Mojapelo stands up to JSC

One of the most respected judges in the country stood his ground and defended a newspaper article in which he criticised the Judicial Service Commission for not following procedure when appointing former chief justice Sandile Ngcobo in 2009.

Judge Phineas Mojapelo, deputy judge president of the Johannesburg High Court, appeared before the commission of which he was once a member as one of three judges short-listed to become judge president of the North Gauteng (Pretoria) and South Gauteng (Johannesburg) high courts.

In his May 2011 article in the Sunday Times, Mojapelo wrote about the importance of public participation in the selection of the chief justice. He penned the piece shortly before the current chief justice, Mogoeng Mogoeng, took up the position.

When Ngcobo was chosen, the decision was marred by threats of legal challenges to his appointment on the grounds that procedure had not been followed.

"In the last appointment of the chief justice, the [commission] did not announce the vacancy and invite nominations . The public did not nominate candidates. The decision-making process was robbed of an important element of legitimacy, that is, public participation at its initial stages. Consequently, the process was, I submit, critically impoverished," he wrote in 2011.

Justice Minister Jeff Radebe quoted this extract to Mojapelo during Mojapelo's appearance as a candidate before the commission: "So if this is not a critique of the JSC . I don't understand what is," Radebe said.

Mojapelo stressed that procedure should have been followed: "Minister, I did that not because I was critiquing [sic] but because I have a duty towards my country."

He was then asked: "Do you think it is appropriate for judges to descend to the political arena and make public statements?"

Mojapelo replied: "Politics [is] for the politicians . for the judges, adjudicating is their business."

The Judicial Service Commission has had to rule on a misconduct complaint against Western Cape High Court Judge President John Hlophe, who was accused of trying to influence two Constitutional Court judges in their handling of the corruption case against President Jacob Zuma.

The commission cleared Hlophe of wrongdoing but, four years later, the matter has ended up in its lap again after litigation by Western Cape Premier Helen Zille.

It was decided that the new legislation - the Judicial Service Commission Amendment Act - will be used to deal with complaints against a judge.

The Hlophe issue will now go to a judicial conduct committee and, in terms of the legislation, Mogoeng will have to act as its chairman. But he has been directly involved in the row between the Constitutional Court judges and Hlophe. For this reason, he recused himself from the commission's deliberations on the Hlophe issue on Monday.

Spokesman for the commission Dumisa Ntsebeza did not respond when asked whether Mogoeng would recuse himself from the committee, whose job will be to decide whether to refer the Hlophe case to a Judicial Conduct Tribunal.

The Judicial Service Commission Amendment Act was not in force when the complaint against Hlophe was lodged in 2008.