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Tue Dec 23 02:48:09 SAST 2014

Nomination of Mogoeng borders on trivialisation of the judiciary

Mondli Makhanya | 21 August, 2011 00:51
Mondli Makhanya
Image by: Sunday Times

Those who were present when Mogoeng Mogoeng was interviewed for a position on the Constitutional Court in 2009 remember that day with great hilarity.

It had been a gruelling session, with some heavy and tedious grilling of candidates by members of the Judicial Service Commission.

People were stretching and shifting in their seats. Eyelids were getting heavy. As soon as Mogoeng began his interview, the room came alive. Not, as one would expect, because of his commanding presence. Quite the opposite actually. He was funny and entertaining. Afterwards there was consensus that he was the worst of the interviewees. Attendees were nonetheless grateful for his showing up because, as one put it, "he offered comic relief".

What a shock, then, when the JSC recommended him above candidates who were patently superior and had put forward more compelling arguments.

As tongues wagged this week following President Jacob Zuma's nomination of Mogoeng as the country's next chief justice. The only parts of his interview that those who were at the hearings could recall were the funny bits. So it is not surprising that his nomination was greeted with shock and outrage.

A very loud "WHO?" swept across the nation as the name was announced. Even those South Africans who are familiar with the workings, structures and personalities in our courts joined in the "WHO?" chorus.

Those who knew Mogoeng and his work were perplexed.

My only close-up experience of Mogoeng was during the McBride vs Citizen case earlier this year.

As the judges cross-examined senior counsel, Mogoeng made several inane interventions. To say he was underwhelming would be a grave insult to the word itself.

So now, unless reason prevails, South Africa will for the next decade be saddled with a chief justice who is not up to the job. Worse still, we will have at the helm of our judiciary a man whom nobody takes seriously.

A court that is internationally respected and whose jurisprudence is held in very high regard is now likely to find its prestige being deliberately eroded.

Over the past 15 years South Africa's Constitutional Court has earned a reputation as being among the most progressive and pioneering in the world. Its rulings are referred to in courts throughout the world and are studied at the most prestigious law schools on the planet. That institution is a beautiful something that we South Africans built from the ruins of an evil state. We should be guarding it like gold and helping to develop it into an even more precious body.

Previous incumbents in the office understood this. They understood that the institution was about giving life to the values enshrined in our constitution which, in the words of former Justice Albie Sachs, creates "a coherent, functional and value-based framework" in which the nation's problems can be dealt with .

But it is not clear if the former Bophuthatswana prosecutor fully gets this.

The debate around Mogoeng's suitability for the job is not, as presidency spokesman Mac Maharaj said this week, "designed to demean the person of, and question the integrity of the president's nominee".

It is about South Africans wanting the court to continue to be our lodestar and to be the bedrock of our being as a nation. South Africans want to know that the highest court in the land is there to protect and promote their rights and to be our democracy's strongest protector.

They want to know that the person who leads the nation's court system and who will be in charge of the important judicial reform programme over the next few years is of the highest calibre. They also want to know that he has the respect of his peers. Citizens want to look up to the chief justice and hold him in awe, even when they disagree with his standpoint and that of his court.

Do we have that in the nominated chief justice? The answer is a resounding NO. Whereas his predecessors were towering intellects, Mogoeng is intellectually invisible.

Instead of feeling threatened by the debate, the presidency and Mogoeng's backers should rather appreciate the fact that society is scrutinising the man who will hold arguably the most important job in the democracy.

It is because of this week's scrutiny that the public is now aware that Mogoeng saw nothing wrong with him presiding over a case in which his wife was the prosecutor, that his moral conservatism influences him to swim against the spirit of the constitution, that he makes minimal and inconsequential contributions in court hearings and that his judicial record pales in comparison with those of his peers.

We should not, as some suggest, be hoping that the intellect and strength of the other judges will offset the weakness of the man who should be leading them.

If Mogoeng's appointment is confirmed it will only mean one thing: the trivialisation of our judiciary.

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