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Mogoeng: How to make a revolution with what’s coming

Jill of all trades but really, mistress of none, Carien has of late been a political tourist chasing elections and summits in various parts of the world, especially in Africa. After spending her student days at political rallies in South Africa right through the country's first democratic elections in 1994, and after an extended working holiday in London, Carien started working for newspapers full-time in 2003. She's pretty much had her share of reporting on South African politics, attending gatherings and attracting trolls, but still finds herself attracted to it like a moth to a veld fire. Her ultimate ambition in life is to become a travelling chocolate writer of international fame.

Quick, what do Koos van der Merwe and Gwede Mantashe have in common? Jolly tummies, long political careers - and they both know how to use "counter-revolutionary" and "judge" in the same sentence.

While Oom Koos approves of counter-revolutionaries, we all remember what Uncle Gwede said way back when comrade President Jacob Zuma was still a corruption-accused. Mantashe’s criticism was seen as a threat to the independence of the judiciary and an attack on the dignity of the bench by the same people who are now savaging Zuma’s choice as head of the judiciary.

Van der Merwe, a veteran IFP MP and member of the Judicial Service Commission (JSC), on Sunday quoted Mantashe’s words, in a serious-but-tongue-in-cheek manner, when grilling Chief Justice nominee Mogoeng Mogoeng on his view on judicial independence from the executive.

It’s an important question to have on the record but it was redundant. No judge would openly admit to being willing to take orders from politicians unless he’s a moegoe, which Justice Mogoeng clearly is not – even if Van der Merwe and others thought so.

Then, how harshly should we judge our judges? Justice’s credibility depends on us according decorum to our judges by suspending disbelief and believing that they are pure, tea-guzzling demigods – in the execution of their duties at least. In turn, they have to keep up such appearances to earn our respect.

But this is complicated somewhat by a further requirement of transparency, which involves the kind of open JSC interview that we have witnessed over the weekend.

As a journalist, watching the intrigue live on television elicited an excitement intellectually on par with an all-you-can-eat chocolate pudding buffet.

Some would, however, argue that the interview-cum-interrogation sometimes was so vicious, and the political grandstanding of its honourable members so un-grand, that it harmed the dignity of the person, and, by extension, the bench.

Before the interview, Justice Mogoeng was painted as homophobic, misogynist, lazy, unethical and inexperienced – based on various interpretations of his work and judgements, and underlined by popular opinion that Deputy Chief Justice Dikgang Moseneke should really have gotten the job.

But those who accuse Zuma of playing politics by not appointing Justice Moseneke forget that the deputy chief justice himself was a political choice, catapulted from business onto the fancy ConCourt bench over the heads of some very strong (including female) candidates by former president Thabo Mbeki. Someone who was so greatly favoured by politics hardly has the right to come crying now that politics no longer favours him.

Personally, a choice between say, Justice Moseneke and Mogoeng is a no-brainer: Justice Moseneke oozes Constitutional values and independence; his biting sarcasm (indecorously on display in the JSC over the weekend) and hot-potato accent are appealing; and he is rather handsome.

Justice Mogoeng, on the other hand, seems to read the Bible more often than the Constitution, he follows precedent rather than sets it, and during the interview conceded to his mistakes quite often.

On the plus side, he stood his ground against attacks, including the undignified (career-ending?) snipes from Justice Moseneke, and he had the guts to launch a 47-page offensive at the start of his interview to answer his critics in the media. A genuine passion for improving the administration of justice and access to courts was also clear.

Consider, then, that he could use this skill to address people’s dwindling faith in our broken justice system as cases are piling up, take years to conclude, if ever, etcetera.

This is often more true for poor than for rich people, who can buy their way into good legal representation and private investigations.

Is our failure to make our courts work not perhaps a bigger threat to the Constitution and the equal rights it promises on paper than a judge who has in the past not thought out of the box too much, and whose judgement in the ConCourt cases before him – plus at least seven of his colleagues at any given time – would not count any more than it had thus far in the his two years in this court?

Bible bashers and judicial benches are awkward bed mates in a secular society – one JSC member who voted in favour of Justice Mogoeng privately admitted fundamentalist Christians aren’t their thing – but on the plus side, Justice Mogoeng appears to draw personal strength from his faith, in a good way.

Unlike the conniving and grandstanding that are common in the legal profession, he seems self-incriminatingly, almost naively, and honest, so much so that he owed up to telling a colleague of God’s grand plan for him, in answer to a question from Van der Merwe.

He also seems open-minded enough to take onboard criticism, and lobby groups for the Constitution could use this in their favour.

There has been vocal disagreement with Zuma’s choice, and he might have done his cause some justice by giving us a few decent reasons for it.

These critics have also asked for a wider list of nominees. ConCourt Justice Sisi Khampepe, Gauteng Judge President Bernard Ngoepe, President of the Supreme Court of Appeal Lex Mpati, and senior counsel Dumisa Ntsebeza were all said to have been in the running.

But it seems almost certain that Zuma will push through and appoint Justice Mogoeng, supported by people who might be less vocal than our lively lobby groups, who could do well to stop biting him now.

A Chief Justice Mogoeng might just help make strides in the unglamorous arena of opening up justice on the ground level – something which could turn out to be revolutionary in a way that both merry-bellied politicians, as well as ordinary people, would approve of. DM


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