The DA's Proposed Challenge to the Appointment of Chief Justice Mogoeng is Seditious

by Vuyani Ngalwana

If anyone had any doubt that the Constitutional Court is fast becoming a political battleground through which contestants compete for dominant space in which to assert their philosophical leanings, the Democratic Alliance (DA) has made this perfectly clear.

The DA has taken the view that if it can’t beat the ANC at the polls, it will seek to impose its philosophy through the Constitutional Court by ensuring no candidate whose philosophy seems anathema to its own takes the reigns there. The ANC calls it “counter-revolutionary”. I call it seditious.

It seeks to do this by challenging the President’s appointment of the chief justice. Since its application papers have not yet been made public, one can only speculate about what relief the DA will seek and what the bases therefor will be. My guess is that it will seek a review application to set aside the decision of the JSC and the President.

The basis for the review application is likely to be, among other things, that Justice Mogoeng is not the best candidate for the position and that the JSC acted capriciously in refusing to entertain the DA’s eleventh hour proposal of another candidate for consideration and interview.

If that is what the DA has in mind, it is likely to fail in my view. Let me tell you why.

Section 174(3) of the Constitution is the provision under which the President exercises the power to appoint the Chief Justice. The President, and only he, has that power. The only limitation is that he must consult the JSC and leaders of political parties represented in Parliament before making the appointment.

In consulting, the President is not required by the Constitution to obtain the “approval” or “acquiescence” of the JSC and political party leaders in the choice of his preferred candidate for Chief Justice. Meaningful consultation does not mean that at all. All it means is that the President must be open to persuasion; but the final decision is his and his alone. The DA seems to have lost sight of this and that is likely to be the first soft under-belly of its challenge.

I was initially sceptical about Justice Mogoeng’s nomination. I decided to fly down to Cape Town and satisfy myself that I was right in my scepticism. My mind was made up that he was not a suitable candidate for the job. But after listening to his address, and to his responses to sometimes virulent attack, I changed my mind. I am now convinced that Justice Mogoeng is suitable for the job.

That leads me to the second weakness in the DA’s case. It says Justice Mogoeng is not the best candidate for the job because he is not “exceptional”. That is not the standard set by the Constitution. Section 174(1) describes succinctly the qualification criteria for a judge: “a fit and proper person”. As a Constitutional Court judge, Justice Mogoeng is clearly “fit and proper”. There are no special criteria for a Chief Justice.

Thirdly, the DA baulks at the nomination of a single candidate for the position of Chief Justice. It prefers that the President selects his candidate from a list of “exceptional” persons. There is absolutely no basis for this in the Constitution. It is in the appointment of other judges of the Constitutional Court that the Constitution makes provision for selection from a list of candidates. Not so in relation to the appointment of the Chief Justice.

Fourthly, the DA attacks Justice Mogoeng for not having appeared as counsel in the Appeal Court in reported judgments, not having many reported judgments in his name as a judge, and not having produced commercial and civil law judgments.

Quite apart from ignoring historically skewed briefing patterns in South Africa, where black practitioners have largely been seen as good enough for legal aid work and would not see a commercial brief in the course of their practice, this attack also displays ignorance of the dynamics involved in the decision as regards what judgments get reported.

Speaking from experience, I have acted in the High Court and sat with senior judges who told me I should mark 3 of my judgments reportable. I did. They have still not been reported. The DA seems unaware of the fluidity of the criteria for reportable judgments.

Fifthly, the DA attacks Justice Mogoeng’s religious beliefs and says this will be an impediment to “an unwavering adherence to the Constitution”. The Constitutional Court has in at least two judgments recognised the “presumption of impartiality” and integrity in a judge. International instruments on judicial ethics do too. The DA seems to presume the opposite, that Justice Mogoeng will place his religious beliefs above his oath of office. This is wrong.

Sixthly, the DA attacks Justice Mogoeng as being gender insensitive. In support it refers to dicta in a handful of cases, ignoring scores of others where Justice Mogoeng expresses his distaste for sexual assault and rape on women. It also ignores the fact that deciding on an appropriate sentence is not an exact science, as demonstrated by at least two other post-Constitution judges of the Supreme Court of Appeal who reduced a life sentence in a rape case the facts of which are too ghastly to repeat here.

Seventhly, the DA attacks Justice Mogoeng as lacking the intellectual rigour to be Chief Justice. There is no such requirement in the Constitution. It is in any event factually incorrect. Clearly the DA did not listen to Justice Mogoeng’s answers. Perhaps it is offended, as persons of a liberal hue tend to be, that a black professional dared to articulate himself confident in his considerable abilities, confident in who he is and with the sureness of purpose as regards what real access to justice for ordinary South Africans requires. “Arrogant” is usually the chant of choice – and was.

Finally, the DA has a short memory. When former Chief Justice Chaskalson was appointed President of the Constitutional Court in 1994, he had never sat as a judge, had not a single reported judgment in his name as a judge, and practised largely human rights and public interest law at the Legal Resources Centre. Lack of commercial law practice was not an impediment to his elevation.