A tragedy of Shakespearian proportions played itself out when the Judicial Service Commission met over the weekend of 3rd to 4th September 2011 to interview the “preferred candidate” of Jacob Zuma for the post of Chief Justice of South Africa. As occurred in Macbeth, the “vaulting ambition” of the candidate, supported by a solid phalanx of deployed cadres of the national democratic revolution of the ANC who sit on the JSC, was allowed to oe’rleap itself, with potential consequences as dire for the judiciary as the packing of the appeal court by the National Party in the 1950s, in order to better achieve its political goal of depriving the so-called “coloured voters” of their franchise.
How ironical then that two members of the Constitutional Court, which the Chief Justice heads, should be present and sitting opposite each other in the U shaped configuration in which the candidate sits in the middle of the top of the U and answers questions from serious members of the JSC or listens to speeches, stunts and sweet-hearting from those deployed there to do the bidding of Luthuli House. This coincidence gave those interested the opportunity of comparing the preferred candidate and the Deputy Chief Justice, Dikgang Moseneke, on the basis of their respective performances in carrying out the tasks with which they were respectively seized.
Things did not get off to a portentous start: an attempt by the DA to revisit the issue of whether there should be more than one candidate under consideration was unceremoniously consigned to the scrapheap by the cadres, despite the efforts of the DCJ to get a public discussion going on the topic, to the appreciative applause of observers present at the one horse race. More than half an hour was wasted in this sterile debate, perhaps one that is better conducted by all opposition political parties with the President himself.
Then, after a dramatic pause, the preferred candidate himself was ushered in and allowed, with not a little help from the Minister of Justice, to labour through a 38 page pre-circulated exposition of his “response” to public criticisms of his suitability for the high office to which he aspires. Mercifully this took only an hour and a half of the five hours he self-righteously claimed to be entitled to use to rebut the criticisms that have been in the public domain for some weeks.
Then, at last, the purpose of the meeting: the actual interviewing of the candidate was allowed to begin. This process, interrupted by points of order and politicking, took from shortly before lunch on the Saturday until lunch on Sunday. It was considerably lengthened by the propensity of politicians to use the public platform provided them by the meeting to make speeches instead of interrogating the candidate. The patience of the DCJ, who chaired the meeting, must have been tried by the loquaciousness of some commissioners, but he dealt even-handedly with them all and maintained decorum in spite of some severe provocation.
The low point of the test of patience came when the candidate was attempting to fend off penetrating questions from a professor who was trying to get him to give reasons for his mute dissent in a matter involving a claim for defamation arising from the photo-shopping of the face of an educator onto a naked male torso in a pose allegedly suggestive of homosexuality. Uniquely in the annals of the jurisprudence of the Constitutional Court, the candidate had failed to give any reasons at the time of judgement being handed down. In his opening statement he had somewhat ambiguously declared:
“Perhaps, and on reflection, I should have given some reasons, no matter how superficial or brief they were. But to put the record straight, I am not against the exercise of any constitutional right, including the right (sic) of the gay and lesbian people.”
This begs the question that was asked: “What were your reasons for dissenting, then?” When he tried to squirm away, the DCJ calmly intervened, only to be told: “You don’t have to be sarcastic, sir” at which point it finally emerged that there were indeed no reasons for the dissent because the candidate admitted, somewhat belatedly, that he could not formulate any and should not have dissented.
The inference is inescapable that his dissent, now abandoned on the bonfire of ambition, was indeed based on the anti-homosexual doctrines of the church to which the candidate belongs and that, despite his oath of office, they were allowed to intrude upon his duty to uphold all constitutional rights, including those of the gay community. The exchange did nothing to inspire confidence that the candidate’s attitude toward sexual orientation is any different to that of the President. It is also unfortunate that his concession that the dissent was wrong had to be wrung out of him.
Justice Mogoeng did no better on gender sensitivity. It emerged that he unfortunately overlooked the arrival of our new constitutional order which guarantees freedom from violence, the passing of minimum sentence legislation and the ratio in the leading case of S v A in 2001 when he sentenced a rapist in 2004. This is not jurisprudence of a standard that South Africans have justifiably come to expect from their Chief Justices. Nor is it of any comfort that S v A remains overlooked in the “response” given at the outset of the JSC hearing by Justice Mogoeng. The excuse proffered that he did not have access to the case simply does not wash.
Indeed, the combative tone adopted toward the legitimate concerns raised by gender activists is in and of itself a reason to doubt that the professed gender sensitivity is anything other than evidence of the paternalistic and traditional attitudes of which they have justifiably complained.
The attempt to equate a court appearance of his/her offspring before a judge with the appearances of Mrs Mogoeng is the high water mark of the response to queries raised about the candidate’s commitment to judicial ethics. Pillow talk is apparently not practiced in the Mogoeng household. There is also a worrisome confusion of state, government, the ANC and the employer of the judiciary in the admittedly “loose” terminology used by Justice Mogoeng in his application and answers. His willingness to consider prosecutors for appointment as acting judges is scary evidence of a lack of appreciation of the doctrine of the separation of powers and a willingness to support the hegemonic tendencies of the Minister of Justice on this taboo topic.
Perhaps the most alarming response was to a question raised by veteran politician Koos van der Merwe of the IFP. Asked whether he was a “counter-revolutionary judge”, Justice Mogoeng either disingenuously or naively pretended he does not know what this means. When it was explained to him that this is how Gwede Mantashe refers to the judges in the Constitutional Court, the candidate parried with a “you had better ask him then”. The information which was not elicited is whether his professed commitment to upholding the Constitution means, as it has to all of his counter-revolutionary predecessors, that tenets of the national democratic revolution (which is the ANC’s aim) that are inconsistent with the Constitution are struck down when challenged in Court.
The Constitutional Court is the battleground on which the fate of this revolution (if it is persisted with) will be fought. The politically savvy candidate surely knows this, or learnt of it either in his cosy three and a half hour initial chat with the President or when they met subsequently, but he ducked answering the question for fear of losing the support of the ANC caucus that voted for him when the JSC, after deliberating, split 16 – 7 on his suitability for the high office to which he aspires.
The ANC has rendered the police “dysfunctional” (to use the term of a former deputy justice minister), it has destroyed the Scorpions and undermined the independence of the NPA by deploying Menzi Simelane as its head. It is also turning the JSC into a cadre deployment sub-committee by making its processes a charade. As this lightweight “preferred candidate” was not jettisoned in the half baked consultation process between the President and the opposition political parties, the President’s choice and methodology will have to be challenged by them. There is no prerogative power in our Constitution, despite what both the Minister of Justice and the candidate may think.
Justice Mogoeng would be well advised to ponder both the fate of Macbeth and Koos Van der Merwe’s request that he abandon his ambition. Despite its shortcomings, the interview objectively showed that Justice Mogoeng lacks the gravitas, the temperament and the intellectual stature to be a chief justice out of the same drawer as his illustrious predecessors. He says he respects the DCJ as “an elder brother” – he should act on that respect, despite the decision of the President to press on with the appointment, which is bound to lead to disputation, litigation, the erosion of public confidence in the Bench and a very unhappy atmosphere in the Constitutional Court.
Paul Hoffman SC
12th September 2011