint the most experienced person to the job . . . . for political reasons, for control reasons, payback reasons, sheer stupidity reasons, surrounded by incompetent advisors ???? . . . . why why why ? For me, there seems to be nothing "democratic" in how this decision was made - lets hope the JSC can take it to another level . . .

      Chronoman - 2011-08-18 09:28

      George, jys geswaai.

      Chronoman - 2011-08-18 09:29

      Adv Greenland, is there a chance that this might be an attempt to pave the way for a change or changes to our Constitution?

      Chris N Greenland - 2011-08-18 09:50

      @George --- sorry to disappoint you. I served as a judge in Zimbabwe and as an Acting judge in the Eastern Cape and if I may say so, have a proud, if not exceptional record. (And I am supposedly Black) This propensity of immediately seeking to "play the man, instead of the ball" is now a standard ploy for those who seek to defend that which is plainly wrong.

      Chris N Greenland - 2011-08-18 10:00

      @Cronoman --- No, I do not think there is an agenda to "change the Constitution". However, inferentially, one has to conclude that 1. there is an agenda and 2. it is not a good one. It all starts with the fundamental and sacred creed that "justice must not only be done, it must also be seen to be done". That test cannot be satisfied here ... just as it failed hopelessly when Justice Mogoeng made the two judicially unconscionable blunders I adverted to. The perception/inference here is that this has more to do with "politics" than "justice".

      Oom Filimon - 2011-08-18 10:21

      @ Komasa & sganja - you guys cannot see the wood for the trees. As I posted on a previous occasion.....if zuma nominated a tub of cow-dung you wopuld support it. Clearly - zuma wants someone who can be easily manipulated and look after only the interests of the bruddas from da hood......anc hood.

      George - 2011-08-18 10:44

      If Chris is a former judge, then i am also a former astronaut. Anyone can be anything on bloggesphere world populated by armchair keyboard warriors. No where in the constutition does it mentions that the chief justice has to be a former judge or a judicial officer. Most blogs here including Chris are trying to impose their own criteria and conditions on the job profile of the chief justice. The constitution spells that "any appropriately qualified woman or man who is a fit and proper person, and is a South African citizen, may be appointed as a judicial officer" anything else from bloggesphere is conjecture, rumours and imposition of new criteria for the job of the chief justice by bloggers.

      Komasa - 2011-08-18 11:03

      Adv Greenland we will agree to disagree but thanks you have got some healthly debate going here for a change.

      Chronoman - 2011-08-18 11:36

      George, I think you should ponder the inferred significance of "a fit and proper person" a little more. Why don't we settle for the ideal and not for the ordinary, here and in all other cases?

      Chronoman - 2011-08-18 11:40

      It seems to me that, if there is one area in which our president has really left his mark, it is on our judiciary. It's just a pity that the mark is a series of stains and not adornments.

      Chris N Greenland - 2011-08-18 13:04

      @George --- if you come down from the astrophysical world your mind is wondering to and just read the South African Law Reports, you will find proof beyond doubt as to whether I was a judge or not -- and what sort of judge ... "jurisprudentialy speaking".

  • Derrick - 2011-08-18 07:45

    Lets fight corruption, well... only if i'm happy to fight it.

  • Stuart - 2011-08-18 08:10

    is he related to JZ in some way?

      sganja - 2011-08-18 08:33


      Vince York - 2011-08-18 09:25

      Probably not blood related but "soon to BE RELATED" if he accepts the appointment. Remember the black plastic bags / cooler boxes / Trust Fund laundering / and finally Hot & Death Squads syndrome so prevalent.

  • Baas Frik - 2011-08-18 08:12

    The problem is not the man chosen but rather the way it was done. It was against the letter and spitit of our constitution and is therefore unconstitutional. This is the second time the President fails in this regard. We know Zuma is dumb but surely he must have some advisors with more potatoes in there heads than himself?

      Baas Frik - 2011-08-18 08:14


      Khanya.McCutha - 2011-08-18 08:31

      Well sad Baas

      sganja - 2011-08-18 08:33

      Dear Baas Who do you nominate if I can ask? Because you people always complain.

      Tereblanche - 2011-08-18 08:39

      baas frik, you continuos attack of the person of the President from all sides of commetns be it timeslive and news24 is rather ill informed and informed by hatraed of the man. Read your Constitution in terms of section 178 sub section 2 goignt forth, it will advise you that the powers that the President pocess are at his/her discreation whomever he/she chooses to appoint. We seems to be blinded by the fact our favorite candidates are not given the job of the day and attack the decision, it will never saitisfy all of us. Today we have certain white judges in our benches that served and interpreted apartheid laws and convicted the very freedom fighters that kiberated you and yet you hardly hear us(previously oppressedpeople) complaigning about them. We accepted their ill past and moved on. There are naive people out there thinking that politics are no longer influencing everything we do be it socially, economically and otherwise, we must start to accept it and move on. As for you sir i ramin doubtful of your interllectual capacity to engage in substantive debate with no insults.

      Grant - 2011-08-18 09:20

      Treblanche - I dare say that you might have something of value to add to the debate but your spelling is so bad that it makes reading your comment too much like hard work to bother with. Try using your spell checker.

      Blougroen - 2011-08-18 09:26

      @sganga - "You people . . . . " whoaaaaa how the wheel has turned But you did ask - Dikgang

      sganja - 2011-08-18 09:31

      Blougroen Ok thanks.

  • clive.s.khumalo - 2011-08-18 08:15

    @ Chris pse address the facts put by Maharaj -Mongoeng became a judge in 1996 and Moseneke only in 2001 and he is the second most experienced judge after Judge Froneman?

      Tebza - 2011-08-18 08:57

      Well said Clive. Let Chris adress the 2 points you highlighted and then will we listen to his comment

      Chris N Greenland - 2011-08-18 08:58

      clive.s.khomalo -- on the evidence, the reality is that he should not have been appointed as a judge. The appointment certainly had little to do with judicial competence but "other" considerations as is now again the case, with respect. The two instances of failure I have adverted to are so bad as to be "judicially unconscionable". I was declined appointment in terms of the then prevailing culture even though my record (judicial experience and input as an advocate and as a judge, as reported in the Law Reports) far outmatches Justice Mogeoeng's. I would never even start to think I am in the same league as some of the present crop of Constitutional Court judges. As to the the culture that has prevailed as regards appointing judges see - %//

      Jack - 2011-08-18 10:24

      @Chris... Please answer the question.. 1. Is it true Mongoeng became a judge in 1996? 2. Is it true that Moseneke became a judge in 2001? 3. Is he the second most experienced judge after judge Froneman? Clive did not ask for a monologue on your experience.

      Chris N Greenland - 2011-08-18 10:56

      @Jack --- The answers to questions 1 and 2 are true as far as I am aware. The answer to question 3 is probably No, as experience must include all judicial experience -- not just at the Constitutional Court. The fact that he has been a judge since 1996 begs, rather than answers the question as to whether or not he is the most appropriate candidate. As already said, but for "other" considerations he would not have been appointed in the first place. He certainly should not have made the ConCourt after the 2 blunders adverted to. In addition, it is the reality that at the ConCourt he has been easily outperformed by his peers ... by a very long way. All jurists will agree that, on their records (judgements) Deputy Chief Justice Dikgang Moseneke is something of a jurisprudential giant in comparison. My record is relevant to support the credibility of my opinion. It should be quite easy for the JSC to extract from Mogoeng an admission that the 2 blunders he made are only consistent with incompetence. Then what?

      Jack - 2011-08-18 11:23

      1. Thank you for the responses on the questions. 2. Now given that you have aired your views this way, can I quote you? It all starts with the fundamental and sacred creed that "justice must not only be done, it must also be seen to be done". end quote a. Do you think by airing your legal opinion on this blog you have offered him justice? b. Is your record impecable? c. Would raising these concerns in the leagl fratenity not bound to have been viewed more psotively than on news24, where they can be viewed as a personal vandetta? d. Is any judgemnet not open to critic anyway, such that even you own judgements are as well open to the same critic? Let me wait for the looong lecture...

  • Khanya.McCutha - 2011-08-18 08:32

    Mr President you shub ashamed of yourself, every decision u take of late is accompanied by controversy.....

      Nkalakatha - 2011-08-18 12:48

      True!! This Judge Mongoeng is also old and like to sleep," eyes closed" because he is "thinking" !!!!

  • matubeng - 2011-08-18 08:33

    Don't forget the President has never been to school and doesn't understand that in some professions merit counts.@Clive.S.Khumalo... Do you believe Mac Maharaj...I think you never followed the commission that investigated Adv Bulelani Ngcuka,

  • bill - 2011-08-18 08:36

    As with all zuma appointments to key positions , qualifications and competency take a back seat to blind loyalty.His selections show him to be a self-serving incompetent man with no managerial ability, vision or grasp of what is required from this high office.As his support is racialy motivated, I ask blacks to hang their heads in shame at the damage caused by and the embarrassing performance of this amoral individual.

      Nkalakatha - 2011-08-18 12:52

      True, but ALL his public servants MUST have degrees or diplomas to be appointed in higher posts!! The Prez has got no qualifications and RUN a country !!???

  • Smindlo - 2011-08-18 08:48

    you scratch my balls I scratch yours, thats Zoomas motto!!!

  • chaminuka - 2011-08-18 09:02

    I think the President has made his point....this man is qualified. He might be a junior to some but he is qualified. The legal fraternity made a boob by challenging the extention of Justice Ngcobo's term of office instead of offering a remedy to rectify the situation. It comes back to bite you.

      blanco_pta - 2011-08-18 09:23

      I hear yo point on qualification. However, legal space requires hardcore experience hence there is a saying “in law the more u get old, the more yo services are are in demand”.

      Chronoman - 2011-08-18 09:40

      If one reads between the lines there seems to be a hierarchy that defines the status of the different judges according to their experience and achievements. Judge Moseneke seems to have been the LOGICAL person to become our new chief justice. Under different circumstances there would have been little or no debate in deciding to nominate him. Yet, here we have a situation where "fresh" criteria were used and hence this new debacle. Judge Mogoeng has already proven to his peers that he does not have "IT". Judge Moseneke however has "IT" but president Zuma unfortunately also lacks "IT".

  • simphiwe Mkhize - 2011-08-18 09:19

    The people we think have experience in their professions seem they are not its only number of years that make them called themselves highly experience. You will find they analysis are based on like and unlike the individual who make selection. I see no reason why now they blame President on selecting the Chief Justice. We must must be very careful of individual who have too much public space to blame every thing for in our country to promote their interest not country integrity. Most opposition parties seem most of the time have no vision to be in leadership of this Country they like their role of being opposition of every thing government plan to do. You must remember one thing no one born as a leader at birth all leader got the opportunity to prove themselves why don't we do the same to Mogoeng to prove himself. He have vast experience in South Africa judiciary System. You cannot fail a test without writing it

      Chronoman - 2011-08-18 09:54

      Wow, simphiwe I cannot believe this. Exceptional leaders are in fact born as leaders. You seem to suggest that it would be in order to appoint a non-proven leader in an extremely important position to see if the person can perform. No my friend, things do not work like that.

  • Vince York - 2011-08-18 09:20

    Zuma himself has caused the total & irreparable damage to this Justice's reputation and career for mysteriously and inopportunely selecting him to advance his hidden agendas instead of the out rightly expected Justice Moseneke

  • Charlton10 - 2011-08-18 09:24

    Why do showerhead has to appoint a black judge all the time, why not white, coloured or indian???

  • Mmoledi - 2011-08-18 10:08

    There is nothing president should explain or answer to with regard to his nomination for the highest judge of the country, those who are talking too much is because their candidates whom they want were not elected or appointed so that they can push their agendas. Judge Megoeng is a qualified law maker and law man so no one was born with wisdom every one worked for it so give Judge Megoeng time and space to can do his duties as appointed without criticising him nor discrediting him even before he can start working. The country is behind you Judge, get in your office and work avoid and ignore the noises that are made outside and concentrate on your job, those making noise are politicians and opposition to the ruling party so it is obvious as oppositions there is nothing they will agree with as they are pushing their agendas too as political parties.

      simphiwe Mkhize - 2011-08-18 10:47

      That is true I agree with you Mmoledi. If you don't like Zuma please don't come with baseless analysis claiming that you have experience but is only number of year you don't know anything about your job. The majority of white people are always blaming government policies but they fail their chance to implement good things in this country in the Apartheid time when they leading this country. Now we must believe their opinions based from failure governance

      crackerr - 2011-08-18 11:02

      @ Mmoledi You do not acquire your wisdom and experience while serving on the highest bench in this country. It is totally untrue that only politicians and the opposition are uncomfortable with what is taking place. Note rather the arguments and reasons for the skepticism and address them.

  • crackerr - 2011-08-18 10:59

    @ George August 18, 2011 at 09:06 Jy het jou g.t nou mooi gesien. Of hoe?

  • slk - 2011-08-18 11:11

    slk Chris,initially I thought your comment carried weight. But to proceed to say that Justice Mogoeng should not have been appointed as a judge, makes your comment more personal than an objective observation. Sure the negetive evidence you have about him clouds your own judgement. What about the positive side, that practice makes perfect, learning from past experiences? Are you saying with 14 years on the bench, he is not near perfect, learned, experienced? Yes one would hope that Dep Chf Moseneke would be the appropprate candidate. My point is dont let personal feelings cloud your sober judgement.

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