A rumble in the legal jungle over Mogoeng rages – we call it

By Stephen Grootes 19 August 2011

It was always predictable. President Jacob Zuma’s announcement that he was going to nominate Judge Mogoeng Mogoeng to the post of Chief Justice was going to end up with at least the threat of a legal challenge. That’s what happens when you overlook people who are qualified and who regarded as “fiercely” independent (the ANC would argue independence is relative). And it was also predictable that into this heated atmosphere would step ANC secretary-general Gwede Mantashe, raising the blood pressure of those testy legal types who believe in independence, precedent and all that. By STEPHEN GROOTES.

Gwede Mantashe’s run-ins with the Constitutional Court have a special place in our history. It was back in July 2008 when the ANC secretary-general was quoted as saying that the judges, the guardians of our Constitution, were part of “counter-revolutionary forces” that were operating against Zuma. It was a quote he denied but which that led to a spectacular response from Zapiro. So it was no surprise to see that he had told the Sowetan newspaper that judges were being “hostile” to Parliament. Those who know Mantashe well would expect that if he was angry at being misquoted by a publication, he’s not hesitant to say so. Or if he feels that the hornets are coming out of their nest sufficiently, he’ll just switch off his phone.

This time it was different. He was happy to tell Eyewitness News that Parliament should not have opposition parties threatening to go to the court if they were losing an argument. The pick of his comments was that “judges should not be ‘goggas’, a threat that can be used when you are losing an argument”. It’s not necessarily vintage Mantashe, in that he usually speaks less plainly than that. So he’s clearly agitated.

This din concerns several issues, and several judgments. The first is, of course, the Glenister Judgment in which the ConCourt ruled, by the slimmest of majorities, that the way the Hawks are currently constituted means they are not as independent as they should be. It was essentially a smack-down by judges who were really ruling on the dissolution of the Scorpions.

It’s also about the Protection of Information Act which opposition parties have warned repeatedly won’t pass constitutional muster.

But it’s also about the ANC struggling with the last check on its power. The Constitutional Court has been in the news for all the wrong political reasons over the last few years. In each case, it seems that it’s really about the nexus between politics and the law, the will of the ANC versus the independence of the judiciary. To its immortal credit, the ANC has abided by every court ruling against it since the end of the armed struggle. But it must surely chafe to keep being told you can’t do this or that. If there is anything the ANC resents, it’s not getting its way.

Mantashe’s also singing from the same hymn sheet as Zuma in defending Mogoeng. He echoed Zuma’s statement that was released on Wednesday evening, detailing which judge had how much experience. The point was to show that Mogoeng is not inexperienced, and thus remove one of the main planks of argument from his detractors. Mac Maharaj is worth every cent of his government salary.

But he’s not the only person who’s been thinking hard. Paul Hoffman, who heads the Institute for Accountability in Southern Africa, has as well. He’s had a good look at the process. He reckons that Zuma didn’t do the right thing when he nominated Mogoeng. The Constitution talks about the President appointing a Chief Justice “after consultation” with the Judicial Service Commission and the leaders of the parties represented in the National Assembly. The full nature of that “consultation” is not properly spelt out. So it’s open for interpretation, and when you’re a senior counsel, that’s all you need to get a hearing.

Hoffman reckons that Zuma should have called for nominations and then proceeded to make a choice. Instead, he made his choice clear from the start. Now, there are those who might immediately jump on this and shout “see, he got it wrong”. But I’m not entirely convinced.

Firstly, the way Zuma has done things this time is exactly how Julius Malema’s current hero, Thabo Mbeki, nominated Judge Pius Langa to be Chief Justice. Judge Dikgang Moseneke became Deputy Chief Justice in the same way. There was the nomination by the President, then the JSC hearing and consultation etc. Hoffman claims that in those cases the judges were so highly regarded that it didn’t matter. This case though, he says, is different. In other words, he’s not going to stand by and let someone like Mogoeng become the head of our judiciary that easily.

At the same time, Zuma is in a position where if he did follow Hoffman’s preferred procedure, at some point he would have to mention his name to opposition parties and the JSC. And guess what, they leak. In 2009 he had to choose four names from the seven people nominated by the JSC to get onto the Constitutional Court. His chosen four leaked from the opposition parties to the media within hours. It’s one of those things – there was no way he was going to win this. So he’s probably on fairly firm ground on this one.

The JSC is meeting this weekend to discuss the way forward from here. It’s not holding its public hearing over the next few days, just planning what to do next. It’s constituted by members of all the parties in Parliament, four members appointed by the President, and then the Justice Minister. On the legal side it has several judges, including the Chief Justice, his deputy, and representatives of the Judges President, plus representatives of the professions, i.e. attorneys and advocates, as well as  a couple of academics. If you do the maths, the ANC does have a near, but not total, majority. And while it’s still possible the JSC will nominate someone else, it’s not very likely.

In the final analysis, there is much sound and fury surrounding the nomination of Mogoeng. But it seems, this time, the ANC and Zuma will almost certainly have their way. DM

Photo: Photo: Oupa Nkosi/Mail&Guardian


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