Moseneke left out in the cold again

07 August 2011 - 05:00 By SIBUSISO NGALWA
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Deputy Chief Justice Dikgang Moseneke will not become the next chief justice, as President Jacob Zuma will look elsewhere to replace outgoing Justice Sandile Ngcobo.

The Sunday Times has learnt that Constitutional Court Justice Sisi Khampepe is the frontrunner to replace Justice Ngcobo - who will step down after 12 years in the Constitutional Court.

However, other senior judges in the running for the position are Supreme Court of Appeals Judge President Lex Mpati, Constitutional Court Justice Mogoeng Mogoeng and South Gauteng Deputy Judge President Phineas Mojapelo.

On Friday Zuma told a summit with media owners in Pretoria that he would delay the appointment of a new chief justice as he needed more time to consult with the Judicial Service Commission and the leaders of political parties in the National Assembly. Justice Ngcobo vacates his position on August 14.

"I am satisfied that the interests of justice and of broader society will better be served if we allow more time for meaningful consultation, as this is a crucial decision impacting on the lives of South Africans. I am equally satisfied that, in the intervening period, the delay in the appointment of the new chief justice will not adversely affect the work of the judiciary," said Zuma.

It is understood that Zuma will make his appointment just before the end of the month.

If appointed, Justice Khampepe will become the first female chief justice. With all other major institutions of the judiciary headed by men, her nomination would be seen as a step in the right direction.

She is a highly regarded jurist - having previously chaired the commission set up by former President Thabo Mbeki to decide the future of the Scorpions.

She ruled in favour of the retention of the now-defunct elite investigating unit, despite contrary views from the ANC and other state security agencies.

However, she did censure the Scorpions for engaging in intelligence-gathering activities that were not part of their mandate.

It will be the second time that Justice Moseneke has been overlooked for the position, as Justice Ngcobo was appointed ahead of him - despite Justice Moseneke having been former chief justice Pius Langa's deputy for a while. But it was argued that Justice Ngcobo had more experience in the Constitutional Court than Justice Moseneke, who was brought in from business by Mbeki in 2002.

It is understood that there has been a strong lobby for Justice Moseneke's appointment from both within and outside the ANC, but Zuma is not likely to budge.

Zuma backers have been suspicious of Justice Moseneke ever since it was reported that at one of his birthday parties he made comments that were construed as criticising Zuma's election as ruling party president. The judge was quoted as saying at the time:

"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."

Government insiders have also suggested that the unease about Justice Moseneke also stems from his judgments - notably the Hugh Glenister case against the disbandment of the Scorpions.

Glenister successfully challenged the constitutionality of the disbandment of the elite investigative unity. In March the Constitutional Court ruled that the sections of the act that disbanded the Scorpions were inconsistent with the constitution.

Justice Moseneke delivered the majority judgment - with which four other justices concurred. Justice Ngcobo delivered the minority judgment.

Constitutional law expert George Devenish said that any judge in good standing could be appointed as a chief justice.

"Anybody fit and proper can be appointed. For an example if the president decides to appoint Judge John Hlophe ... the mere fact that he is the judge president of the Western Cape wouldn't stop the president from appointing him.

"What the president has to do is to consult . that requires not merely that leaders of political parties in parliament should be informed, they should actually be consulted. He is not bound by their view point but I think he is obliged to consult and not merely inform," said Devenish.

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