Even if President Jacob Zuma wanted to change his mind about finally appointing Justice Mogoeng Mogoeng as Chief Justice, as the DA is urging him to, he’s unlikely to do so now.

This disciplinary hearing against ANC Youth League leader Julius Malema has inspired him – and some of his close friends – to assert his authority like never before.

ANC secretary-general Gwede Mantashe said as much on Monday night, when he addressed the Food and Allied Workers Union (Fawu) conference in Braamfontein.

Fresh from marathon meetings at Luthuli House with the party’s officials and national working committee, including Zuma, the buoyant round-bellied uncle told a sea of red golf shirts and hats: “Attacks against (Justice Mogoeng Mogoeng) is a proxy war against Jacob Zuma. It doesn’t matter who is appointed, it would be challenged because there is an alliance of forces that seek to undermine our movement, and they have sought to undermine any decision taken by the ANC government”.

He told the unionists, in that straightforward steamrolling Gwede-speak that the position of their labour federation, Cosatu, on Mogoeng is “wrong”.

Cosatu “has positioned itself wrongly on opposite sides of the movement”.

The critics “want to prove to the world that Zuma can’t take proper decisions, but unfortunately he keeps on surprising them. And the element of surprise is very important in any strategy. You must surprise those and give them fresh air and (have them) clutch straws, then they don’t know what to do”.

He complained that nobody retorted that Justice Ishmael Mahomed was a Muslim when appointed to the Constitutional Court bench, or that retired Justice Arthur Chaskalson was a Jew. “When Mogoeng is appointed, they say he is conservative.”

This could also be a cue for the fight between the ANC/SACP and Cosatu about the labour federation’s civil society conference last year to resurface, and it might crack the new-found anti-Malema unity between the ANC and Cosatu a bit.

When a Fawu member questioned Mantashe’s view on Cosatu’s “wrong” stance,  he got some metaphoric Gwede-speak:

“I’m not challenging the right of Cosatu saying where to place itself, but I’m saying the decision is on the wrong side. The train is moving out of the station, it is going to lose you as an ally. That train is moving with speed, it is going to lose you. There is an emerging strong coalition of forces which is opposing everything the organisation does. It is an issue that we must continue debating.”

This comes after civil society lobby group Section 27, Cosatu’s new best friend, threatened to challenge the appointment of Justice Mogoeng in court, calling for more candidates to be put forward. Cosatu on the first day of Justice Mogoeng’s grilling on Saturday, issued a statement saying they objected to his appointment because of his “attitude to the rights of women and other vulnerable groups” based on his previous judgements, which haven’t exactly been groundbreaking.

Cosatu and Section 27 aren’t alone. DA leader Helen Zille, in her submission on Monday to Zuma in which she asks him to reconsider, she lists about 15 organisations, Cosatu included, which opposed or didn’t support Justice Mogoeng’s nomination.

Only three organisations on her list – the Black Lawyers Association, the KwaZulu-Natal Bar Council, the Johannesburg Magistrates Organisation – and five lawyers supported the nomination.

Zuma has readily agreed to hear Zille out in Pretoria on Tuesday evening about why the DA objects to the appointment of Justice Mogoeng – possibly to buy some time, and possibly to dispel criticism that he isn’t consulting properly about his decision.

Zille on Monday at a press conference in Parliament said she believed Justice Mogoeng “is not suitable for the position”, because the DA believes:

• Justice Mogoeng “does not posses the outstanding legal skills (as opposed to ‘usual’ or ‘adequate’) required of a Chief Justice”
• In his history as a judge he has “failed to display the unwavering adherence and commitment to the Constitution required of a Chief Justice”
• He has not shown himself, in his past judgments, to be suitably defensive of the independence of the judiciary
• He doesn’t enjoy the support, both intellectually and collegially, of the majority of his colleagues on the Constitutional Court, and of the wider legal fraternity
• He doesn’t possesses the requisite administrative, accounting and personnel management skills.

Zuma nominated Mogoeng for the position last month, and the Judicial Service Commission (JSC) agreed to calls to subject him to a public interview as part of the pre-appointment consultation process required by the Constitution.

The JSC is expected to inform Zuma soon of their vote on Sunday to give Justice Mogoeng’s appointment their blessing. If Zuma had second thoughts, they made it terribly difficult for him to change it.

One politician who attended the hearing also said Deputy Chief Justice Dikgang Moseneke’s scathing sarcasm and patronising grilling of Justice Mogoeng might have swayed commissioners on the JSC in his favour, if they weren’t certain before.

As for legal action, constitutional expert from the University of Cape Town, Professor Pierre de Vos, said on his blog on Monday it might not change the outcome.

One of the grounds for a legal challenge could be that the JSC had failed to engage in proper consultation with Zuma, as required by the Constitution.

DA MP Hendrik Schmidt’s request to the body to consider more candidates, were turned down over the weekend.

De Vos wrote that the Constitution still gave Zuma the power to appoint a judge, so any challenge would only affect the procedure.

Besides, legal action “might further damage the credibility of our judiciary,” he said. “Long drawn out litigation may well turn into a highly politicised and partisan matter, pitting staunch defenders of the President and the candidate against those who believe the JSC must act as a check on the exercise of power by the President when he appoints a Chief Justice.”

Civil society groups lobbying against Justice Mogoeng’s appointment might do well to continue with the one hand, but with the other to start working to get him on their side. They might need his ear for their cause in future. DM

Read more:

• Mogoeng: A “divine choice” and other worrisomes in Daily Maverick;
• Haters and sycophants split over Mogoeng at hearing in Daily Maverick.