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The experience of the anointed one

The presidency has been quick to stress the length of the experience of the 50 year old new-comer to the Constitutional Court whom it favours to succeed retired Chief Justice Ngcobo. It is the quality and nature of the experience and experiences of Mogoeng Mogoeng that ought properly to weigh more heavily than their length. Serving interminably in a quiet backwater like Mafikeng is not adequate preparation for the exacting duties that will befall anyone who is Chief Justice of South Africa (SA) during the next ten years. All the more so, if, as is planned, the Constitutional Court becomes the apex court in which complex commercial, maritime, patent, tax, insurance, company and competition law appeals are finally determined. There is little exposure to any of these in Mafikeng. In aviation circles pilots of Piper Cubs, irrespective of the mere length of their experience, are not made Airbus captains overnight.

The presidency ought to have conducted what electronically savvy lawyers call a “Jutastat search” on short-listed candidates names before picking any candidate, and ought also to have picked its candidate only after consulting with the JSC and political party leaders, not before, as has been done yet again, despite the criticism of this modus operandi that was aired when Chief Justice Ngcobo was appointed by the same president in the same cart-before-the-horse way.

A computerised search of this nature is a means of working out the pedigree of anyone whose name may reasonably be expected to be found in the law reports. These reports are the lifeblood of legal practice. Assembled by professional editors they showcase the fruits of the labours of lawyers, both as litigators and as judges. As the editors have no political axe to grind and wish to put only the best jurisprudence into their publications, the results of a Jutastat search are an objective and instructive way of determining the quality of the experience of any individual involved in the law and certainly any judge destined for the highest judicial office in the land.

If one conducts a Jutastat search in the SA law reports on the name of the presidential nominee a disappointing 46 hits emerge, the vast majority of which reflect him as a concurring member of a Bench either in the Constitutional Court or the Labour Appeal Court or in what is now the North West High Court. This contrasts sharply with the 258 hits that emerge when the name “Moseneke” is inserted as a similar query in the search engine of Jutastat.

Since his appointment in the Constitutional Court the nominee has written only three judgments for the court and one dissenting judgment of his own in the McBride case 2011 (4) SA 191. The three unanimous judgements penned by him are Viking Pony 2011 (1) SA 327, Betlane v Shelley Court 2011 (1) SA 388 and Malachi 2010 (6) SA 1. That, beside the mysteriously and unprecedentedly reasonless dissent in the Dey defamation case, that has attracted so much public interest (and fearfulness in gay communities) is the sum total of his contribution since elevation to the Constitutional Court. He was part of the minority in Glenister (only two of whom survive since the retirement of Ngcobo CJ and the return of Brand AJ to the SCA) but in that case the minority judgement was that of the retired Chief Justice, in which he concurred, as is evidently his habit.

A reported Labour Appeal Court case in which he actually wrote the judgment could not be found in the SA law reports, there are a few in which he simply concurred in the judgment of a colleague.

His career as a practitioner at the Bar is reported as losing counsel twice – 1994 (3) SA 89 and 1994 (2) SA 375, whilst he was on the winning side once in 1997 (2) SA 423. There is no evidence that he ever appeared in the Supreme Court of Appeal or the Constitutional Court as counsel, nor does he appear to have taken silk – the North West Bar will be able to confirm this.

Only one of his judgments as a High Court judge sitting alone is reported, BMW Financial Services 2009 (3) SA 348 – a simple summary judgment application in which he gave leave to defend and then, seven months later, produced a four pager in which the relevant statute is extensively quoted.

In appeals against judgments for which he is responsible his decision was confirmed in part by the CC in the Chief Lesapo case 2000 (1) SA 409 and held “correct for somewhat different reasons” in the Western Cape Government case 2001 (1) SA 500 (CC). In the Union Spinning matter the Full Bench of which he was a member was overruled by the Supreme Court of Appeal at 2002 (4) SA 408.

Those are the slim pickings from the SA law reports. The rest of the 46 hits are mainly as a passively concurring member of a Bench with a couple of references to the BMW matter by puisne judges. This is not the stuff of which good Chief Justices of the calibre to which South Africans have become accustomed are usually made, especially not if the Constitutional Court is to become the new apex court in the next few years.

The sad tale of the nominee allowing his wife to prosecute in a criminal appeal before him (also overturned by the SCA, but apparently not a reported case) suggests strongly that this young man is not the right person for the job, not yet anyway. On being questioned about his failure to recuse himself, when he obviously should have done so; his weak and unsatisfactory response was that no one had asked him to do so. How can a proud, impartial and independent judiciary be led by the perpetrator of so blatant and fundamental a breach of judicial ethics?

There is a need to return to the drawing board in the light of the facts summarised above. The matter is not urgent, the Deputy Chief Justice is perfectly capable of running the court until a suitable successor to Ngcobo CJ is identified and properly consulted on by the JSC and political parties in a manner that is procedurally consistent with the requirements of the Constitution. The way the president is going about the task at hand is destructive of what the Constitution sets out to achieve by requiring that an appointment of the Chief Justice be preceded by consultation. The folly of the pre-emption of constructive debate in the consultation process caused by deploying the perverse process adopted by the president is demonstrated by the ugliness of the firestorm that has been unleashed. A constitutionally compliant process does not mean: “Here is my candidate, what do you think?” It involves a fact gathering and qualitative assessment after which an appointment follows. Because the president’s conduct is inconsistent with the Constitution, it is invalid and can be struck down as such. More haste and less speed are needed.

Paul Hoffman SC
19th August 2011


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Daily Maverick
17th August 2011

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