Nomination of Mogoeng Mogoeng for position of Chief Justice

by | Sep 7, 2011 | Public Interest Litigation Cases | 0 comments

Dear Mr President,

We forward below a copy of an email widely disseminated by AFT membership and on the face of it written to Anthea Platt by Dumisa Ntsebeza SC at 2:52 this morning.

In the light of the sentiments apparently expressed by Ntsebeza SC, we respectfully request you, after confirming that the offending email was indeed composed by him on his hand held Blackberry, to terminate his services as one of your nominated members of the Judicial Service Commission forthwith and to replace him with a suitably independent substitute who is able to contribute with all due probity to the constitutionally ordained functions and duties of the said Commission. You are empowered, and in the circumstances that appear to obtain obliged, to do so by the provisions of section 178(3) of the Constitution. The credibility of the JSC and its spokesman, C P Fourie, who went on television last night to say that the JSC is not a “rubber stamp”, will be adversely affected, if not destroyed, should you choose not to respond positively to our request.

Kindly acknowledge receipt of this communication and the email dispatched to you yesterday by us as well.

Yours truly,
Paul Hoffman SC
Institute for Accountability in Southern Africa


Acknowledgement from the Presidency of receipt of email


From: Dumisa Ntsebeza
Sent: 18 August 2011 02:52 AM
To: ‘’
Cc: ‘’

Subject: Nomination of Mogoeng. Mogoeng J for position of CJ


Can I request you to circulate my thoughts to our AFT EXCO and ask if they want to make a statement on the current position?

If I did not have a conflict, (JSC spokesman) I bwould go piblic as AFT Chair. And say that I’d’ve felt that, on the basis of past precedent alone, when once a nomination has been made, especially by a President, unless he has nominated a patently unfit person–a Chartered Accountant with a reputation for stealing,—— in which case even the AFT would be justified in stating that the President’s nomination is unfortunate and ill advised and cannot be supported, —–other than that,-it seems to me, it would be the correct thing to sa it IS absolutely inappropriate to second guess the President by saying there are better candidates he could have gone for, let alone getting into the indignity of a feeding frenzy that is characterised by an unprecedented savage attack on another Black judge. The last time there was such a savage attack on a nominated candidate was when the late Tolly Madala was appointed to the ConCourt in 1994. Those who still remember, he was called a little known legal nonentity! Sounds familiar?

The debate is now degenerating, and is influenced by preferences that have no relationship to what s 174(3) provides for, or even s 174(2) for that matter which articulates the criteria for the recommendation of any candidate for judicial appointment.

Nor do I agree with the sophistry that is currently being bandied about—– experience in the ConCourt being necessarily a good yardstick, much less the argument of judicial experience being a key factor. Besides, the throw away line by one colleague in the GCB email correspondence that, now, all of a sudden, past precedent must not be relied upon that much, is disturbing to me, and reminds us ominously of the wisdom of the adage that those who do not heed their own history are doomed to repeat it.

I was so hurt when one of the GCB colleagues went so far as to say Mogoeng is a legal non entity, which is why his choice would be the DCJ! I asked myself whether I can ever make common ground, given my life experience, with a colleague who calls a Black judge, given where we come from, a legal non entity. Do I overlook that characterisation of a Black judge merely because, in his place, another Black judge is being posited as a preferred candidate, put aside for the moment that in an ideal world, meritoriously, there may be sense in what this colleague is saying? Is it possible to have common ground as AFT member with what that colleague says about another Black judge? Is he saying that for the same reasons I would say the same thing of that Black judge, or is it not for me to be vigilant and ask why am I saying the same thing here with someone with whom we have, historically, very little in common, if anything at all?.

The Constitution, it seems to me, deliberately wanted to give a President much more leeway in the appointment of a CJ. He does not appoint IN consultation with the JSC and leaders in the National Assembly(NA), but merely AFTER consultation therewith. I would go so far as to say what those entities have to satisfy themselves with is whether the nominated candidate is fit and proper and appropriately qualified.

There is now a media driven debate, based on sectoral interest groups’ predilections, which seems to be seeking, distastefully so in my humble view, to show up this President as a bungler, when previous Presidents did things which were never questioned as they happened.

Right from the noble President Mandela, when the ConCourt was first peopled with judges, the only women judges were academics—,NO experience in any court—-, and look what they turned out to be! There were 5 judges appointed to that Court, who had been judges under Apartheid, 2 of them senior judges of the Appellate Division(Kriegler, Goldstone, Mahomed, Madala and Didcott). Some or all of these judges, even under Apartheid had distinguished themselves for being fairly progressive. Dicott did havoc to Apartheid Emergency Regultions. He never sentenced even ONE offender to death. I still have a speech he made in a conference before the end of Apartheid in which he called for a Bill of Rights and a property clause that would seek to redress the Apartheid Capitalism property relations. How more progressive could you get, given the times?

If, on the basis ONLY, that the LEADERSHIP of the ConCourt called for an experienced judge, and a progressive one at that, then Didcott, even ahead of Goldstone and Kriegler, should have been the leader of that Court. Mandela appointed Chaskalson[not even Mahomed!], who had not had one day’s experience as a judge, and made him the leader of the judiciary. He had never acted as a judge, let alone in a Higher Court. Look at the kind of CJ he turned out to be. He led people he had appeared before—–Didcott, Goldstone, Kriegler, possibly even Mahomed. At the time of his apointment he was more at the LRC than a practitioner regularly in the Courts. In fact, during Codesa, he was with the ANC’s Consitutional Committee.

I am personally loathe to start a drive by us and to parade our judges as though this now is a beauty contest. Everyone knows how I feel about the DCJ. You know more than anyone that I told you I am going to call him, even at short notice, to come address us, and my ears are still ringing with the pearls of wisdom he left us with at the our June AFT AGM. But the President has, in his wisdom, felt Mogoeng J is the man. Is it in AFT’s place to start joining the orgy of denigration of our own simply because our preference is not necssarily the President’s choice.? Do we sink into the media cesspool and join the chorus that is now tearing apart Mogoeng J, just because there is a DIN from others who always find comfort when Black people, and those who still seek equality,are at war, seemingly, with themselves?

Is it not time or AFT, like AZAPO, to say if it was up to us, we would have gone for the DCJ, but now that the President has consulted us about Mogoeng, we will support his nomination, subject to an interview by the JSC that would really seek to establish compliance, by the candidate, with the s 174(1) criteria,seeing he meets the s174(2) one.

I think even the DCJ would feel extremely concerned if his meritorious entitlement to higher office would be articulated at the expense of another Black person, who is a colleague of his, and who is a victim of the same vicious system that produced these distortions in the first place.

Since when do we get told by others and their media—-and let us NEVER drop our guards and pretend our views are not shaped by them——-who is the BEST for US?

The moment we, the previously oppressed, and stiil very far from being recognised as EQUALS at ANY level, start to get praise from those who otherwise still resist our claim to equality, we must be very worried, and like AZAPO, whatever you think of them, we must NEVER drop our guard.

We are NOT in the same struggle. We must not be confused as to whom our allies are. The bottom line for us should really be whether the nominee is so off the wall as a candidate, that by ANY account, we cannot support him merely because there is someone else,were we to decide,whom we would have nominated.

AZAPO—and I HOLD NO brief for them—-have once again reminded us what our responsibilities are in a struggle for equality freedom and dignity.

That is my 5 cents worth. Because I am your Leader, but constrained because I am also in the JSC, I have nonetheless decide to come out of the closet, at least to my EXCO, because of the savage attacks on a fellow Black candidate by mostly faceless people who might not have the same struggle interests that we have.

On what basis do we JOIN a chorus that says we deserve, as others are saying, the best that there is, but tell us this one is good for you because this one is a nonentity!.

Did we hear those voices back in 1994, when there were good judges—-EXPERINCED judges—your Didcotts, Mahomeds–who did not get the Presidential nod,and a Silk, right from our ranks, got appointed?

If AFT will issue a statement, and as or if I am alone in these views, as a democrat, I will understand, but if I were to be asked, that is a view I would take, namely, that if I had a choice, I would have gone for the DCJ, but that now that the President has nominated Mogoeng,[and the Constitution seems to give him that leeway],I would support the nomination if he meets the s 174(1) and (2) criteria, pursuant to an interview, which, barring a major unforeseen disaster emerging thereupon, he should get through.

Let others, the media etc, not ever having shared our own experience of pain and struggle, NOT define FOR us who is best for us! We may all appear to say the same thing, but the reasons may be very different.

Let the oppressed never be confused and be divided. Even the DCJ, given where he comes from, would be MORE saddened by that, I think, than having been overlooked, for whatever reason.

As I say, this is NOT a decree. Just a thought. Time to sleep!

Bra D

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