Flawed appointment process

The appointment of the new Chief Justice, Mogoeng Mogoeng, by President Jacob Zuma elicited what Mogoeng himself calls a “tsunami of a special kind.” Indeed, his appointment triggered a flood of criticism, most of it targeting the judge’s level of experience, his pronouncements on his Christian beliefs and his alleged attitude towards gays and women. The biggest culprit in this unhappy situation is, however, probably a flawed appointment process.

Zuma's nomination of Mogoeng drew unprecedented outrage and rejection from the media, the public, unions, the legal fraternity, pressure groups, women’s groups, opposition parties, and even a group of law experts in the US, all of whom said he was inexperienced due to his relative small record of judgments and/or raised concerns over his religious views and his views on gays, gender and rapists.

When the Judicial Services Commission (JSC) later interviewed him regarding his suitability for the position, it was Mogoeng himself who pointed out the one-sidedness of the attacks on him. While the media had focused on one or two rape cases where various commentators felt he had been lenient, Mogoeng pointed out he had handed down harsher sentences in a number of other rape cases of which nothing was said.

Those supporting Mogoeng’s nomination – apparently not Zuma’s first choice as three other judges are said to have turned down the job – were largely ignored by the media. They include Advocates for Transformation, a majority of the members of the JSC, the Black Lawyers’ Association (BLA), the bar councils of KwaZulu-Natal and North West provinces, and the African Christian Democratic Party (ACDP), among others.

Comparing those for and against the appointment once again exposed some racial undertones. It also exposed the ongoing tensions in the legal fraternity, shaped by politics, ideology, race and other social issues.

The “characterisation” of Mogoeng as a “traditionalist” is a manifestation of that ideological divide, advocate Dumisa Ntsebeza SC, who chairs Advocates for Transformation and voted for Mogoeng’s appointment at the JSC reportedly said.

Flawed process

Assuming that Mogoeng was perhaps not the best candidate for the job, accepting some of the criticisms levelled at him, and accepting that other deserving candidates like Deputy Chief Justice Dikgang Moseneke were overlooked, it would seem that the nomination and appointment process is badly flawed.

Some of the major defects of the current process is the absence of genuine broad consultation by the President to inform the choice of nominees; the absence of a shortlist of more than one candidate forwarded to the JSC for a recommendation, as is the case with the appointment of other judges; and the fact that the JSC is, in its current form, largely a politically loaded rubber stamp for the President or ruling party.

Of course President Zuma will disagree as he called the JSC interview of Mogoeng the “longest, most transparent and most robust ever undertaken by a candidate for chief justice or for any other public position in the history of this young democracy” and that “we can proudly say that we saw democracy at play in a most unprecedented and progressive manner”.

The appointment of judges is done in terms of a process stipulated in Section 174 of the Constitution.

The President appoints the Chief Justice and Deputy Chief Justice after consulting the leaders of parties in the National Assembly and the JSC. He also appoints the President and Deputy President of the Supreme Court of Appeal after consulting only the JSC.

Other Constitutional Court judges are appointed by the President after consulting the Chief Justice and the leaders of parties represented in the National Assembly subject to the JSC preparing a list of nominees with a least three more names than the number of posts to be filled, while the President must furnish the JSC with reasons if any of the names are not acceptable to him.

Judges of all other courts are appointed by the President on the advice from the JSC after that body has interviewed and shortlisted the candidates.

Critics of the process point out that the President does not really consult with leaders of political parties, but merely informs them of his predetermined choice which is then rubber-stamped by the JSC. There is no clause binding the President to consider their views or their preferred candidates. He also does not have to submit a shortlist of more than one candidate to the JSC.

Of the JSC 15 of its 23 members (25 when considering matters relating to a specific High Court) are political appointees. Only eight come from the legal fraternity.

The way this process has been structured therefore makes it unavoidable that it will be politicised and open to the kind of public polemic that has just been witnessed.

Civil rights group AfriForum said it believed President Zuma had acted unlawfully by nominating Justice Mogoeng before consulting the JSC or any opposition party. It is considering a legal challenge to the appointment of Mogoeng on that basis, while various other organisations and political parties  are also considering challenging the appointment in court.

Koos van der Merwe, chief whip of the Inkatha Freedom Party (IFP) and a JSC member who voted against Mogeoeng’s appointment, has indicated his party may consider introducing a private member’s bill in Parliament that could lead to changes in the process of appointing the Chief Justice.

Accepting the outcome

Despite present flaws in the process a complete political takeover of the criminal justice system, however would be most unlikely, if not impossible due to the many existing checks and balances inherent in South Africa’s constitutional democracy.

It is also difficult to see how the appointment of a specific person as Chief Justice would overwhelmingly serve the interests of the ruling party and/or its leaders or cause specific bias in the administration of justice.

The Chief Justice does not work in isolation, or outside the bounds of a variety of rules and conventions, and cannot arbitrarily make executive-type decisions that will directly impugn on serving the cause of justice in a balanced and fair way.

Further attacks on the person of Chief Justice Mogoeng would therefore be unwarranted. Attention should rather focus on the system and process of appointment in the future.

Legal challenges at this stage will be unfair towards Chief Justice Mogoeng – who has so far handled the entire matter with great restraint and dignity. It will also be unnecessarily divisive for South Africa’s already divided judiciary and will further retard the transformation process that is underway.

Stef Terblanche