The JSC must answer a charge of moral cowardice

By following a Luthuli House brief, commission white-ants South Africa's judiciary

ONE of the most memorable moments in the Judicial Service Commission interview of Chief Justice Mogoeng Mogoeng was a ditty sung by Justice Minister Jeff Radebe.

Radebe, concluding his lovey-dovey questioning of the president's nominee for chief justice, threw in a supersweet question. Wearing a mischievous look on his face, he asked Justice Mogoeng what his favourite music was.

"Gospel," piped up the God-fearing one.

To which Radebe responded: "I thought you would say Brenda Fassie. Because, as far as I'm concerned, indaba yakho istraight. Ayifuni iruler."

The line from the 1980s Fassie hit loosely translates as: "You're okay. There are no issues with you."

There were hearty laughs all round as everyone got Radebe's point.

Radebe was basically telling Justice Mogoeng, the rest of the JSC and the South African public that there was no need to grill him and no need to establish his credentials. As far as he was concerned, the candidate was as perfect as a German vehicle rolling off the showroom floor.

Radebe had led the ANC charge in pushing for Justice Mogoeng to be confirmed as the leader of South Africa's judiciary. The sweetness of his questions and those of other ANC-leaning commissioners had brought a self-satisfied smile to Justice Mogoeng's face. As did the bulldog rebuking by Radebe and others of those commissioners who sought to give him a grilling worthy of a candidate for such high office.

In the end, the ANC got its man. Logic and reason were never going to triumph over the party's desire to have an obedient puppy lead the judiciary.

So, just like when the ANC foisted an intellectually derelict and corruptible individual on us as president, this time it was pushing the weakest judge in the Constitutional Court to the top of the judicial food chain.

It was the worst decision in the JSC's 15 years of existence.

A position the nation should look up to was, in one fell swoop, reduced to ridicule. Just as had happened with the position of South Africa's number one citizen.

So now, instead of taking these positions seriously, we crack jokes about the incumbents.

This week, Justice Mogoeng proved all who questioned his suitability for the position correct.

Justice Mogoeng - who is a lay preacher in some little-known Christian sect - sent an e-mail to Constitutional Court justices and senior judges in the lower courts, inviting them to an evangelical conference.

In his explanation to Business Day, he said nonchalantly: "When I saw this, I just thought, 'Wow, here is an opportunity to expose those colleagues who are willing and able.'"

So here you have the head of the judiciary in a secular state who believes it is okay to impose his religious beliefs on his colleagues. Here is a guardian of our constitution who believes that his spiritual direction is superior to that of his colleagues.

Not that there is anything wrong with Justice Mogoeng being an adherent of the strange sect to which he belongs. His religious rights are as protected as those who choose not to believe in a god and those who follow different gods from the one he worships. The issue is that he is the country's chief justice, not its chief missionary.

But Justice Mogoeng is not of his own making. South Africans should direct their rage at being lumped with Justice Mogoeng at the JSC. It is this institution that failed South Africa by processing him through the judicial system to the top job without seemingly paying any attention to his oddness.

Each time I think back to that travesty that was described as an interview, I remember a senior legal mind who warned of the "capture" of the JSC by the governing party. While the institution started off as a collection of the strongest minds from the legal, political and academic worlds, today it is hard to vouch for its collective wisdom and integrity.

Not that they are intellectually lacking. Rather it is that many of them lack moral steel. Instead of doing what is right and selecting the best candidates, they follow a Luthuli House brief. The philosophy of many on the commission seems to be: "Ask not what is good for the country, but what the party mandarins want."

This philosophy is likely to prevail when the JSC sits to fill vacancies left by retired and soon-to-be retiring justices. If the hostility towards the judiciary is anything to go by, you can be assured that the Constitutional Court has already been identified as the next target for capture. And the already captured JSC will be the instrument with which this capture is carried out.

We should brace ourselves for more Justice Mogoengs coming our way. Although, one must admit, it will be hard for anyone to match the wackiness of our current chief justice.