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Fri Sep 19 09:49:28 SAST 2014

Do the right thing and pick the obvious candidate for chief justice

Mondli Makhanya | 07 August, 2011 03:00
Mondli Makhanya
Image by: Sunday Times

It was an innocuous line in an otherwise jolly speech that created the conundrum. At his 60th birthday celebration in Durban in 2008, Deputy Chief Justice Dikgang Moseneke recommitted himself to the values of the constitution.

"I chose this job very carefully," he said. "I have another 10 to 12 years on the bench, and I want to use my energy to help create an equal society.

"It's not what the ANC wants or what the delegates want; it is about what is good for our people," he said.

To a rational person, these words would provoke no outrage. It was a straightforward affirmation that judges were impartial and put the interests of broader society before those of political authority.

But South Africa's governing party would have none of that. The following week, the ANC's national working committee issued a blustery statement accusing Justice Moseneke of attacking the ANC and belittling delegates at its conference.

"His reported comment shows disdain for the delegates to the ANC national conference and highlights the difficulty that many within the judiciary appear to have in shedding their historical leanings and political orientation," the party said.

The party's secretary-general, Gwede Mantashe, questioned whether its newly elected president, Jacob Zuma, would receive an impartial hearing when a matter related to his corruption case came before the Constitutional Court.

The attack further chilled an already frosty relationship between the ANC and the judiciary, and confirmed the party's animosity towards the highest court in the land. In subsequent months, we were to hear caustic references to the judiciary as "counter-revolutionaries".

For Justice Moseneke, the birthday speech was what some might call a career-limiting statement. With Chief Justice Pius Langa due to retire in 2009, Justice Moseneke had been the obvious candidate to take over.

As one of the country's brightest legal minds and an internationally renowned jurist, there had been no debate about whether he would step into Justice Langa's shoes. He had the respect of the entire judiciary and legal fraternity, and had strong support from his colleagues on the Constitutional Court bench.

But it was not to be.

As the party intensified its attacks on the judiciary - which included a bizarre pro-Zuma march on the Constitutional Court by school children - so Justice Moseneke's chances receded.

It was no great surprise then when Zuma overlooked Justice Moseneke and appointed long-serving Constitutional Court member Justice Sandile Ngcobo instead. Although Justice Ngcobo was no lackey and was himself a top-drawer jurist, the Justice Moseneke snub was a message to him.

As many pointed out at the time, it did not make sense to appoint someone who had less than two years to go before his constitutionally limited 12-year stint on the bench was up. With the huge judicial transformation project pending, the job would require somebody who was going to be in the picture for a long time. So both seniority and time were on Justice Moseneke's side.

In appointing Justice Ngcobo in the clumsy manner that he did, Zuma harmed the reputation of a great jurist, as well as the institution itself. The terrible reality is that, throughout his tenure, there were always questions as to why he and not Justice Moseneke was appointed.

Nonetheless, he embarked on an ambitious judicial restructuring programme. That was to be his legacy, had he continued in the job. But the extension of his term was bungled, and now he will not be around to complete what he started.

The outcome is that Justice Ngcobo has the stain of political approval, with all the negative connotations that come with it. This is unfair to him, as he is a person of great integrity.

Although he was definitely up to the job and fully deserving of the position, Justice Ngcobo's initial appointment was wrong.

It was made for political reasons. He was pushed into the position because the executive felt more comfortable with him than with the natural successor.

The extension of his term would have been equally bad, as it was clear that the executive was pushing for it because they felt comfortable with him.

Government high-ups like Zuma and Minister of Justice Jeff Radebe stopped short of saying, "We really like this guy a lot," as they scrambled to justify their push to extend his term.

All credit to Justice Ngcobo, then, for doing the honourable thing and rejecting the extension. Had he accepted it, his credibility would have been dented and the office of the chief justice would have been severely compromised.

It now remains for Zuma, Radebe et al to rise above themselves and not defy logic. Otherwise, it is unlikely that Justice Moseneke will stick around, and South Africa will lose the skills of two great jurists.

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Fri Sep 19 09:49:28 SAST 2014 ::