Judging the judge

The four armed robbers who made off with R119000 from an FNB branch in the North West farming town of Koster in 2002 could not have imagined that their case would be used to determine a judge's fitness to hold the highest judicial office in the country.

Events subsequent to the morning robbery of March 26 that year have been thrust to the centre of a debate over Constitutional Court Justice Mogoeng Mogoeng's nomination by President Jacob Zuma as his candidate to succeed Chief Justice Sandile Ngcobo.

When three of the convicted armed robbers - the fourth died in jail - brought their case before then Judge Mogoeng and Judge Festus Gura on appeal in 2007, Justice Mogoeng did not recuse himself even though his wife, Mmaphefo Mogoeng, was a state attorney in the matter.

Justice Mogoeng was judge president of North West at the time.

After losing that appeal, the three men took the matter to the Supreme Court of Appeal, where they argued that Justice Mogoeng should have recused himself.

The SCA, in a ruling written by Judge Nonkosi Mhlantla, set aside Justice Mogoeng's decision, saying it "appears to be undesirable if not improper" for the judge to have sat on the matter

The court also called his conduct irregular.

Opponents of Justice Mogoeng's nomination as Justice Ngcobo's successor said this lapse of judgment on his part should disqualify him for the top judicial post.

But Justice Mogoeng's long-time colleague and current North West Judge President Monica Leeuw disagreed: "He didn't see anything wrong (with his wife appearing before him), especially because he wasn't presiding alone; he was with a colleague and it has happened in the Constitutional Court. He used that as his guide. Chief Justice Arthur Chaskalson's son (Matthew) appeared on several occasions before his father. It's family isn't it?"

According to evidence before the SCA, even counsel who appeared for the appellants before Justice Mogoeng and Judge Gura did not believe that it was necessary to request the judge president's recusal.

The same counsel had previously been involved in an unrelated appeal where Justice Mogoeng had ruled against the state - represented by his wife in that case as well.

The second incident cited by critics relates to Le Roux and Others v Dey, which came before the Constitutional Court this year.

Although he agreed with the majority judgment in that case, Justice Mogoeng disagreed with sections of the ruling which stated that it was not defamatory "to offend someone's feelings by merely classing them in a condition that the constitution protects" - in this instance, as being gay.

Justice Mogoeng never gave his reasons for differing with his colleagues, leading to speculation that - as an ordained pastor and practising Christian - the 50-year-old father-of-three harboured sentiments that may not be in line with the constitution.

His denomination, the charismatic Winners' Chapel International, is a conservative church with strong views on homosexuality and abortion.

But Judge Leeuw said the chief justice designate would never let his religious beliefs cloud his judgment.

"He is a Christian like all of us (who are) ... I don't think he would sacrifice the constitution for his religious beliefs. He's a Christian like any other person is a Christian," she said.

There can be little doubt that much of the outrage over Justice Mogoeng's nomination has to do with the fact that Zuma overlooked Deputy Chief Justice Dikgang Moseneke for the post.

Although many constitutional commentators believe that Justice Moseneke was the natural successor, Zuma appeared to have been determined that this will not happen.

According to ANC and government officials close to the process, Justice Moseneke was never on Zuma's radar as a potential candidate.

Most preferred was Constitutional Court Justice Sisi Khampepe, who is said to have turned Zuma down.

But why Justice Mogoeng, a judge described as "relatively unknown" by keen observers of the Constitutional Court?

Much was made this week of the fact that in his 14 years on the bench, Justice Mogoeng has not made any ground-breaking rulings - particularly on constitutional matters.

"I have only looked at some of his judgments; they are not particularly noteworthy or remarkable, although there are one or two interesting references he makes in some of them," said Professor Hugh Corder of the public law department at the University of Cape Town.

Judge Leeuw said Justice Mogoeng ought not to be assessed on the number of judgments he has written: "You cannot judge a judge on the number of judgments that he has written because he doesn't choose which cases come to him . if you are not the judge president."

Amid growing public criticism, Zuma's office this week defended the nomination - pointing out that Justice Mogoeng was actually the third most experienced jurist in the Constitutional Court, going by to the number of years he has served on the bench.

But the answer perhaps lies far beyond the fact that Justice Mogoeng - who was born in a tiny village of Goo-Mokgatha near Zeerust in Limpopo - rose through the ranks as prosecutor to High Court and Labour Court judge and North West judge president before joining the Constitutional Court.

It may have more to do with his personal convictions, some of which resonate with Zuma's own beliefs.

The president may have been impressed by Justice Mogoeng's "passion" for the restoration of traditional courts to ease the burden of poor rural communities who can barely afford the costs of appearing before a magistrate. Justice Mogoeng has argued that restoring and resourcing traditional courts would ease the workload of magistrate's courts.

Zuma has expressed similar views, arguing that access to justice for the poor should be one of the country's priorities.

Corder said Justice Mogoeng further revealed his thinking about the role of African traditional values in the justice system in another Constitutional Court case, The Citizen v Robert McBride.

"He makes a very interesting appeal in the Mc Bride case for a return to more traditional values, which he describes as African values of mutual respect ...

"How does he see traditional courts playing a role in the future of our administration of justice?" Corder asked.

Judge Leeuw, who nominated Justice Mogoeng for the North West judge president post, said she believed he was what the Constitutional Court needed.

"I have no doubt that (Justice) Mogoeng will excel ... I know him for his humbleness, assertiveness, hard-working (nature). From his personality to his competency, all of us saw leadership qualities in him ... as someone who could lead our division at that time. He has empowered so many advocates, who came to act in this division when he was judge president," said Judge Leeuw.

One of the positives of appointing Justice Mogoeng to the job, Zuma's office said, was his age. At just 50, he may have 10 more years to give the Constitutional Court before he reaches retirement age. The argument is that this may help to bring stability to an institution that is on its fourth chief justice in 15 years.

Ultimately, with the Judicial Services Commission saying it will hold a public interview for the chief justice designate, the public will be able to judge for itself whether Justice Mogoeng really is the right man for the post.