Chief Justice controversy: Why did Sisi Khampepe say no to Jacob Zuma?

By Carien Du Plessis 18 August 2011

As the establishment this week erupted in surprise and disappointment over the nomination of Justice Mogoeng Mogoeng as the new ConCourt chief, talk in high places seems to suggest that he wasn’t President Jacob Zuma’s first choice. CARIEN DU PLESSIS tapped into the rumour mill.

The volume of the gossip in judicial tea-rooms went up a notch on Wednesday morning as our learned, robed friends tried to come to terms with the nomination of Justice Mogoeng Mogoeng by President Jacob Zuma to be their top boss.

In fact, some would say there was even a bit of a storm.

Rumbles of discontent were reported from the Gauteng bench and the Supreme Court of Appeal, which found that Justice Mogoeng’s good judgement had failed him when he presided over a case in which his wife appeared as a prosecutor, way back during his time as judge president in the North West.

The criticisms against Justice Mogoeng, soon to be appointed our new chief justice (following “consultation” with the Judicial Service Commission (JSC) and political party heads in Parliament), are well-known by now.

In the Constitutional Court, where Justice Mogoeng had been working for the past two years, there was apparently some disappointment that the popular, capable and fiercely independent Deputy Chief Justice Dikgang Moseneke had been overlooked again – ostensibly because he said in 2008 at his party that judges should not answer to the ANC but to the people of South Africa.

In this respect, some might even say that the blame for Justice Mogoeng’s imminent appointment should be laid squarely at the door of one Justice Sisi Khampepe, a former commissioner on the Truth and Reconciliation Commission and the judge who headed the commission that found the Scorpions were more or less fine as they were, except they needed to move to a new political oversight home.

This is because, they say, the deal was as good as clinched for Justice Khampepe when she suddenly declined it.

The Mercury, which on matters judicial had always been well-informed, even reported as such on August 5, the day Zuma did not make the announcement. Instead, Zuma told his baffled audience of journalists and some JSC members that he needed more time to “consult”.

According to The Mercury’s report, Zuma had by that time already told former chief justice, Judge Sandile Ngcobo, of his choice and the JSC had a meeting lined up for a week later so that Zuma could consult with them. This meeting was subsequently cancelled.

The talk is now that she had told Zuma thanks, but no thanks, because she felt Justice Moseneke was better-qualified than her for the job (and many would say she was right). Justice Khampepe couldn’t be reached for comment on Wednesday – the phone in her office just rang.

Some even said there was an agreement amongst the justices of the ConCourt not to accept nomination over Justice Moseneke. Justice Mogoeng was apparently not in on this agreement, or maybe the pastor felt it his moral duty to accept a call like this.

So it came that the liberals, opposition parties and civil society groups who didn’t like Zuma’s unilateral extension of Justice Ngcobo’s term a few weeks ago, were now really given something to talk about and fill endless newspaper columns with.

By Wednesday afternoon, a mere 24 hours after Zuma’s announcement, the knowledgeable Mac Maharaj, had had enough of the chatter and issued a statement to “correct inaccuracies in the debate” on the chief justice’s “appointment”.

In it Maharaj, Zuma’s spin doctor, explains his “misunderstood” (as he told BBC recently) boss’s decision, although he said Zuma “welcomes the debate” (Zuma’s answer to many contentious things is repeatedly to debate them).

There are “disappointing inaccuracies and distortions in the responses and commentary on the nomination of Justice Mogoeng Mogoeng. These need to be addressed without delay to enable the debate to continue based on factual information,” Maharaj said. The debate shouldn’t demean the person and question the integrity of Justice Mogoeng.

Maharaj quoted the Constitution and said ConCourt experience was not a criterion for appointment.

Former chief justice Arthur Chaskalson, for example, was a human rights lawyer and director of the Legal Resources Centre, and not a judge, when he was appointed in 1994 (obviously he couldn’t have had any ConCourt experience because the court didn’t exist before that).

His successor, Judge Pius Langa, was an advocate and not a judge before being appointed to the ConCourt in 1994, where he became deputy chief justice in 2001 and chief justice in 2005.

Judge Ngcobo was appointed a judge in 1996 (a year before Justice Mogoeng got to sit on the bench) and worked his way up and into the ConCourt three years later.

Justice Moseneke only gets a sentence in the statement, according to which he was appointed a judge in 2001 (he was in business with Nail consortium before that) and to the ConCourt a few days later. He was on the fast track and former president Thabo Mbeki clearly had big plans for him.

“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,” Maharaj continues.

Justice Mogoeng is also the only ConCourt judge to have been a head of court (in the North West, a “corner of a corner”, as Justice Mogoeng himself has described it).

So, that clears the issue of CVs then, but Maharaj didn’t venture to go into the essence of the criticism (see Daily Maverick, The Times, Constitutionally Speaking, Business Day) which is the honourable justice’s apparent lack of actual constitutional judgement – something which many people regard as an essential quality of a Constitutional Court judge.

Sisisi Tolashe, secretary-general of the ANC Women’s League, whose president Angie Motshekga had on Women’s Day called for a female chief justice, told Daily Maverick they were “disappointed” but life goes on.

For North West Premier Thandi Modise (also ANC deputy secretary-general), provincial allegiance trumped gender allegiance, and she said Justice Mogoeng’s “professional integrity is beyond reproach” and criticism against him was just sour grapes.

Meanwhile, the JSC seems to be weighing its options and the opposition is quietly devising its strategy.

JSC spokesman, advocate CP Fourie said the commission has the power to suggest other candidates it thinks should be considered as well. Of course, two years ago, with Judge Ngcobo’s appointment, there was talk of this as well, but Justice Moseneke never made it to the list of suggestions and nobody else wanted to contend with Judge Ngcobo.

While the other opposition parties expressed concern about Justice Mogoeng’s nomination – the ANC, of course, welcomed it – DA leader Helen Zille asked that the commission be given the opportunity to conduct an open interview with Justice Mogoeng “to assess his suitability for the position”.

The same thing happened to Justice Ngcobo in 2009, he agreed and everyone was more or less happy.

It is yet to be seen whether the DA’s request would be granted. The deadline for consultations is next Wednesday. An interview would be nice, because Mogoeng’s been declining phone calls from the media so far.

Zille also requested that, amid the concerns, Zuma tells the JSC on what grounds he considered Justice Mogoeng to have been suitable, and the reasons why Zuma nominated him ahead of other potential candidates.

Given Justice Mogoeng’s reported spirited performance in his interview with the JSC for the ConCourt bench in 2009 – eliciting a wry “amen” from advocate Marumo Moerane – a public interview with the pastor would be fascinating to behold. DM

Read more:

  • As Justice Ngcobo chooses honour before power, Zuma in a corner again in Daily Maverick.

Photo: Reuters


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