The hypocrisy on the debate about the Chief Justice

Let me declare upfront that I hold no brief for either President Jacob Zuma or the Honourable Justice Mogoeng Mogoeng ("the nominee"). As a matter of fact, I am not even sure if I would have nominated him if I were the President of the Republic.

I am very disappointed by some of the things that have been said about the nominee ever since President Zuma indicated that he preferred the nominee for the position of Chief Justice. The likes of Adv Paul Hoffman SC have taken their time to do a "Jutastat Search" (a legal information search engine) in order to look at the number is cases that the nominee has been involved in so that they can substantiate their view that the nominee does not have sufficient experience to lead what may soon be the apex Court in SA.

Not to be outdone, Prof Pierre de Vos from UCT has also commented on his blog and elsewhere that if the nominee is appointed, our judiciary will be led by "a deeply conservative jurist". This observation is based on the nominee's dissenting judgment in the matter of The Citizen v McBride wherein the nominee disagreed with the majority's view that the newspaper was entitled to call Mr McBride a murderer, notwithstanding the fact that he had been granted amnesty by the Truth and Reconciliation Commission.

The nominee also distanced himself with the majority view in the matter of Le Roux and Others v where the Court found that our Constitution affirms the principle that there is nothing wrong with being gay or lesbian, hence one cannot be defamed if one is called a homosexual. The nominee's decision not to recuse himself in the matter of S v Dube, wherein the nominee's wife was the prosecutor in the case is also mentioned.

Now, even if we are to accept that the issues raised by these legal eagles, and many others, have some merits (an issue I express no opinion on in this article), I personally fail to understand how these are suddenly serious issues because the nominee is now up for appointment as Chief Justice.

If one looks at the issues being raised it becomes very clear that these are issues that should be of concern when a person is being appointed as a judge of any Court, particularly a judge of the Constitutional Court ("CC"). These issues go to the core of the person's suitability to act as a judge of the CC, and have very little to do with his suitability as a Chief Justice.

If the judge is homophobic, as has been suggested, surely that affects his suitability as a judge of the CC; if he presides over matters that he should not be presiding on, again that affects his suitability to act as a judge; if he has limited experience as a judge (in terms of judgments written et cetera), surely he has no business being a CC judge at all.

The hypocrisy lies in the following factors:

These commentators are being very economic with the facts. Why are they not telling the ordinary citizens that in the Dube matter, for example, the nominee did not sit alone, he sat with Judge Festus Gura; the accused Counsel did not request the nominee to recuse himself precisely because he (Counsel) was aware he had previously appeared before the nominee in an unrelated matter where the nominee had ruled against the State where the State had been represented by the nominee's wife in that case as well - therefore there could not have been any question of bias.

More importantly, the nominee, as the North West current Judge President is reported to have said, saw nothing wrong with presiding over a matter where his wife was the Prosecutor because even in the CC the former Chief Justice Arthur Chaskalson's son (Matthew) appeared on several occasions before his father but the Chief Justice never recused himself even though this was a family member appearing before him.

There is the laughable suggestion that because of the nominee's membership of Winners' Chapel International, supposedly a conservative church with strong views on homosexuality and abortion, the nominee is likely to be compromised when issues of religion come before the Court.

Firstly, this attack is disingenuous because (even if we accept that the concern is warranted) his views would still be an issue even if he was not the Chief Justice. In other words, this has no bearing on his suitability as a Chief Justice as he would still have had to decide the matter even if he was just an ordinary judge in the CC.

Secondly, this regrettably amounts to questioning the judge's allegiance to the oath of office which he took, which demands that he not allow his personal beliefs to interfere with his work.

Thirdly, the question has to be asked, is he the only Christian in that Court whose church does not believe in abortion and homosexuality?

With regards to the attack based on the "groundbreaking" judgments he has authored (or lack thereof), once again there is double standards. Former Chief Justice Chaskalson had no judgments, let alone groundbreaking ones, before he was appointed and yet he did a very good job as a Chief Justice.

Therefore, prior "groundbreaking" judgments are clearly not the barometer that we should use. In any event, a judge at the CC does not choose on which matters he will write a judgment on and for the likes of Adv Hoffman SC to attack the nominee for concurring in judgments is nothing short of mischievous.

What is he supposed to do when he agrees with a judgment of a colleague, dissent just so that he can write his own judgment?

In any event, why is the general public not told that at the CC the Chief Justice does not have any "veto power" and decisions are taken on the "majority rule"? In other words, no matter what views the Chief Justice holds, it does not follow that such views will reflect in the decisions of the Court. If the other sitting judges are not as conservative as the nominee, his views will remain that of a minority.  

As far as I am concerned, once a person is appointed as a judge of the CC it must follow that such a person can be appointed as a Chief Justice. This is even more so when you consider the fact that experience at the CC is not even a requirement for appointment as a Chief Justice. Even Prof de Vos could have been appointed as a Chief Justice even though he has no experience of being a judge; provided of course that he meets the set criteria.

In my view, ideally you need someone with sound administrative experience. Here we have the ONLY judge who has been a Judge President of a High Court, the only judge with such experience in the CC. No other judge of the CC has been a leader of any Court before.

Just because we have our preferred candidates we dare not lose our objectivity in the commentary that we make. If the likes of Adv Hoffman SC and Prof de Vos seriously hold the views they have expressed on this issue, I challenge them to approach the Judicial Service Commission and request that Judge Mogoeng Mogoeng be removed as a judge. If they fail to do so, it will only show the hypocrisy in their arguments.

Mzo Tshaka is an Attorney based in Cape Town

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