A Questionable Appointment

By Sarah Logan

In early September, South Africa’s Judicial Services Commission (JSC) interrogated President Jacob Zuma’s nominee for the position of Chief Justice of the Constitutional Court, Justice Mogoeng Mogoeng, in an effort to establish his suitability for the top judicial post in South Africa. The JSC’s interviewing of Chief Justice nominees is a procedure provided for in South Africa’s Constitution. It is a crucial element in South Africa’s exemplary system of checks and balances and is designed to preserve the independence of the judiciary. Theoretically, the President is unable to appoint his choice of Chief Justice until he has consulted with the JSC and leaders of opposition parties, receiving and considering their comments.

For the first time since the advent of South Africa’s democratic dispensation in 1994, there has been a huge public outcry over the President’s nomination for Chief Justice. The resounding opinion is that Mogoeng is not a suitable candidate for the post in light of his minimal constitutional law experience, and his questionable deviation from enforcing a number of key rights and values enshrined in the Constitution. Of primary concern to critics is Mogoeng’s lenient sentencing of rapists, predominantly in cases of marital rape or rape where, according to Mogoeng, only “minimal suffering” was caused to victims. Such lenient sentences were handed down in apparent defiance of minimal sentencing laws.

There is a reason South Africa is commonly referred to as the rape capital of the world, and Mogoeng’s leniency towards rapists reveals a staunchly patriarchal attitude towards women. This does not bode well for one mandated to protect and uphold the constitutional rights of women, children and other vulnerable groups. Mogoeng is, additionally, an ordained pastor of The Winners Chapel, a church that embraces traditional values and is notably intolerant of homosexuality. Many believe that Mogoeng demonstrated such intolerance or, at the very least, showed ambivalence to gay rights in the recent Constitutional Court judgment of Le Roux and Others v. Dey.

Mogoeng has shifted much responsibility for his dubious judgments to having followed pre-democracy era precedent instead of rulings made after the adoption of the Constitution. Logically, the more recent constitutional era precedents should have been followed.

There are also several factors in Mogoeng’s favour, such as his experience as Judge President of the North West, and the significant contributions he has made to the strengthening of the judiciary and the promotion of access to justice in his province. But one cannot help but wonder why Mogoeng would receive the President’s nomination as Chief Justice over more reputable candidates such as Justice Dikgang Moseneke, the current Deputy Chief Justice. Moseneke is undeniably one of South Africa’s most experienced and respected jurists and had been widely predicted to take the reins of the Constitutional Court at this juncture.

Why President Zuma would persist in overlooking Moseneke and instead nominate Mogoeng for Chief Justice can only really be understood in light of the growing hostility between the executive and judicial arms of government in South Africa.

ANC Secretary General, Gwede Mantashe, rather accurately summed up the real issue at play. He stated that “the independence of the judiciary and separation of powers must never be translated into hostility, where one of those arms becomes hostile to the other”. He added that “[the country] can’t have a judiciary that seeks to arrest the functioning of government”.

Mantashe cited the case of Glenister vs. President of the Republic of South Africa and Others as a case in point, where the executive felt the judiciary moved to prevent them from operating in an unrestricted manner. The Glenister case concerned the drafting and passing of national legislation to effect the disbanding of South Africa’s independent organised crime combatting organisation, the Scorpions, and their replacement with a new crime fighting organisation, the Hawks. The Hawks, instead of being independent as their predecessors were, would fall under the authority of the National Police Commissioner.

Such a move came in the wake of the Scorpions’ investigation into South Africa’s then National Police Commissioner, Jackie Selebi, on charges of corruption (Selebi was ultimately convicted of the charges). It was believed that, as a result of witnessing Selebi’s downfall, some within the government became scared and moved to protect themselves from the same scrutiny by the Scorpions. By placing the Hawks within the broader police department, the government severely constrained the Hawks’ independence, ensuring that they were unable to function independently to investigate organised crime within the top echelons of government.

Although much of the country was in uproar over the disbanding of the Scorpions, it was Hugh Glenister, an unknown South African businessman, who launched a court action against the Presidency in this regard. When the matter eventually came before the Constitutional Court, the majority of the court found that the government’s replacement of the Scorpions with the Hawks was unconstitutional, but such arrangement remained in place nonetheless.

Whilst defending President Zuma’s nomination, and in his reference to the Glenister judgment, Mantashe stated, “That judgment itself seeks to cast aspersions on the work of Parliament” and that “once you have that kind of judgment that ventures into political weighting of views, then it’s a slippery road we have embarked on”.

It is interesting, and somewhat frightening, to note how the Constitutional Court’s routine measuring of legislation against the Constitution in order to ascertain its constitutionality is interpreted by the executive as the judiciary weighting political matters. It is also highly discomforting to realise that the executive views such a judgment to not only be political, but to be hostile towards the executive and the legislature, when the judiciary is doing no more than fulfilling its constitutionally-mandated role as a check and balance on the exercise of power.

It is within the context of the growing antagonism between the executive and judiciary branches that Mogoeng received and accepted President Zuma’s nomination for Chief Justice. It is feared that Mogoeng may exhibit deference to the executive, either as a result of his indebtedness to President Zuma for his sudden rise through judicial ranks, or for other reasons. Although Mogoeng’s appointment has since been finalised, his interview with the JSC failed to allay concerns held by many critics, and rumblings of legal action to challenge his appointment continue unabated. What appears to be increasingly clear, however, is that South Africa’s ruling ANC is beginning to grow resentful of the checks and balances placed upon the executive and enshrined in the very Constitution and democratic dispensation that many ANC members sacrificed so dearly for in the past.


Sarah Logan is currently practising as an attorney in Johannesburg, predominantly in commercial law, although her interests and true passion lie in working towards the attainment of democracy and good governance in Africa, and the achievement of the social and economic betterment of all of Africa’s people.


17 September 2011