Submission by DA leader Helen Zille to President Jacob Zuma regarding the suitability of Judge Mogoeng Mogoeng for the position of Chief Justice September 5 2011

Introduction

On 16 August 2011 I, as the Leader of a party represented in the National Assembly, was requested in terms of section 174 (3) of the Constitution, to give my views regarding the suitability of appointing Justice Mogoeng Mogoeng to the post of Chief Justice of the Republic.

I accept President Zuma's request in good faith. If consultation with me, other opposition party leaders and the Judicial Service Commission (JSC) is to be meaningful, then it implies the possibility that the President will approach the appointment of the Chief Justice with an open mind and may therefore even be required to change his mind regarding the suitability of a candidate as a result of such consultation, after having consulted the JSC and the leaders of political parties.

From the outset, the DA held the opinion that more than one candidate should be interviewed for the position, to avoid a perception that the JSC was merely undertaking a formulaic process to rubber-stamp a foregone conclusion. We continue to hold this view.

Following this weekend's public interview, the Judicial Service Commission came to the view, by a majority vote, that Judge Mogoeng is a suitable candidate for the position of Chief Justice. The JSC interpreted its mandate as being limited, from a constitutional perspective, to an assessment as to whether Justice Mogoeng complies with the limited statutory requirements of the position as contained in Section 174 of the Constitution. The JSC accordingly chose not to consider, nor comment on, the relative suitability of Judge Mogoeng compared to either what is to be expected of a person who seeks to fill the position of Chief Justice, or indeed other possible nominees for the position. Whilst we respect the role that the JSC has played in this process to date, by its conservative interpretation of its constitutional mandate, its role has been limited in scope and has provided no room for wider comment as to the extent to which this position should be filled by an exceptional candidate, as opposed to one who merely meets the constitutional criteria of qualifying for nomination.

The Constitution differentiates between the JSC and opposition parties in the consultation process. Accordingly we do not view our role in the process as merely akin to that of the JSC. We are of the opinion that in this consultation process we are duty bound to offer counsel to the President on not only whether Justice Mogoeng is a suitable candidate for the position based on the prerequisites of section 174 of the Constitution, which he clearly is, but whether he is the best candidate for the unique job of Chief Justice of South Africa.

It is from this perspective that we disagree with the recommendation of the JSC, and do not agree that Judge Mogoeng is currently the most suitable candidate for the position.

An exposition of our analysis of Judge Mogoeng Mogoeng's suitability for Chief Justice follows below:

1. Justice Mogoeng was appointed as a judge of the North West Province High Court in June 1997, as a judge of the Labour Appeal Court in 2000 and as Judge President of the North West High Court in October 2002. He was then appointed to the Constitutional Court in October 2009. From 1986 to 1990 he was a Supreme Court (now High Court) prosecutor for the then Bophuthatswana government.

2. In terms of the Constitution, there is no ‘threshold' statutory qualification for the unique position of Chief Justice. The only criteria that applies to the assessment of a formal qualification for the position is that, as is set out in section 174, a candidate must be a fit and proper person who is a South Africa citizen. It may thus seem - if only in terms of these oblique criteria - that Justice Mogoeng qualifies for nomination in terms of this ‘threshold'.

3. I stress, however, that the issue of whether Justice Mogoeng is indeed suitable to be appointed as Chief Justice involves a far greater degree of interrogation than simply ticking a formal requirement box.

4. The position of a Chief Justice within the South African constitutional and legislative framework is a unique one. It is intended for a person who has reached the pinnacle of legal achievement in this country and is viewed, both domestically and internationally, as being the definitive custodian and protector of one of the most progressive Constitutions in a developing (but still fragile) democracy.

5. The role played by the Chief Justice within South African society is of fundamental importance, not only in respect of the ongoing evolution, elucidation and protection of the Constitution (which still requires interpretation in many areas through the development of case law), but also in relation to the leadership of the JSC and its on-going functions concerning the judiciary, the transformation of the judiciary, and the proposed upgrading and restructuring of South Africa's court infrastructure and systems.

6. With the proposals currently before Parliament in terms of which the Constitutional Court is to become the highest court in the land on all matters, the required intellectual rigour and management skills of its members should be nothing short of exceptional. This applies particularly to the person leading the Court.

7. We are therefore not searching for an "adequate" replacement for former Chief Justice Sandile Ngcobo. We are looking for a jurist with exceptional attributes, experience and stature. The indispensable role in the development of our democracy played by former Chief Justices Chaskalson, Mohamed, Langa and Ngcobo is testimony to the fact that the words "fit and proper person," when applied to a prospective Chief Justice, require a far more comprehensive and rigorous analysis than would be expected for lesser positions.

8. The key question is whether Justice Mogoeng meets the appropriate thresholds applicable to the position of Chief Justice. By the nature of the position only a few jurists would meet all these criteria, and it is not necessarily a poor reflection on any individual person who does not meet this very high and exacting standard. Very few do.

9. What those higher thresholds are, and how they are to be assessed, is clearly not something that can be cast in stone.

This allows the President to appoint any person, from any area of practice, so long as an investigation of the person's experience and history, to date of nomination, clearly and unequivocally shows the exceptional nature of the person - and hence the attainment of those attributes and qualities which attach to this important position.

This notwithstanding, there are however various common, well-founded and uncontentious characteristics that can be expected of any person considered for appointment to the position of Chief Justice, these being:

A) Outstanding (as opposed to ‘usual' or ‘adequate') legal skills

B) An unwavering adherence to the Constitution and the principles it enshrines

C) A fiercely independent, enquiring and logical mind

D) Practical sensibility

E) The support, both intellectual and collegial, from members of the Constitutional Court, the judiciary as a whole, and the wider legal community with whom he or she is destined to interact and work

F) Exceptional administrative, financial and personnel management skills

G) Judicial temperament

What follows is an examination of each of these factors as compared to the candidacy of Justice Mogoeng.

A) Legal skills

10. Whilst it may be difficult to determine conclusively how a potential candidate's legal skills are assessed, given that candidates may be drawn from almost any sphere (including business), it is clear that prior intellectual output in any form by the candidate, from a legal perspective, must be one of the main means of assessing this ability.

11. As regards Justice Mogoeng, I have not been able to find any published independent or academic writing by him. This fact was confirmed by him during his recent interview with the JSC. He has not authored any academic writings.

12. It is unusual for a person being considered for the highest legal position in the country to have not produced a single published article. Therefore we can only consider the following pertaining to Justice Mogoeng's candidacy:

o His legal reported arguments as an advocate prior to becoming a judge; and

o Available reported judgments delivered by Justice Mogoeng after his appointment to the bench.

13. I have been able to find reference to only three cases in which Justice Mogoeng actually appeared as an advocate. He also confirmed during the JSC interview that he had never appeared as an advocate in the Supreme Court of Appeal or the Constitutional Court prior to becoming a judge.

14. Whilst this aspect is not crucial to obtaining the experience required of a Chief Justice, it does indicate that as an advocate, Justice Mogoeng did not get to consider, formulate or take part in arguments presented to the higher courts of our land. This complex experience is a continuous skill that is regarded as a minimum prerequisite for suitably qualified advocates aspiring to take silk.

The process of formulating arguments, preparing heads of argument and dealing with antagonistic judges develops an advocate's ability to withstand both verbal and intellectual scrutiny, and moulds his or her knowledge and practise of the law over many years. In addition, evidence of numerous appearances in higher courts by an advocate indicates that attorneys and clients have faith in him. More importantly, it provides a litmus test of whether other lawyers respect the legal ability of the advocate in question.

15. According to his completed nomination form referred to above, Justice Mogoeng started his legal career as a prosecutor in the Bophuthatswana Department of Justice. It appears reasonable to assume that much of his experience at the bar of the North West Province thereafter entails mainly criminal law. It seems that he practised for a period of approximately seven years prior to being appointed to the bench, and as such, it is disappointing to note that during that period he appears absent from the highest courts of our land.

16. With regard to his time spent on the bench prior to his appointment to the Constitutional Court and over a period of 12 years, he delivered only 10 reported judgments.

This amounts to less than one reported judgment a year. It is common cause within the legal fraternity that only noteworthy judgments are "reported", i.e. those that expound on the principles of law in a meaningful way, and thereby establish guidance and precedent. The fact that only 10 judgments by Justice Mogoeng have been reported during a 12-year career in the High Court must be regarded as an indictment, especially when weighed against the higher thresholds that must be applied when considering any candidate's suitability for the position of Chief Justice.

17. Since his appointment as a judge to the Constitutional Court, Justice Mogoeng has been the author of only five judgments (as part of a majority judgment), and two dissenting judgments, one of which is the McBride v The Citizen case and the other the Le Roux v Dey case; both of which are discussed below.

18. Leaving aside the content of his judgments, the paucity of his contribution (both as a judge and an advocate) is a serious concern. It leads to the conclusion that his capacity to produce judgments of reportable standard (the basis for guidance and precedent) is lacking in terms of what is to be expected of a suitable candidate for the position of Chief Justice.

On the basis of the above, Justice Mogoeng does not currently possess the legal skills necessary to equip him for the position of Chief Justice. The absence of commercial and civil judgements in Justice Mogoeng's judicial history is evident.

B) An unwavering adherence to the Constitution and the principles it enshrines

19. Justice Mogoeng's failure to meet this requirement reflects the greatest degree of concern regarding his nomination.

In two of the six Constitutional court cases in which he has thus far contributed - and hence provided an insight into his ability to apply and uphold the Constitution - he has fallen substantially short. He has failed to uphold the traditions of good jurisprudence and, most worryingly, the constitutional principles themselves.

20. In Justice Mogoeng's solitary dissent from the majority in the Le Roux vs Dey case he has - if not expressly, then by implication - indicated his belief that being labelled a homosexual is demeaning to the extent that it would found a claim for defamation. Justice Mogoeng was the only judge on the bench who held that one could successfully sue for defamation on the grounds of being depicted as a homosexual. His approach has widely been interpreted as homophobic. The reasons advanced by Justice Mogoeng during the recent JSC interview reflect poorly on his appreciation of his duties as a constitutional judge.

His initial response upon being questioned as to his failure to provide reasons, was that he had not had the requisite opportunity to formulate his own considered response to a minority judgment that was being circulated shortly before the judgment in the matter had been handed down. His further response that he ought, in retrospect, to have provided reasons for his dissent, albeit by providing brief or possibly even superficial reasons, is as concerning as is his failure to provide reasons in the first instance.

As a judge of the Constitutional Court, such an argument is disconcerting as it could reasonably be expected that all judgments by the highest court are properly considered by all its judges with regard to all the facts and the relevant law. Not only does this explanation by Justice Mogoeng create a negative impression as to his own reputation, but more crucially so with respect to that of the Constitutional Court.

21. Given that Justice Mogoeng refused and/or declined to give reasons for his dissent in Le Roux v Dey, an obvious conclusion is that Justice Mogoeng couldn't give reasons for his dissent at the time of the judgment without undermining the Constitution, particularly in relation to constitutionally protected human rights.

22. The Constitution is clear on the right to freedom of sexual orientation (s 9 [3]).The equality that gay and lesbian people now enjoy in this country is something that has, to date, been fiercely protected by the Constitutional Court.

23. In Mphahlele v First National Bank, the Constitutional Court held that "in terms of the S 1 of the Constitution, the rule of law is one of the founding values of our democratic state, and the judiciary is bound by it. The rule of law undoubtedly requires Judges to be accountable and not to act arbitrarily. The manner in which they ordinarily account for their decisions is by furnishing reasons. This serves a number of purposes. It explains to the parties, and to the public at large (which has an interest in courts being open and transparent) why a case is decided as it is. It is a discipline which curbs arbitrary judicial decisions." (SA 667, paragraph 12)

24. Our concerns in this regard are aggravated by the fact that Justice Mogoeng is an ordained pastor of the Winners Chapel International (church) which holds the view that homosexuality is a "sexual perversion" and a "deadly disease" from which sufferers must be delivered. Various church leaders have confirmed that Justice Mogoeng is a member of the Johannesburg branch and provides pastoral services.

25. Judges must take an oath or solemn affirmation according to schedule 2, item 6 of the Constitution upon taking office. The oath reads as follows:

I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.

26. All South Africans are constitutionally guaranteed the right to freedom of religion and Justice Mogoeng is no exception. It is argued that a conflict existed between his right to follow the religion of his choice and the abovementioned oath.

The relevant question is whether or not he will be able to - as he swore to do - "administer justice to all persons alike without fear, favour or prejudice". There is no inherent ethical problem with him holding a particular religious view as a pastor and a Chief Justice, provided such views are not in conflict with the values enshrined in the Constitution. The unsatisfactory explanations offered by Justice Mogoeng at the JSC interview regarding his dissent in the Le Roux v Dey case, leads to the conclusion that he may be incapable of putting his constitutional duty first as is required of him as a judge of the Constitutional Court.

27. Of deep concern is the fact that this apparent moral conservatism has unfortunately presented itself in numerous cases where gender violence has been in issue; despite his avowed commitment to transformation of the judiciary along gender lines.

28. While Justice Mogoeng was a judge in the High Court in 2001, he dealt with an appeal where a woman was tied up with wire and dragged for 50 metres behind her boyfriend's car (S v Mathibe). The victim was dragged at some speed and sustained "several abrasions on her stomach, right thigh and both knees". The accused did not allow her to see a doctor the same day - it was only the following day that she received medical treatment.

29. The original sentence handed down reflected an effective two years' imprisonment; the reasons for such sentence by the lower court clearly voiced by the magistrate: being a prevalent type of offence against women in the area; the dragging of a woman in this way was "ancient and barbarous"; and that the two-year sentence was meant to serve as a deterrent.

30. Justice Mogoeng, however, found that the girlfriend had "provoked" the accused. The Judge regarded this as a mitigating factor. While the woman was found to have suffered serious abrasions, it was found by Justice Mogoeng that another mitigating factor was that she did not "suffer serious injuries". Justice Mogoeng on appeal reduced the original sentence of the magistrate to a term of imprisonment with the option of a fine.

31. From another appeal judgement delivered by Justice Mogoeng in S v Moipolai, similar issues arose. The appellant was convicted of raping his eight-months pregnant common-law wife and sentenced to 10 years' imprisonment.

Although Justice Mogoeng upheld the conviction he reduced the sentence to five years, suspended in total for five years. Justice Mogoeng agreed that the assault and the rape - in front of a third party - were aggravating aspects.

However, Justice Mogoeng was of the view that the mitigating factors should have been given more weight. These included that:

o The appellant and complainant were not strangers;

o "In all likelihood the reason why the appellant had asked the complainant to come over to his parental home that night, was so that they could have intercourse together";

o "Similarly, the complainant must have come knowing that this was either likely to happen or was going to happen for sure";

o "The rape should, therefore, be treated differently from the rape of one stranger by another between whom consensual intercourse was almost unthinkable";

o "But for the presence of [the other person] the appellant and complainant would probably have had consensual intercourse".

32. In addition to the arguments above, Justice Mogoeng reasoned that because the relationship between the two was akin to marriage "the relationship is such that it renders the intercourse incapable of being legally categorised as rape". When this case was heard in 2005, marital rape had already been proclaimed illegal under the Family Violence Act in 1993. It is unclear how Justice Mogoeng could have erred in such a material way.

33. S v Modise is another pertinent case; it concerned an appeal against a conviction and a five-year prison term laid down for the attempted rape of the Appellant's estranged wife. The two had not shared a bed or had sex in almost a year, prior to the incident. The appellant returned to his old home (where the complainant lived alone since the separation) and entered the bed.

When the complainant later went to bed, the appellant tried to have sexual intercourse with her, which she refused. He then strangled and pinned her down, ripped off her panties (worn under her nightdress) and tried to rape her.

She managed to break free and ran to the safety of the neighbour's house, in the process of which she fell and injured herself.

34. Justice Mogoeng felt that the sentence was too harsh. In his judgement he played down the severity of the violence, saying the appellant "neither smacked, punched or kicked her" and that the initial trial had overstressed the appellant's previous assault conviction.

In line with the previously discussed case (S v Moipolai), Justice Mogoeng once again used as mitigating argument the fact that the complainant and appellant were married. He stated that the case was "not comparable to a case where the lady comes across a stranger on the street who suddenly attempts to rape her". The full suspension of the five-year sentence followed.

In S v Madukanele, a male rape case, Justice Mogoeng was of the view that the sentence of two years' imprisonment was - in contrast to his other abovementioned rape judgements - too lenient. He felt that a sentence of eight to fifteen years would have been appropriate. At this time, male rape was not yet recognised by law and punishable as indecent assault only. Nevertheless, Justice Mogoeng stated that this sentence ignored the "degradation, the violation of bodily integrity, the injuries sustained by the complainant, the accused's abuse of trust and hospitality ... and all other considerations that necessitate the imposition of severe penalties for the rape of a female, which should equally have been given expression to."

Consequently, Justice Mogoeng refused to certify the original sentence.

35. In S v Mathule, a 2004 Bophuthatswana High Court appeal case, Justice Mogoeng was of the view that the sentence of life imprisonment for the rape of seven-year-old was excessive. As mitigating arguments he held the following: "the appellant is 31 years of age, he is unmarried, he is unemployed, he is suffering from chronic epilepsy, his highest qualification is standard 7 and he is staying with his unemployed mother."

36. The arguments do not explain the relevance of these factors in this case.

They seem arbitrary and most worryingly illogical. His views display a profoundly misguided appreciation of the seriousness with which child rape should be dealt with in our society.

37. On 6 February 2008, the High Court ruled in Robert McBride's favour for a defamation of character claim against the Citizen newspaper for articles published during 2003/2004 referring to him as a murderer and a criminal arising from his conviction for the Magoo Bar bombing, and questioning his appointment as a Police Chief. McBride had argued that he was not a murderer, as his conviction for murder had been overturned by the amnesty process under the Truth & Reconciliation Act.

The Supreme Court of Appeal subsequently upheld the ruling of the High Court, before it was overturned by the Constitutional Court.

38. The Judgment in favour of the Citizen was hailed as a general victory for the right to freedom of expression. However, Justice Mogoeng disagreed with the other judges on the bench. In penning his dissenting judgement, he stated:

"I, however, part ways with Ngcobo CJ and Cameron J [other sitting judges] with regard to their conclusion that statements that Mr McBride is a murderer and a criminal are protected by fair comment and are not malicious. In my view these statements are part of a well-orchestrated character assassination campaign waged by the Citizen against Mr McBride."

39. In this case, Justice Mogoeng motivated his minority view on the basis of "traditional values and moral standards" rather than providing a well-reasoned legal argument for his viewpoint.

40. In all the above cases, the principles of openness, transparency and accountability are lacking and the conclusion appears inescapable that Justice Mogoeng does not embody the values expected of members of the judiciary by our Constitution. Furthermore, his failure to take into account the change of law concerning the legality of rape within marriage points to a failure to keep abreast with developments in law. Justice Mogoeng's seemingly prejudiced outlook on sexual violence against women, in contrast with sexual violence against men, is very problematic. His stance on child rape is even more so.

41. His judicial history suggests that he, at best, either has not kept abreast with changes to the law relating to sexual violence or does not respect the law on gender violence, or, at worst, purposefully digresses from it.

C) A fiercely independent, enquiring and logical mind

42. This requirement, a prerequisite for any judge to succeed, and crucial for the Office of the Chief Justice, appears to be lacking.

43. When one considers the two Constitutional Court cases where he formed part of the minority panel, a dubious picture emerges. In the above-mentioned case (Le Roux v Dey), he elected not to give reasons for his dissent and in the other case (Glenister v President Zuma), he had the benefit of simply concurring with the dissenting judgment of Ngcobo CJ.

44. The lack of considered and reasoned judgments by Justice Mogoeng illustrates the absence of a fiercely independent, enquiring and logical mind.

An enquiring mind would inevitably substantiate the conclusions drawn by way of a prolific case law history. This is clearly not the case with Justice Mogoeng.

45. It is concerning to note that, at the recent JSC interview, Justice Mogoeng attempted to justify his questionable lenient approach in the above three sexual offences cases against women by making reference to decided cases handed down before the advent of democracy in 1994; despite the fact that more recent Supreme Court of Appeal decisions were available, and that the law on sexual offences had changed substantially prior to the cases having been decided by Justice Mogoeng, therefore making the cases of the Supreme Court of Appeal to which Justice Mogoeng referred, in large measure, irrelevant.

D) Practical sensibility

46. During the time when Justice Mogoeng served as Judge President in the North West Province, he served as presiding officer in S v Dube. His wife appeared as the state prosecutor in the case.

Judge Mogoeng failed to inform the accused of this fact and the Supreme Court of Appeal (SCA) found that the failure of then Judge President Mogoeng to recuse himself when his wife presented argument for the State in the High Court, constituted an irregularity which vitiated the trial in its entirety. The SCA set aside the conviction of the High Court and referred the case back for rehearing before a differently constituted bench.

47. The SCA pointed out that the enquiry to determine whether a judge should recuse him or herself "involves a value judgment of the court applying prevailing morality and common sense" and went on to say that:

"A cornerstone of our legal system is the impartial adjudication of disputes which come before our courts and tribunals. What the law requires is not only that a judicial officer must conduct the trial openmindedly, impartially and fairly but that such conduct must be manifest to all those who are concerned in the trial and its outcome, especially the accused. ... In this country a judicial officer was held to be disqualified in a case where his wife was called as a witness. In S v Sharp the complainant was the magistrate's wife. He presided in a trial where his wife testified. The court on review held that the magistrate had a direct personal interest in the outcome of the proceedings and that it was difficult to conceive of a more obvious example necessitating recusal. In the case such as the present, where there is a close relationship between the presiding officer and one of the legal representatives, it appears to be undesirable if not improper for such judicial officer to sit in the matter."

48. Regardless of whether or not the situation led to any actual bias being exerted by Justice Mogoeng, in failing to inform the Court of his relationship with the state prosecutor,he called into disrepute the Constitution's instruction for an impartial and fair public hearing.

49. Hence, in this case, the SCA placed on record that Justice Mogoeng lacks the common sense required from a judge, let alone a Chief Justice, a position for which he is being nominated.

50. Justice Mogoeng's reliance at the JSC interview on the conduct of former chief justices and other justices where their children had appeared before them in court (as justification of his approach to allow his wife to appear as a prosecutor in cases where he conducted appeals as a presiding judge) is distinguishable from his conduct. As stated above, the Supreme Court of Appeal ruled such an approach by Justice Mogoeng irregular, whilst no pronouncement has been made by the courts on the question as to whether appearances by children as counsel before their parents as judges are to be regarded as permissable.

E) The support, both intellectual and collegial, from members of the Constitutional Court, the judiciary as a whole, and the wider legal fraternity with whom he or she is destined to interact and work

51. Much has already been said in the media by members of the legal community regarding the nomination of Justice Mogoeng. Most of these comments have been anonymous and unfavourable to the nominee.

Whilst the instinct is to disregard these comments as deriving from lawyers with a racial or political bias, this is too glib a response to the extent of the opposition to his nomination. The Cape, Johannesburg and Eastern Cape Bars have already stated that they do not support the nomination of Justice Mogoeng for the position of Chief Justice.

52. In my view, it is preferable that the next Chief Justice should promote the principle of "broad" representivity as required by the Constitution.

53. However, to appoint to the position of Chief Justice a person who does not qualify in terms of the criteria set out above, is to degrade the office of the Chief Justice and expose that office and the current nominee to denigration by those persons he is meant to lead.

F) Exceptional administrative, financial and personal management skills

54. I find no evidence of Justice Mogoeng's administrative or financial skills, and as such cannot comment on his suitability in this area.

55. Given the newly expanded tasks of a Chief Justice, the President must ensure that any new Chief Justice has a proven track record in this area too. The President's statement regarding the reasons for Justice Mogoeng's nomination, gives no comfort of Justice Mogoeng's ability in this regard.

56. The Chief Justice has an important role to play in leading the Constitutional Court, and the judiciary as a whole. Many judges, including Constitutional Court judges, do not support the appointment of Justice Mogoeng as Chief Justice.

57. It is also worth bearing in mind that the office of the Chief Justice interacts not only within the local context but also within the international sphere.

Justice Mogoeng appears to have no international experience and his appointment as Chief Justice could well erode the international standing of the Constitutional Court.

G) Judicial Temperament

58 It is common cause that the judicial temparment of a justice of the High Court is of crucial importance in ensuring that justice is not only done, but also seen to be done. This requirement is of particular importance to the incumbent for the position of Chief Justice.

Whilst the above requirement cannot and should not be over-emphasised, it is important to note the importance of being able to maintain a considered and collected composure at all times, in particular when facing critical questioning by an enquiring JSC as well as in the eyes of the public. Justice Mogoeng's uncontrolled and inexcusable conduct in reply to a particular commissioner's question during the JSC interview was reprehensible - particularly in light of the fact that it took place not only during his interview for the important position of Chief Justice, but also in full view of the public. The fact that his uncontrolled anger was directed to the Deputy Chief Justice in the above circumstances makes his conduct totally unacceptable and inexcusable.

CONCLUSION

It is concerning to note the extra-ordinary number of objections raised by the various submissions submitted to the JSC.

Various submissions were received expressing a lack of support for the nomination of Justice Mogoeng as the President's "preferred candidate". Such objections were received from inter alia the following institutions:

o Section 27 representing the Sonke Justice Network, Lesbian and Gay Equality Project and the Treatment Action Campaign (TAC)

o The Cape Bar Council

o The Eastern Cape Society of Advocates

o Johannesburg Bar Council

o Nadel

o National Forum for Advocates

o The Faculty of Law of the University of Pretoria

o 9 USA-based law professors

o The School of Law, Witwatersrand University

o Women's Legal Centre representing the Msimanyane Women's Support Centre, Open Democracy Advice Centre, People Opposed to Women Abuse, Rape Crisis Cape Town, Tshwaranang Legal Advocacy Centre, UCT Law Race and Gender Unit, UCT Gender, Health and Justice Research Unit

Notice should also be taken of the late submission of Cosatu, which noted its objection to the candidacy of Justice Mogoeng in the strongest possible terms.

It is thus clear that, in stark contrast to the appointment of former Chief Justice Sandile Ngcobo by yourself in October 2009, the appointment of Justice Mogoeng is not poised to act as a unifying measure in a judiciary and legal system marked by a difference in approach, views and background, a factor that will require the appointment of a Chief Justice capable of providing undisputed and unchallenged leadership.

In conclusion, I cannot in good conscience support the nomination of Justice Mogoeng Mogoeng for the position of Chief Justice. I therefore recommend that you consider alternative candidates for the position of Chief Justice, or, alternatively enable parties to nominate candidates for an interview with the Judicial Service Commission.

Issued by the Democratic Alliance, September 5 2011

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