Book Excerpt: Richard Calland’s recently published book, The Zuma Years – South Africa’s Changing Face of Power (Zebra Press, 2013), X-rays South Africa’s body politic: from the cabinet to the ANC to civil society. In Chapter 11, entitled The Judges, Calland focuses on the power play and politics within, and surrounding, the judiciary. He also asks pertinent questions about a possible dumbing down of South Africa’s superior courts, the deepening divide between conservatives and progressives at the Constitutional Court and the sometimes binary reductionism expressed by the Judicial Service Commission as it grapples with the transformation of the judiciary:
The gents’ bathroom in the Cape Town International Convention Centre (CTICC) is elegantly appointed, but there is a design flaw that no architect could have foreseen. The passageway between the basins on one side and the urinals on the other narrows substantially, creating a curious funnel effect.
What no one could have easily anticipated was the sort of occurrence that took place there around teatime on Saturday 3 September 2011, the first day of Justice Mogoeng Mogoeng’s momentous two-day public interview for the position of chief justice of South Africa by the Judicial Service Commission (JSC).
Having sat transfixed all morning and into the early afternoon, I had dashed to the Sea Point municipal hall to watch my daughter, India Jane, dance in the annual ballet eisteddfod examinations and then rushed back to town hoping not to have missed too much of the drama unfolding inside the CTICC. As I raced up the stairs, I noticed people beginning to leave the hall and, realising that it was the tea break, I changed direction and entered the gents’ lavatories.
First in, I quickly relieved myself and headed towards the basins, but found myself face to face with deputy chief justice Dikgang Moseneke. It was my second conversation with him that day and, curiously, the second in the vicinity of the bathroom. The thought crossed my mind: people would begin to talk …
‘Ah, Richard, we meet again. How do you think it’s going?’ he asked with a twinkle in his eye.
‘I think you know the answer to that question,’ I replied.
With a chuckle, Moseneke began to say something else, but at that moment, the interviewee himself arrived on the scene.
Since, as I say, the aperture was narrow, and since Moseneke and I were pretty much blocking it, Mogoeng had little choice but to stop and say something.
About an hour earlier he had lost his temper in an exchange with Moseneke, who was chairing the JSC hearing, and had been compelled to apologise there and then. Now, in the confines of the marbled bathroom, Mogoeng found himself stutteringly trying to repeat his apology.
‘Deputy CJ,’ he began, ‘er, um, I really wish to apologise for what happened in there …’
With an imperious wave of his hand that wafted over the head of the much shorter Mogoeng, Moseneke dismissed the shuffling attempt at contrition: ‘This is not the time or place for such a thing.’
Indeed not. Mogoeng tried to turn away from Moseneke, only to find me impeding his escape route, whereupon, out of some kind of misplaced Eng-lish-politeness-in-an-awkward-moment, I sought to introduce myself to the soon-to-be-appointed, controversial chief justice.
By now, Lex Mpati, the president of the Supreme Court of Appeal (SCA), had entered the scrum. In demeanour and manners as ‘English’ as I, Mpati paused momentarily, presumably to contemplate the strange sight of Moseneke, Mogoeng and Calland in the bottleneck. Then, whether pushed by the growing numbers behind him or in frustration at the blockage in front, I do not know, he abandoned his usual courtesies and, dropping his shoulder, deployed skills he could have only learnt from his favourite game, rugby.
A loose maul immediately ensued and our curious little ménage à trois was broken up.
Moseneke was completely unruffled. (In fact, it is hard to imagine what event could penetrate his debonair composure.) Twice now overlooked for chief justice, disappointment must surely have tested his suave sangfroid.
The first time was fair enough: President Zuma chose Justice Sandile Ngcobo ahead of Moseneke when Chief Justice Pius Langa’s term of office came to an end in mid-2009, even though Moseneke was the sitting deputy chief justice.
Ngcobo had been on the Constitutional Court longer than Moseneke and so could properly be described as his senior. Ngcobo also happens to be a very fine jurist and had been an outstanding member of the court, penning many of the most significant and progressive judgments. No one could reasonably criticise Ngcobo’s appointment in terms of competence and experience, just as they could have found no fault with Moseneke.
Moseneke knows full well why they – the Zuma establishment – did not want him as chief justice. At his birthday party in January 2008, shortly after Polokwane, Moseneke was quoted as having told his guests that he had another ten to twelve years left on the bench, and that he wanted to use his energy to help create an equal society. ‘It’s not what the ANC wants or what the [Polokwane] delegates want; it is about what is good for the people,’ he said.
Moseneke was referring to judicial independence – that delicate, yet vital, part of any constitutional democracy, and the subject of much power play in recent years. This can be considered a ‘natural tension’, for in any such democratic system where the judicial branch of government has powers of review over the executive and legislative branches – the ‘political branches’, as they refer to them in United States discourse – there is likely to be a certain amount of frustration or irritation when the unelected judiciary exercises its powers of review and overturns executive action or legislative law-making.
But there is a line, a thin line, over which the political branches may easily step if they express too much frustration or too much irritation and start, by deed or omission, to exert undue pressure or downright intimidation on the judicial branch.
It can easily get personal, too.
Moseneke was – and is – too much of an Mbekite. This might seem a curious thing to say, given that Moseneke is well known, and well regarded, for his political independence and non-partisanship. He was, after all, not a member of the ANC during his distinguished career as a lawyer prior to 1994, which was preceded by ten years on Robben Island, but a member of the PAC.
Mbeki, who appointed Moseneke to the Constitutional Court in 2002, had more than a soft spot for compatriots from the Black Consciousness Movement. Their approach fitted neatly with his own Africanist tendencies and lifelong commitment to the acquisition of rightful power by black people. As Anatomy of South Africa revealed, Mbeki’s most influential advisor came to be Mojanku Gumbi, who was also not ANC, but rather AZAPO-aligned.
Just as Moseneke shared many things with Mbeki – his cosmopolitan urbanity, his enjoyment of the cerebral, as well as finely cut suits – so, as with Mbeki, did this clash starkly with the rustic character of the Zumarites.
Mogoeng Mogoeng is in many respects the judicial equivalent of Zuma. Like chalk and cheese, he is to Moseneke what Zuma is to Mbeki.
And, sadly, South Africa is the worse off for it.
Back at the CTICC in September 2011, for the better part of two days, Moseneke tried ever so hard to conceal his contempt for Mogoeng. But he failed.
All day on the Saturday he tried, as he knew he had to, to hide his disdain for the jurisprudential inferior that had been brought before him. And all day, and most of the next, he failed.
And who can blame him for that? Mogoeng’s rise had been meteoric, to the point of implausibility. Born in 1961 in Zeerust, Mogoeng began his legal career as a Supreme Court prosecutor in Mafikeng in 1986. He was first appointed to the bench, as a judge of the North West High Court, in 1997. In 2002 he was appointed as judge president of the North West High Court – a court that, as Moseneke elicited from him at one point in his forensic dismembering, had just four judges – a rather less onerous managerial responsibility than that of chief justice as head of the whole judicial branch of government.
It is interesting that in his 2009 Constitutional Court interview, Mogoeng acknowledged this and actually used it as a reason why he should be appointed to the Constitutional Court – he described the North West High Court as a small court, in ‘a corner of a corner … I’ve gone as far as I can, I need to move up in the world’. In 2011, it seems the small size of the North West court was not an obstacle to him ascending to chief justice.
His nomination by President Zuma had elicited howls of protest from the human-rights sector, primarily on the grounds of his attitude towards rape, and gender issues more generally, in a number of cases over which he had presided in the North West High Court. In one 2005 case, Mogoeng reduced the sentence of a man convicted of the attempted rape of a seven-year-old on the basis that, even though he accepted the evidence that the girl’s vagina had been penetrated, ‘the injury she sustained is not serious’.
As the Southern Africa Litigation Centre (SALC) pointed out in its research, submitted to the JSC, ‘it is hard to see how an injury to a seven-year-old which results from sexual abuse can ever be classified as “not serious”’. Even allowing for the fact that, although abhorrent, ‘grading’ the severity of rape is not uncommon – it happens in the SCA – there were legitimate concerns about Mogoeng’s approach, for, in another case a year earlier, he had found reason to reduce the sentence of another convicted child rapist from life to the minimum permitted sentence of eighteen months on grounds that the SALC denounced as creating ‘the impression of arbitrariness … at worst, that child rape is not among the most egregious crimes in our country deserving the law’s full effect’.
In yet another case involving child rape, in 2007, Mogoeng dismissed the convicted man’s appeal but made a number of remarkably troubling comments, including: ‘One can safely assume that [the accused] must have been mindful of [the victim’s] tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop, notwithstanding the rape … there is no mention of limping or crying or anything of the kind, notwithstanding the complainant’s assertions that she was heartbroken and limping as a result of the sexual intercourse.’
It is difficult to know where to begin in responding to the inherent prejudices that underpin these words. It is even harder to explain how someone with such a hopeless – and dangerous – level of understanding of rape and the harm it causes, and the different ways in which this harm manifests itself, in a society such as South Africa’s in which violence against women and children is so prevalent, could become the country’s leading judge, other than as a representative of a patriarchal class that finds political representation in the form of President Zuma himself.
There were also concerns about Mogoeng’s religious beliefs – he is a member of the Winners’ Chapel International Church, an international congregation of which he is a lay preacher. Not long after his appointment had been confirmed, in a moment of extraordinary ill judgement in March 2012, Mogoeng circulated a flyer to an event in Johannesburg that was being addressed by the American evangelist and motivational speaker John Maxwell, in which the chief justice ‘requested’ the presence of the heads of court.
Apart from the obvious inappropriateness of such a ‘request’, given that the email was sent just days before the event that was to be held on a normal working Monday, it begs the question what exactly the chief justice thinks his heads of court and senior judiciary are doing with their time. Are they twiddling their thumbs, with blank diaries, and no cases to hear or judgments to write?
Mogoeng’s evangelical character was on vivid display during his late-2009 interview for a place on the Constitutional Court. These were important interviews – in terms of the powers of the Constitution and the balance of power in the body politic, the most important appointments to be made since the publication of Anatomy of South Africa.
Overall, 2009 was a big year for the court: four of its most senior judges were reaching the end of their terms: justices Pius Langa, Albie Sachs, Yvonne Mokgoro and Kate O’Regan. All four had been members of the court since it was first established in 1994. All four were not only stalwarts of that court, but had been among its most industrious, as well as progressive, members.
One of the many shifts in the anatomy of power since 2006 has been the shift in power on the bench and in the Constitutional Court generally. Prior to recent times, any attempt to speak of the ‘progressive’ or ‘conservative’ wings of the court – as commentators and legal academics will speak of the US Supreme Court, for example – seemed not so much inappropriate as unnecessary. The court, even when it differed, and even though there were different points of jurisprudential emphasis, was generally pulling in the same direction.
With its first two chief justices, Langa and his predecessor Arthur Chaskalson, the court had found leadership that was anxious to broker compromise and to do a great deal to preserve the intellectual integrity and collegial unity of the court.
Chief Justice Ngcobo was no less committed to this unity and to providing such leadership, though his leadership style was regarded by some members as being somewhat imperious.
Indeed, Ngcobo had a bold ambition, which to some was considered ‘imperial’: to build a far stronger judicial branch of government. Ngcobo unfortunately came and went in the blink of an eye – appointed by Zuma in 2009, his term was over just two years later, in 2011. Yet, in those two years, Ngcobo provided as much leadership, with clarity of vision, as any other chief justice in this country has ever done.
Indeed, had he stayed in office, I predict he would have become the greatest reforming chief justice in South Africa’s history. This, I appreciate, is a bold statement. And I am not entirely impartial. My own unit at the University of Cape Town – the Democratic Governance and Rights Unit (DGRU) – benefited from the very good relationship that I enjoyed and continue to enjoy with Ngcobo. But, my assertion is premised on this reasoning: he had the vision of an independent courts’ administration – independent of the Department of Justice and the executive arm of government – and the wisdom to understand its importance for the long-term democratic sustainability of the country. Moreover, he had the guts and the political clout to push it through.
Since Ngcobo’s departure, his successor, Mogoeng, has found to his increasing frustration that the executive has turned away from the idea, unsurprisingly, and has starved the Office of the Chief Justice (OCJ) of funding, placing one of its own staff (a senior justice department official) into the crucial position of secretary-general of the OCJ.
This has strengthened Mogoeng’s determination to stand up to the executive, and he finally lost his cool and expressed his anger at a meeting with the president and the minister of justice in early 2013. So, perhaps one should not write him off just yet; indeed, former Constitutional Court judge Kate O’Regan has suggested that we should not do so and should respect his office and his attempts to promote access to justice. Yvonne Mokgoro, brought in by Ngcobo, continued to serve Mogoeng for a while, but I was reliably informed as this book went to press that she had decided to give up the good fight and leave in frustration.
Perhaps Mogoeng will yet emerge as a strong and reforming chief justice. Though, if he does, it will be a remarkable turnaround from his early days in the position, when one of the officials managing the transition from one chief justice to the next, and who has subsequently gone on to greater things, told me Mogoeng was ‘hopelessly out of his depth, embarrassingly so’.
During the difficult days leading up to the unnecessarily premature end to Ngcobo’s term of office in August 2011, I found myself on a number of occasions, and in very different settings, having to defend Ngcobo’s record but also, far trickier, advocate for the retention of his position in the face of the legal challenge that had been mounted against President Zuma’s decision to extend his term.
Although there was considerable media interest in the fate of the chief justice and in the legal challenge to the extension of his term, and much chatter in the legal community, few legal commentators apart from my loquacious UCT colleague Pierre de Vos were willing to speak on the record.
Having sought to diminish my media appearances in recent years, on the basis that others needed to take and share the responsibility, I decided to respond to the high demand for comment and analysis in the Ngcobo case because I felt strongly that a very bad turn of events was about to occur. In fact, I put the case for his retention so strongly that at one point I could not help but feel as though I had become his spin doctor. So when the Mail & Guardian’s ‘Serjeant at the Bar’ column accused me of being Ngcobo’s praise singer, it was a fair, if somewhat cowardly (masked behind the anonymity of the column), comment.
Before returning to the current incumbent of the OCJ, it is necessary to dwell on the demise of former chief justice Ngcobo and necessary also to explain its relevance to the changing anatomy of power.
Ngcobo’s first goal as chief justice was to create space for the independent leadership that he believed was essential if the judicial branch of government was to flourish and to operate in the way that the Constitution envisages. Hence, his first objective was to establish the OCJ, from which he would be able to lead the reform of the administration of the judiciary and the building of a strong judicial branch of government.
To say that this was an important, nay historic, undertaking is a great under-statement. What was so intriguing, and so revealing, were the reactions of people I thought would know better. Slyly, in corridor conversations and at dinner parties, the legal establishment – especially the liberal legal establishment – cast aspersions on his intentions, at times implying that it was a self-aggrandising plan.
These were the same people who had expressed concern about the ‘imperial presidency’ of Mbeki. So there was consistency, at least. It is a core part of the liberal political disposition to be against the acquisition of power by any one body or institution or person. Fine, fair enough, not least in the context of a Constitution that is very clear in wanting to distribute public power across the system of governance.
But what is intriguing is this: when Mbeki built his ‘imperial presidency’ in the late 1990s and the early part of this century, it was in order to seek to provide stronger leadership from the top, based on a greater capacity to manage and coordinate government – the very weakness that was so lamented by the very same complainants. So, too, now with the judiciary: there were well-justified concerns that the judiciary was ‘too weak’ in relation to the executive branch of government which had designs to weaken it further.
But when Ngcobo took steps, necessary in my view, to build the power and authority to counterbalance the executive, it was viewed with great caution. This was partly because Ngcobo is very much his own man.
Although he has a very good sense of humour, enjoys a glass of good red wine and provides very good company over supper, he can come across as somewhat shy or aloof, and even awkward. In these respects, Ngcobo is different from the gentlemen’s club-able, easy-going Moseneke, who fraternises with the northern-suburbs Johannesburg legal community.
Needless to say, Ngcobo is not a part of the liberal legal establishment, who view him with some suspicion, even though when pressed they are more than willing to accept the strength of his intellect and his progressive track record as a jurist.
So when President Zuma announced his decision to extend Ngcobo’s term of office in March 2011, the liberal legal establishment did not feel the pinch of the dilemma that I felt. On the one hand, the law was plainly bad. In 2001, Parliament had purported to give the president the power to extend the term of office of a chief justice. This was an unhealthy, thoroughly rotten idea constitutionally, for when assessing the wisdom of a provision it is always worth pausing for a moment and considering how it might be used in the wrong hands.
In 2001, the purpose of the change in the law had been to extend the terms of office of Constitutional Court judges in order to specifically sustain for a little longer the term of Chief Justice Chaskalson. At the time, legal commentators such as my UCT colleague Professor Hugh Corder wisely expressed their concern that, much though they admired Chaskalson, it was bad practice to change the law for any one individual.
In any case, Chaskalson’s term was not, in the event, extended by the power that the president had reason to think Parliament had given him in section 8 of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 (‘the Judges’ Act’), which read:
A Chief Justice who becomes eligible for discharge from active service in terms of section 3(1)(a) or 4(1) or (2), may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years.
President Zuma wrote to Ngcobo on 11 April 2011 to request pursuant to section 8 of the Judges’ Act that he continue as chief justice. Accepting on the basis that he still had work to do in reforming the judicial branch of government – a project that was by then very much under way, as we’ll see below – Ngcobo wrote back accepting the request on 2 June.
Why Ngcobo waited so long to reply is known only to him. I have reason to believe that he was engaging the Presidency during this period, because Ngcobo knew that section 8 was very probably unconstitutional and he was, therefore, exploring whether his (re)appointment could be placed on a sturdier legal basis.
Ngcobo is a proud man, and he did not want to retain office – or appear to be trying to retain office – on the back of a faulty legal provision that could then be challenged. Understandably for someone whose respect for the rule of law is profound, he did not want to hold office in an unconstitutional manner.
Once Zuma announced that Ngcobo had accepted his request, a legal challenge was soon mounted to the effect that to give a sitting president apparently unfettered power to extend the term of a chief justice was a recipe for bad governance. A chief justice wanting to stay in office could curry favour by steering judgments in favour of the executive. Or, no less harmful, the perception could be created that he or she is doing so.
As a member of the executive committee of the Council for the Advancement of the South African Constitution, the organisation that I had helped found the year before, in 2010, I was involved in a discussion about whether to join the application to challenge the constitutionality of the appointment.
I agreed wholeheartedly with the principle at stake – that it was entirely wrong and unconstitutional for such a power to be in the hands of the president – but I was deeply concerned about what the consequences of the challenge would be. At one point, I recall saying that we should be careful, otherwise we could end up with Mogoeng Mogoeng as chief justice.
While some members of the legal community pursued the case solely because of the principle, I have little doubt that some did so in the vain and foolhardy belief that if Ngcobo went, their charming cocktail-party companion, Dikgang Moseneke, would replace him.
To reiterate, Moseneke would have made a very fine chief justice; he still could and should be chief justice. He, not Mogoeng, should have succeeded Ngcobo if the latter could not remain in office. But there was more likelihood of Zuma appointing Thabo Mbeki or Julius Malema than Moseneke – a fact borne out by what actually transpired in the days following the end of Ngcobo’s term at midnight on 14 August 2012.
I urged my colleagues on the CASAC exco not only to challenge the consti-tutionality of the appointment, but also to help the government find a constitutionally principled and enduring way of ensuring that Ngcobo could remain in office.
Looking back, I don’t think they listened or took my major point seriously – that while the short-term issue of presidential power was of substantial constitutional importance, there was a longer-term, macro issue of even greater significance: the independence of the judiciary. As one member of the JSC subsequently put it, the problem with the challenge to the extension of the term was that it was ‘constitutionally correct but administratively disastrous’.
Ngcobo, as I tried to explain to them and to anyone else who would listen, was engaged in a project of monumental reform: to build a truly independent judicial arm of government. In the current political climate, this was like trying to ascend Everest. He had achieved base camp with the creation of the OCJ, which was established as a separate department of state by a three-line presidential proclamation (No. 44 of 2010) dated 23 August 2010.
From small acorns grow large oaks. Few, if any, paid attention to the Notice when it appeared in the Government Gazette. I doubt if it received any column inches, despite widespread reporting about ‘threats to the independence of the judiciary’. Ngcobo was executing his revolution quietly, beneath the radar.
That he had got this far (and would get even further in the following year) was testimony not only to his vision and leadership, but to his political guile as well. Remarkably, he had built a viable relationship with the minister of justice, Jeff Radebe.
I say ‘remarkably’ because Radebe is no pushover. On the contrary, he is a tough and wily old fox, and a political bruiser – a natural survivor who was well aware of what the Polokwane Resolutions had said about the judiciary: they had called for more, not less, control by the executive. Yet here was Radebe being persuaded by the chief justice to relinquish some of the administrative power that the Department of Justice had over the judiciary.
We will never know if Ngcobo would have made the summit, though he was just days away from securing an independent bank account for the OCJ, which would have meant that the executive was acceding to his demand for budgetary independence. Now the Department of Justice is back in control: no separate bank account or budgetary independence, and a departmental apparatchik placed as secretary-general within the OCJ to keep an eye on Mogoeng.
I saw Ngcobo a few weeks after his term came to an end. He was staying at the Mount Nelson Hotel in Cape Town and we met mid-morning, him looking relaxed as well as suitably and immaculately attired in a neatly pressed blue polo shirt.
‘Tea or coffee?’ the waitress asked.
‘Tea, Earl Grey, please,’ I replied.
‘Excellent,’ Ngcobo said with a nod of approval. ‘I will have the same.’
I asked him how he had got as far as he had without attracting opposition from Radebe and despite the inclement political attitude towards the judiciary from the top of government. He told me how important it had been to meet with the minister of justice to explain his plans and his reasons, and how the minister had been willing to listen and grant him licence to proceed.
Indeed, Radebe had permitted the secondment to the OCJ of one of the ANC’s most experienced constitutional bureaucrats – Hassen Ebrahim, chief executive of the Constitutional Assembly back in the mid-1990s and author of Soul of the Nation, the excellent account of those historic days – to work on a report on the future institutional modality of the judicial branch of government.
My unit at UCT, the DGRU, had been contracted to conduct some of the necessary research for that report, which was then presented to a committee that Ngcobo had wisely set up under the chairmanship of his two predecessors, justices Chaskalson and Langa, and which included a number of legal academics, as well as former Constitutional Court justice Yvonne Mokgoro.
When I visited Ebrahim to discuss the last phase of our work with the OCJ in April 2011, I discovered that he and a small group of energetic researchers ably led by the talented Advocate Kevin Malunga (who was later appointed Deputy Public Protector – an encouraging appointment if ever there was one, I thought at the time, although, as I was finalising this book, Malungu seemed bent on undermining his boss, the Public Protector Thuli Madonsela, by criticising her to the justice committee in Parliament for reasons that only he can know but which appeared to be extremely suspect) were holed up in a rather dilapidated office block in downtown Johannesburg.
This made no difference to the unfussy Ebrahim, whose first words to me were, ‘Richard, this is the last frontier. And we have to act fast. The window will not remain open very long.’
Whether he had the prescience to know that Ngcobo’s term would not be able to be extended, or the political wit to think that Mangaung would slam shut any thoughts of progressive reform of judicial institutional independence, I cannot say. But I certainly think he was right.
And, in light of other changes to the anatomy of power, protecting the power of the courts, and the rule of law, was – and is – the last frontier.
With Ebrahim driving the project, the committee was able to panel-beat the report, which contained extensive recommendations about the future administration of justice in South Africa. The proposed new institutional modality would have created a separate court administration, such as the Norwegian Courts’ Administration in Trondheim that I had visited along with Chief Justice Ngcobo, SCA president Lex Mpati and several other senior members of the judiciary in June 2011, at the invitation of the Norwegian chief justice.
The report now lies gathering dust. Back in the Mount Nelson tea room that day, I asked Ngcobo about the future of the report. His already doleful outlook gave way to a graver look of disappointment that even his natural reserve could not conceal. Such a reform project, he said, requires the building of both trust and respect between the executive and the judiciary.
I asked, bluntly, if he thought the new chief justice could do the same and if he would be able to sustain the reform project. I cannot recall precisely what Ngcobo said, because on this occasion I was not taking notes, but what I do recall is that he indicated that it had required great strength and a certain level of experience, as well as a certain seniority and gravitas, to engage with Radebe and to persuade him – a typically thoughtful and diplomatic answer.
I then asked a leading question, suggesting that the new chief justice, being relatively junior, would find it difficult. Ngcobo did not respond; he simply tilted his head to one side, raised his eyebrows a tad and took another sip of Earl Grey.
When asked about his youthfulness during his JSC interview, Mogoeng had rather curiously chosen to compare himself with US chief justice John Roberts, adding that ‘there is nothing wrong with being fifty; I am six months older than President Obama’ – which hardly served to diminish the sense of hubris that he was conveying to the packed conference hall.
Mogoeng was certainly bristling with pent-up anger over what Radebe, who as minister of justice is a member of the JSC, had called the ‘vicious mobilisation against the president’s nomination’. Many in the human-rights community and other interested members of the legal community had turned up that Saturday.
Finally, I thought, the JSC is attracting appropriate levels of interest. Established under section 178 of the Constitution, its primary function is the appointment of judges. It therefore clearly has a very important formal power, for in the new South African system of government, considerable power is reposed in the courts, reflecting the desire of the drafters to make a clean break from the country’s apartheid past.
Prior to 1994, Parliament was the supreme authority, and the laws it passed could not be overruled by the courts. The Interim (1993) and Final (1996) Constitutions changed this. The Constitution not just empowers, but requires, the courts to declare any law or conduct that is inconsistent with the Constitution to be invalid (section 172).
The Constitutional Court is the highest court in the country on constitutional issues. It has the last word on whether a national Act of Parliament, a provincial Act or the conduct of the president is constitutional, and any decision of unconstitutionality on these matters by a lower court must be confirmed by the Constitutional Court (section 167(3)(a) and (5)).
It is perhaps unsurprising, given the extent of the power vested in the courts, including the power to overturn legislation passed by a democratically mandated Parliament (the so-called counter-majoritarian dilemma, in that in such a case unelected members of the judiciary overrule the choice of a Parliament and a government democratically elected by a majority of the people), that the role of the courts has been the subject of increasing contestation.
Tensions regarding the appropriate role of the judiciary in its relationship with other branches of government have been highlighted in comments made by President Zuma and ANC secretary-general Gwede Mantashe, among others, which have raised concerns about the courts overriding policy choices made by the elected branches of government.
These tensions have been exacerbated by the tendency for what might ordinarily be considered ‘political’ disputes to be resolved in the courts. Given the powerful role of the courts and the electoral dominance of the ANC, this trend is perhaps not surprising. But it does make the courts a crucial site of political, as well as legal, contestation.
This leads to scrutiny of the judges who occupy the bench, and how and by whom they are appointed. The JSC is the most important body in this respect, but the question remains, how influential is it in practice and, within it, which members have the most influence?
At its best, the JSC is a fine example of modern democracy at work. Unlike in many other countries, judges are interviewed for positions in all of the high courts, as well as the SCA and the Constitutional Court.
In the case of the Constitutional Court, the power of the JSC is circumscribed to some extent in that it must provide the president with a list of possible candidates for appointment, of three more than the number of vacancies to be filled, from which the president must choose.
In late 2009, there were four places to be filled and so the JSC needed to prepare a list of seven for the president. Over twenty people were interviewed at the JSC hearings in Kliptown: a long list, which contained legal heavyweights like the characterful polymath Dennis Davis, controversial Western Cape judge president John Hlophe, Labour Court judge president Raymond Zondo, who was to be appointed to the Constitutional Court three years later, and experienced SCA justices Azhar Cachalia, Mandisa Maya and Dunstan Mlambo (the latter was subsequently appointed to head the Labour Court and the Gauteng high courts). Then there were the rank outsiders, including unheralded high court judges such as Frans Legodi and James Yekiso, as well as Ntsikelelo Poswa, who withdrew his application at an abortive interview when it transpired that he would have to retire in less than a month due to his age. And then there was Mogoeng Mogoeng, who gave what can best and most politely be described as an eccentric performance that illustrated his skills as an evangelical pastor, but shed little light on his jurisprudential philosophy.
One observer described it as a ‘bizarre performance that induced great amusement amongst the onlookers’. Another, an MP who was sitting as a member of the JSC at the time, could hardly believe what was happening when, within twenty minutes of the interviews ending, the JSC had decided on the list of seven. ‘It was clear the ANC had already long decided who was going to be put forward to the president,’ she says now, looking back. ‘The rest of us went along with it because there were some quite decent names on the list – not the best maybe, but certainly not the worst … as to Mogoeng, well, I honestly thought he was there just to make up the numbers; I did not imagine for a minute that the president would actually appoint him.’
But the president did appoint Mogoeng: the process of neutering the Constitutional Court was under way. Zuma’s revenge, anti-intellectualism, dumbing-down, call it what you like: the last frontier was being breached.
Mogoeng was appointed along with justices Sisi Khampepe, Chris Jafta and Johan Froneman, while justices Leona Theron, Maya and Zondo were overlooked. Khampepe was regarded as solid, even though few judgments could be attributed to her name. That she was a woman was welcomed, given that two women judges had finished their terms, leaving only one on the bench: Justice Bess Nkabinde.
There are still just the two of them, four years later.
The position in the Constitutional Court created by Ngcobo’s departure in 2011 took almost exactly a year to fill, which was notable in and of itself; it took the JSC three attempts, with two sets of re-advertising and plenty of behind-the-scenes cajoling, to get the requisite number of four (the one vacancy plus three) for the interviews that were finally held in June 2012.
With others, I worked to encourage women lawyers to agree to be nominated for the shortlist. It was hard work. Directly and indirectly, I approached eight women, some already judges and some prominent legal academics. To save their own embarrassment, I will not name them, other than the one who did agree to be nominated by a number of progressive women’s groups, who were eager to do so, given Mandisa Maya’s progressive jurisprudential philosophy and fine track record and reputation as a member of the SCA.
One other woman judge agreed to be nominated, after considerable arm-twisting by an intermediary, but then after a few days of reflection changed her mind. Her reasons were much the same as the other six: she no longer trusted the JSC process as it had become too politicised; she thought that it was a foregone conclusion that Justice Zondo would be appointed regardless of the interview process; besides, she did not really want to serve a court led by Mogoeng.
In November, Zuma duly overlooked Maya and appointed Zondo from the list of four names submitted to him by the JSC.
The Constitutional Court used to be the jewel in South Africa’s new democratic firmament. Being on the court was regarded as one of the best legal jobs in the world. Now it is hard to get good people even to apply to be on it. How very sad.
As Mogoeng entered the conference hall that spring Saturday morning in 2011, accompanied by his wife and daughter, Moseneke looked up and greeted him with the words ‘Justice Mogoeng, you are the president’s nominee for chief justice’. He tried, at least I think he tried, to conceal the note of incredulity in his voice. But he failed.
‘Our task,’ the silver-tied deputy chief justice continued, ‘is to determine whether you are a suitable candidate to be appointed.’ Tembeka Ngcukaitobi, the eminent young constitutional law advocate from Joburg, leant over and whispered in my ear, ‘This is South Africa’s Clarence Thomas moment’ – a reference to the excoriating US congressional hearings into the conservative Justice Thomas’s nomination to the US Supreme Court by President George H.W. Bush in July 1991, hearings that centred on an accusation that Thomas had made unwelcome sexual comments to a subordinate female attorney.
One of the differences in South Africa is that whereas Congress can block a presidential nomination for chief justice, it is far from clear whether the JSC can do the same. According to section 174(3) of the Constitution, the president appoints the chief justice after consulting the JSC and the leaders of the political parties represented in the National Assembly.
‘After consulting’ is the weaker of the two versions of consultation that generally appear in legal tracts, including the Constitution; ‘in consultation’ being the other, stronger version.
‘In consultation’ means deciding together. In effect, this gives each of the consulting parties a veto power. In contrast, ‘after consulting’ means simply having to inform the other party of your intentions; you can still proceed with your appointment even if they are against you.
This raises the interesting legal question of what exactly is the role of the JSC in the process of appointing a chief justice? What has emerged is the following practice: the president will nominate a candidate, and the JSC will conduct an interview with the nominee, in public, after which it will communicate its views to the president.
In Mogoeng’s case, because of the controversy that his nomination had generated, some organisations and members of the JSC suggested that the JSC should be entitled to entertain other nominations. What if the JSC has views of its own and wishes to advance the candidature of another person? This point was raised both before and at the start of the JSC hearing on 3 September 2011. Dumisa Ntsebeza, the independent-minded advocate who acts as one of two spokespersons for the JSC (as well as being one of its members), was overheard saying that the DA was going to propose Moseneke for chief justice.
As one would have expected, the ANC members of the JSC – notably Radebe, Fatima Chohan and Ngoako Ramathlodi – closed ranks behind their president’s nominee and quickly called for a vote, which went against those opposition members of the JSC who were calling for a debate on whether the JSC could accept other nominations.
On September 3, Mogoeng began to read from a prepared written statement. After three-quarters of an hour, he was still going strong, his voice booming out as he responded item by item to the criticisms that had been levelled against him in the preceding weeks.
Moseneke brought him to a halt and asked him how long the statement was and how far he had got. Provoking a horrified gasp from the assembled audience, the answer came: page 9 out of 49.
‘Then give us the highlights,’ said Moseneke, sardonically.
Radebe interjected: ‘We must give him a full opportunity to express himself in response to the vicious mobilisation.’ Judge President Bernard Ngoepe of the Gauteng High Court also spoke up in favour of a full rendition: ‘There appears to have been an onslaught on you through the media. You have kept a dignified silence, knowing that the day would come when you would speak fully.’
Ngoepe was at that point one of the most senior members of the JSC, sitting just two seats away from Moseneke at the top of the horseshoe arrangement that the JSC favours. He went on: ‘I took the trouble to brush my teeth this morning and I am not going to mention some of the contemptuous and offensive remarks that have been made against you.’
But Moseneke had had enough. The statement could be handed in, but it was not to be read out.
The ANC members then served up some gentle patsy questions. The first was about access to justice, Mogoeng’s favourite subject and one upon which he can wax lyrical but without saying anything that a reasonably well-informed and intelligent observer of the creaking lower court system might say.
Then, from Radebe, with reference to the role as head of the Constitutional Court: ‘Can you carry your colleagues with you?’
‘Absolutely,’ the candidate replied.
‘But how can you assess that?’ came the rejoinder from the insider, Moseneke.
Things were heating up. Mogoeng spoke at length about the confidence that Chief Justice Ngcobo had shown in him in asking him to organise a conference on access to justice in July 2011.
‘It’s one thing to run a conference, another to be chief justice,’ observed Moseneke, aridly.
There was no answer to that question, though Mogoeng hit back a few minutes later when he suggested, in an answer to a similar question about holding the confidence of his colleagues, that ‘any of the Constitutional Court judges would have some reasonable disappointment, to varying degrees, but I don’t believe they would be so disappointed that they would prevent the court from operating’.
This was throwing the gauntlet back at Moseneke. And by most accounts, the glove remains firmly on the ground. Moseneke was on sabbatical leave for six months of Mogoeng’s first year in office, but has since returned and leads the progressive faction of the court that still holds the majority – at least for the time being.
The question of how Moseneke handles himself in the court remains a very live issue. Few would have judged him harshly had he resigned; equally, few would hope that he would do so.
Most progressive-minded constitutionalists hope earnestly that he will continue to stay on, however awkward for him and for Mogoeng. Many of the most recently retired members of the court have expressed this wish, in the hopes that the good practices of collegiality, intellectual rigour and consensual problem-solving built up over the first fifteen years of the court’s life will continue.
But the news from behind the scenes is not promising. Instead, the Constitutional Court is now largely divided – the chief justice separated from the former philosophical hub of the court, but now joined by the relatively conservative justices Jafta and Zondo. Khampepe keeps to herself, a moderate in the middle by all accounts. The ‘left’ of the court – Nkabinde, Froneman, Thembile Skweyiya and Johann van der Westhuizen – have rallied around Moseneke and Justice Edwin Cameron, the self-appointed defender of progressive values on the court and an arch-ally of Moseneke.
Justice Zak Yacoob retired in March 2013 and has been replaced by yet another man, the well-regarded senior counsel Mbuyiseli Madlanga. A fine lawyer and jurist, and a progressive, Yacoob was very mindful of the democratic legitimacy of the government and careful when overturning its decisions. While the balance of the court is still decidedly in favour of the progressive world view espoused during the first fifteen years, it could rapidly tip the other way.
Justice Skweyiya will be the next to go, in 2014, followed by Moseneke and Van der Westhuizen in 2016. Justice Nkabinde will serve until 2018.
Moseneke and Cameron are jurists of the highest order; they provide leadership to the younger, less experienced members of the progressive wing of the court: Nkabinde, Van der Westhuizen and Froneman. By 2016 Moseneke will be gone, Cameron in 2021 – replaced by whom, one wonders.
Thus, the battle for control of the Constitutional Court continues, requiring the full attention of the media and progressive civil-society organisations. As the gatekeeper to the bench, the JSC also demands our full attention.
In September 2011, the ANC closed ranks behind its president’s chosen man. Nothing less would have been expected of Ramathlodi, a conservative nationalist par excellence. He would take great pleasure in excising the progressive intellectual horsepower of the court. But Radebe and Chohan will have to reflect in later years over their role in Mogoeng’s appointment. Just before lunch on 3 September 2011, Moseneke put the point succinctly in adjourning the hearing: ‘The CJ is an intellectual leader, she or he is the flag-bearer, and to provide leadership, must have a deep intellect … after lunch I’d be grateful if you could provide some answers that help us assess that.’
It was said without hope or expectation. As I stood and filed out, a leading member of a black lawyers’ association turned to me and said: ‘The real chief justice has just spoken.’
How, then, did this come to pass? The ANC must take the most responsibility. They do not necessarily fully control the JSC as some have argued, but they certainly have a major say in it.
The ANC, on current numbers, falls just short of a majority on the JSC, if you add their members in the National Assembly and the National Council of Provinces (NCOP) to the minister of justice (a total of eight). But, if you add the presidential nominees, who one can safely assume will be well disposed towards the ANC, then you get to twelve (out of twenty-three), which is a majority when the JSC is deciding on a position for the Constitutional Court or the SCA, but either just short or just enough of a majority for high court appointments, depending on the party alignment of the premier of the particular province where the high court is situated.
Thus, more often than not, the ANC will enjoy a majority on the JSC. And why should it be otherwise? The Constitution-makers sought to strike a balance with the JSC. The Constitution does not give complete power to the politicians in the judicial appointments process, but nor does it remove their voice.
Figure 11.1: JSC composition
Chief Justice 1 – Mogoeng Mogoeng
President of SCA 1 – Lex Mpati
Judge President 1 – Bernard Ngoepe
Minister of Justice 1 – Jeff Radebe
The Bar 2 – Mbuyiseli Madlanga SC, Izak Smuts SC
Side Bar 2 – CP Fourie, Krish Govender (state attorney)
Legal Academy 1 – Engela Schlemmer
MPs 6 – Fatima Chohan (ANC); Ngoako Ramathlodi (ANC); Jonas Sibanyoni (ANC); Koos van der Merwe (IFP); Hendrik Schmidt (DA); Nick Koornhof (COPE)
Members of NCOP 4 – Tjheta Mofokeng, Johannes Mahlangu, Bertha Mabe, Grace Boroto (all ANC)
Presidential Nominees 4 – Dumisa Ntsebeza SC, Ishmael Semenya SC, Vas Soni SC, Andiswa Ndoni
Judge President & Premier of particular province when relevant 2 – varies
The constitutional inference to be drawn is that the people should have a say in the appointment of judges; not directly, but indirectly through their elected representatives. Concurrently, the legal profession, which has a large stake in the judiciary for obvious reasons, has a significant representation on the JSC.
In recent years, some of the main players in JSC hearings have been advocates Ntsebeza and Semenya, and commissioners Ramathlodi and Chohan.
Ntsebeza is probably the most vocal member of the commission in consistently raising transformation issues. Ramathlodi has increasingly put candidates on the spot with questions of judicial deference and the separation of powers. Chohan is not far behind and indeed is sometimes the more vocal of the two in asserting the need for the courts to steer clear of policy-making areas. Semenya is wont to raise both issues, often through the lens of governance and politics of the legal profession. Until his term on the JSC expired at the end of 2012, Krish Govender, representing the attorneys’ profession, also used to highlight the challenges government faces in a developmental state, but showed a greater willingness than most to acknowledge the need for judges to push at boundaries in order to achieve the society envisaged by the Constitution. His distinctive approach will be missed.
Radebe is quieter than some of his colleagues, but when he speaks he is a forceful presence. This was evident in his defence of Mogoeng and in his April 2012 grilling of South Gauteng deputy judge president Phineas Mojapelo, about an article in which Mojapelo was perceived to be critical of the consultation process followed by the JSC in the build-up to the appointment of Ngcobo as chief justice (the article had been written prior to Mogoeng’s appointment).
Ngcobo, in chairing the JSC, would take some time at the outset of an interview not just to establish the biographical details of a candidate, but also to canvass issues such as their jurisprudential outlook and philosophy of adjudication. Mogoeng, thus far, has been briefer, tending to focus more on the candidates’ backgrounds before opening the floor to other commissioners, though he will often ask questions later in the interviews. Case management is a favourite theme of his, and he has increasingly begun to canvass transformation issues, too.
Of the opposition MPs, the most active is the IFP’s venerable Koos van der Merwe, the longest-serving member of the current JSC. He can be relied upon to ask questions about languages used in the courts, whether candidates have written academic articles, and delays in writing judgments.
Appropriate to their designations, the Bar council representatives, advocates Madlanga and Smuts, tend to ask questions more closely related to specific judgments candidates have written, and candidates’ theories of adjudication and judicial philosophy, as did the late Professor Schlemmer.
Viewed as a whole, the JSC’s performance is a hard one to analyse. Doubtless there have been candidates who should have been appointed who have not, but accusations that it wilfully fails to appoint suitably qualified white male candidates are wide of the mark. What is apparent is that the JSC is representative of a diverse range of interests, which can result in interviews straying far from the terrain that would traditionally be considered core judicial functions.
Under Mogoeng’s chairmanship, interviews initially seemed to become more focused – indeed, in April 2012 many of the interviews seemed to swing too far the other way, with several perfunctory interviews lasting only a few minutes.
Even allowing for the fact that some candidates had been interviewed before, this practice was concerning. But the biggest concern, and where the greatest need for future vigilance lies, is whether the increasingly forceful assertion of separation-of-powers issues will stymie the appointment of potentially excellent judges who may be perceived as too ‘radical’, in that they are seen as too likely to make decisions that infringe on the competencies of other branches of government.
In this regard, the JSC surpassed itself at its April 2013 hearings. In contrast to the gentle warmth of a delightful Cape autumn and the sparkling sunlit blue sea outside the Sea Point hotel where interviews were being held for high court and SCA vacancies, the JSC loped towards its darkest hour, with procedural impropriety so egregious and unfair that it took my breath away and left me shaking with anger.
The start of the hearings had been mired in rancour following the leaking of Advocate Izak Smuts’s memo to the JSC in which he essentially said to his colleagues: ‘If the JSC is no longer going to appoint white men, we better just be done with it and say so.’ This followed the overlooking of, among others, the enormously pompous and arrogant Jeremy Gauntlett, a fine lawyer but one who many believe lacks the temperament necessary for the bench.
Smuts was factually wrong because, in fact, the JSC does often appoint white men (by my count, twenty-two were appointed to the superior courts between 2010 and 2012 inclusive). He was also tactically wrong, because he diverted attention away from the bigger question about what sort of people were being appointed from the perspective of ideology and jurisprudential philosophy.
Rather than a preoccupation with race – with its bleak binary logic that white male candidates are the best and that anyone else is appointed simply because the JSC ‘must take into consideration the need for the bench to broadly reflect the racial and gender composition of South Africa’ (section 174(2)) – the JSC should be focusing on who will deliver a transformative approach to dispensing justice and give full effect to the values and principles of the Constitution.
Clearly, and rightly, the JSC’s job is to drive the transformation of the bench, and in this respect it has made reasonable progress on the race front, but not on the gender front.
And I do not mean to be disrespectful to the JSC. On the contrary, it is an institution that is a vital cog in our constitutional wheel. And it has a very difficult assignment because, in their wisdom, the Constitution-makers enjoined the JSC to appoint people who are ‘appropriately qualified’ and ‘fit and proper’ (section 174(1)), while at the same time taking into consideration the country’s demography.
The relationship between the two provisions is far from clear. And the JSC has clearly not yet figured it out, because it spends so much time arguing about it.
Indeed, having spent the whole of its first day, Monday April 8, in a closed and apparently dissonant session debating Smuts’s memo and related matters, the JSC played out its internal divisions and anguish in the first three candidate interviews for two SCA vacancies, which took place on the Tuesday morning.
Clive Plasket, an attorney who conducted a fearless human rights and labour law practice with the Legal Resources Centre in the 1980s, but who is now an equally fearless member of the Eastern Cape High Court, was the first up.
For two hours he faced a barrage of angry questions about the transformation issue and the related spring 2012 SCA ruling that the JSC’s decision not to appoint a ‘fit and proper’ and ‘appropriately qualified’ white male candidate to fill a vacancy on the Western Cape High Court bench in 2011 was unlawful for the JSC’s failure to give reasons as to why it left the vacancy empty.
Despite the unrelenting pressure, which was so uncomfortable that Plasket’s wife was twice compelled to leave the room because she could take it no longer, the bluff-spoken administrative lawyer from Grahamstown maintained his composure and stuck to his line: that the SCA was right in law; that the JSC is a public body subject to the principle of legality like all other public bodies; that, when invited to accept that section 174(2) was peremptory, it meant what it said: namely, that the JSC must take into consideration the racial and gender demography of the country.
Only at the very end, when asked by Mogoeng whether he had anything else he would like to say, did Plasket finally – and understandably, one might think – crack and show his frustration: ‘I was hoping,’ he said, ‘to have been asked about my competence and my long track record as a judge.’
There had been not one question of substance about his human rights record, his judgments or his judicial philosophy. Nada.
After a relatively short and bland interview with Justice Halima Saldulker, who was later recommended for appointment to one of the vacancies, in swans Justice Nigel Willis of the South Gauteng High Court.
Mogoeng begins by asking him about his recently acquired MPhil and PhD qualifications, and it emerges that Willis’s extracurricular studies span the Pentecostal Church and the relationship between religion and science.
‘Are you a sangoma, Judge?’ Radebe asks. There is hilarity all round.
‘Well, I am halfway to being one … a sort of preacher,’ replies Willis.
Mogoeng, whose own religious zeal is well known and who is a lay preacher himself, appears mighty delighted.
IFP MP Van der Merwe is especially interested and expresses the hope that the good judge will send him copies of his theses. There is some equally light-hearted banter about Willis’s tendency to get annoyed with the Constitutional Court – the General Council of the Bar of South Africa has sent a submission noting that in one case the judge lashed the Constitutional Court for having the temerity to overturn one of his judgments.
‘I would have preferred to see such an argument in an academic piece or a newspaper article, but not in a judgment,’ Mpati points out.
Oh, I know, naughty me, replies Willis. I suppose I shouldn’t have got so annoyed, but, well, you know, those Constitutional Court judges – ‘before your time, Chief Justice’ – can be mighty infuriating, can’t they?
There is much nodding among some members of the JSC for whom, indeed, the Constitutional Court can be mighty infuriating, what with its irritating tendency to overturn government policy and legislation. Rather like Plasket tends to do now, with the persistently incompetent and unlawful Eastern Cape provincial government.
Never mind. Willis is avuncular and charming and eccentric, and obviously a good egg. It’s as if a rather errant but delightfully charming relative has popped in for a pre-lunch aperitif. And, indeed, lunch is approaching. So pass the sherry, old chap, and let’s ‘keep the show on the road’, as Chohan puts it in her last question to Willis.
If Alice had walked in then through a looking glass and the Mad Hatter had asked her to solve the riddle ‘Why is a raven like a writing desk?’, no one who was watching would have been surprised at this point. (Alice, as you will recall, soon gives up and the Hatter admits: ‘I haven’t the slightest idea.’)
Willis did not get one single question about transformation; his interview lasted barely forty-five minutes. Instead, a recent letter he wrote to the Mail & Guardian in support of the National Development Plan’s economics was read back to him approvingly by Mogoeng.
The Constitution should not be ‘interpreted as if judicial fiat can succeed where every socialist revolution has failed’, Willis had written.
A human rights lawyer who works on cases of eviction and the right to housing told me after the hearing that ‘Willis is a disastrous judge who sees the Constitution through the lens of private property. His judgments have caused massive harm to poor people and their eviction rights.’
By the end of the next day, by which time Willis’s appointment had been made public, copies of some of his more bizarre judgments had been circulated, including one on a BEE deal in which he observed that the cast of actors ‘included the usual suspects’ as well as various albinos with a pink hue – by which he meant ‘white people’ – an example, presumably, of a misplaced attempt at judicial humour.
A high court judge who knows both Willis and Plasket explained it this way: ‘Plasket is one of Arthur’s boys’ – a reference to Arthur Chaskalson, the first president of the Constitutional Court and the founding director of the Legal Resources Centre – ‘and the ANC’s backlash against the Constitution is directed at Arthur and his boys, who they blame for forcing them to have the Constitution in the first place.’
Of course, the idea that the ANC had the Bill of Rights forced upon it is errant revisionist nonsense. As Justice Albie Sachs reminded his audience at the launch of the Kader Asmal Human Rights Awards at the University of the Western Cape in May 2013, it was Oliver Tambo who insisted that the ANC convert its commitment to the Freedom Charter into an operational bill of rights.
These days, however, the ANC wants obedient judges who ‘know the limits of judicial power’.
It’s not being a white man that’s a disqualifier for judicial office, it’s being a white man with a commitment to the progressive values of the Constitution and the protection of human rights that will destroy your prospects.
So that week in April 2013 was not only the JSC’s lowest moment so far, it was also the week in which it appointed a judge who is, to my mind, a libertarian, neo-Thatcherite maverick, instead of a progressive lawyer with a proud human rights record. It was the week in which the ANC and its members of the JSC, including its unprincipled minister of justice, betrayed the legacy of Tambo, something it may care to think on if Justice Willis starts handing down eccentric judgments from Bloemfontein, because that is one appointment that might well come back to bite them on the butt.
The last few years have been a rocky ride for the JSC and, unless it can fix itself and find consensus about its role and about the criteria to be applied when interviewing candidates for judicial office, it will lose even more credibility, to the point where its processes will lack legitimacy, thereby dangerously diminishing the rule of law and the strength of the judiciary.
In addition to the controversies that inevitably swirl around the appointments process, it has also been placed at centre stage in the controversies surrounding Western Cape judge president John Hlophe. The JSC is charged with dealing with allegations of misconduct against judges, and in the most serious cases may recommend a judge’s impeachment to Parliament. The JSC’s attempt to dismiss complaints against Hlophe, relating to his alleged attempt to influence members of the Constitutional Court in deciding a case against President Zuma, has been overturned by the SCA, and the ongoing saga is likely to prove a damaging one for the JSC, the judiciary and the legal system in general.
Indeed, the JSC’s record when challenged in court has been abysmal. Whether on issues relating to the appointments process or the Hlophe saga, the JSC has consistently been overturned by the courts when its decisions have been challenged. In litigation brought by the Western Cape Bar council challenging the JSC’s failure to fill certain vacancies on the Western Cape High Court, the JSC was not even able to explain its own voting procedures consistently.
At lunch, on the first day of the JSC Mogoeng hearing, a last-minute submission from COSATU, presumably prepared on its behalf by Neil Coleman, its erstwhile veteran parliamentary lobbyist, was passed around. It was a devastating critique of Mogoeng’s appointment. That it came so late and that it held so little sway is telling: the formal left – the SACP and COSATU – deploy little of their political capital on institutional governance and on the rule of law, though they are quick to carp about state corruption and infringements of people’s human dignity.
Their analytical faculties are unable, it seems, to join the dots between the pursuit of a substantively equal society and the structural inequities of the economy on the one hand, and the importance of having a progressive-minded judiciary on the other.
That, presumably, is why they failed to intercede to help save a man whose mission was to provide the country with the strong, independent legal system that it needs if it is to resist the populist, right-wing assault that is now being occasioned upon it.
As the clock ticked towards the end of Ngcobo’s term in mid-2011, Parliament could have moved to pass a law to extend the term of all Constitutional Court judges. At one point, it looked like it was going to consider doing so. But it paused, first to wait for the judgment in the Ngcobo case, and then to decide what to do in the light of its consequences.
As already noted, Ngcobo accepted the president’s request on 2 June. The president then acted fast, announcing his decision to extend Ngcobo’s term by three years on 3 June. The application to challenge the constitutionality of the decision by the Centre for Applied Legal Studies (CALS) and CASAC was launched on 20 June, and the Constitutional Court heard the case on 18 July and handed down judgment on 29 July, conscious of the fact that the 14 August deadline was looming.
The court decided that Parliament had no constitutional authority to delegate power to the president to extend the term of the chief justice since the latter is also a member of the Constitutional Court and the term of the Constitutional Court judges is set by the Constitution: section 176(1) sets the term as twelve years non-renewable or until he or she is seventy, whichever comes first.
However, by virtue of the 2001 amendment referred to earlier in this chapter, section 176 also says that an Act of Parliament may extend the term of a Constitutional Court judge.
The court in the Ngcobo case then went on to say that when the Constitution refers to ‘a’ Constitutional Court judge, it is not permitting differentiation in terms of office. Although the court recognised that the chief justice and his or her deputy are appointed by a different process to ‘ordinary’ Constitutional Court judges, and although it acknowledged that they have significant special responsibilities beyond their membership of the court, it concluded that ‘once appointed, however, the Chief Justice and Deputy Chief Justice take their place alongside nine other judges in constituting membership of this Court’.
My unit’s submission to the court, accompanying its rather belated application to join the proceedings as amicus curiae, contended (‘novelly’, the court observed) that Parliament does not have the power to extend the terms of office of all Constitutional Court judges generally, or those of all present and future chief justices. It has, we argued, only the power to extend the term of a specific judge or judges.
In other words, we were pushing for a ‘Ngcobo law’ that would have extended his term by name – a law to specifically extend the term of Chief Justice Ngcobo himself, and no other – with the view that the Constitution anticipated a situation where, such as then, an exceptional need arose. The exceptional circumstance we identified was the need to maintain continuity in the epic institutional reform project that Ngcobo had embarked upon.
Few agreed with this approach, and the court was not persuaded either. I am far from sure we were right; I think the court was. But it need not have closed the door entirely. Now, it was clear to Parliament that it could not pass a ‘Ngcobo law’ extending the term of this one member of the court, even though he was the chief justice, but it could, according to the court, pass a law to extend the terms of all Constitutional Court judges.
This is where the ANC lost its bottle or, rather, its support for Ngcobo evaporated into thin air. Until the judgment was handed down on Friday 29 July, the Justice and Constitutional Affairs Portfolio Committee was willing and ready to process a law that would extend Ngcobo’s term and had even made provisional arrangements for the National Assembly to be recalled on Tuesday 9 August to pass the law, since Parliament was in its winter recess.
Although he would likely contest this version of events, I believe John Jeffery, the veteran member of the justice committee and a long-time ally of Jacob Zuma, decided in consultation with justice minister Jeff Radebe, his political principal, that they would not proceed to ‘save’ Ngcobo.
Why not? Procedurally, it amounted to the same thing: an Act of Parliament, albeit one that would extend the term of not just one member of the court – which the court had now declared was constitutionally impermissible – but of all eleven. The president had wanted to extend Ngcobo’s term from twelve years to fifteen, so why not all of them?
Only Jeffery and Radebe know the answer to this question. My conjecture, which, as I say, they will no doubt contest, is that they did not want to extend the terms of justices like Moseneke and Cameron, whose end of terms they were – and are – looking forward to.
Ngcobo had convinced them of the need to strengthen the judicial arm of government or, at least, he had managed to persuade them. They were willing to go along with it. It was a long game, in any case. The bigger political project, however, was to diminish the power of the Constitutional Court and so, now that the chips were down and the choice had to be made, the ANC chose the latter over the former.
Ngcobo, it turned out, was expendable.
In Cape Town four weeks later, thanks to a transparent process that we should be glad of, we all got to see what we were getting as Ngcobo’s replacement. I don’t know what Moseneke had for lunch, or what he drank, but the afternoon was his, by a mile.
Drawing on his considerable forensic expertise, he applied the scalpel. Professor Schlemmer, representing the legal academy, had asked Mogoeng about his dissent in the Dey case. In the two years since his appointment to the Constitutional Court, Mogoeng had written only five judgments (including a pugnacious dissent in the Citizen v McBride case). In the Dey case, which concerned the constitutionality of a defamation claim where mischievous schoolchildren had photoshopped the head of their principal, Mr Dey, onto some rather lurid if obviously fake pictures that presented him as gay, Mogoeng had taken the rather bizarre option of offering a dissent on a point without giving reasons.
The point he was dissenting was the judgment written by justices Froneman and Cameron that on one reading can be summarised simply, if rather crudely, as saying it cannot be defamatory to depict someone as gay, in the light of constitutional norms and values that guard against discrimination based on sexual orientation. Thus, they found ‘it cannot be actionable simply to call or to depict someone as gay even if the subject chooses not to be gay and dislikes being gay’.
In response to Schlemmer’s question, Mogoeng replied: ‘On reflection, I should have provided some reasons … I did not have time to reflect on the point.’
Moseneke pressed him: ‘If it is not actionable to refer to someone as gay, you dissented from this, what is your jurisprudential take?’ He was asking him, clearly enough, what his view as a jurist was on the proposition of law.
Mogoeng floundered: ‘I did not have enough time to reflect properly. I don’t have an answer to your question.’
Moseneke, calmly and slowly, to complete silence from the huge auditorium, retaliated: ‘If you listen to the question, you might be able to answer.’ Mogoeng was trying to jump back in to reply immediately and Moseneke was trying to get him to pause and actually understand what was being asked.
Mogoeng snapped back, bitterly: ‘You don’t have to be sarcastic, sir.’
This was class warfare; a cultural clash between the epitome of the modern, progressive Constitution – Moseneke – and the reactionary, socially conservative world view of another place, Mogoeng’s – and Zuma’s for that matter.
There was a palpable gasp in the auditorium at the friction of the exchange, followed by a long pause. Silence. As if everyone present was holding his or her breath.
Moseneke, with a tiny sigh: ‘I’ll try again. What is your answer?’
Mogeong: ‘I believe it now.’ From which we are to infer that he could not accept it then, because of his religious beliefs, but he is forced to accept it now, in public, because needs must.
Moseneke: ‘Why did you dissent?’
The best questions in cross-examination are the simplest.
Moseneke: ‘You should not have dissented.’
Mogoeng: ‘Yes, I should not have dissented.’
Shortly afterwards, Koos van der Merwe asked Mogoeng if he had a short temper and suggested that in all his long years on the JSC he had never encountered an applicant with such an arrogant attitude, that it ‘points to your suitability negatively’.
Mogoeng was forced to apologise: ‘I did a wrong to the DCJ [deputy chief justice] and I apologise.’
Game, set and match to the DCJ.
Hence the sparkle in Moseneke’s eye when we encountered each other in the gents’. And hence my reply to his question.
This particular battle had gone to the old new establishment, but the war will be prolonged and the new new establishment could yet prevail. After all, Mogoeng was appointed chief justice, not Moseneke.
Though, as an epilogue, it ought to be stated that Mogoeng was neither the ANC’s nor the president’s first choice. After they abandoned Ngcobo, they tried at least two, maybe three, others. Mpati and Khampepe were asked, but they declined. Mpati likes his life in the Free State, not far from his Eastern Cape farm, and is close to retirement. Unlike Mogoeng, Khampepe modestly thought that she was too new on the Constitutional Court to lead it.
The government initially requested research on the judicial records of five people: Mpati, Khampepe, Ngoepe, Khayelihle Mthiyane (SCA judge) and Mlambo. And then, a day or two later, of Mogoeng.
It wasn’t a long research assignment, as he has written few significant judgments and no academic articles; as he told the JSC, ‘I don’t have a passion for writing articles’.
I told you so, I thought to myself when we got the request to do the report on Mogoeng. I knew that it meant that my worst-case scenario premonition was looming large.
And so it came to pass: a president who doesn’t read appoints a chief justice who doesn’t write. It makes perfect sense.
Pictures: All photographs by David Harrison
Main photograph: Constitutional Court judge Mogoeng Mogoeng during his interview for the chief justice position – to which he was appointed by president Jacob Zuma – in Cape Town in September 2011
Take Two: Deputy chief justice Dikgang Moseneke (centre) arrives at the Cape Town International Convention Centre, flanked by the Supreme Court of Appeal judge president Lex Mpati (left) and Gauteng judge president Bernard Ngoepe (right) for the two-day interview of Mogoeng Mogoeng
Trip Tick: Deputy chief justice Dikgang Moseneke, who chaired the Judicial Service Commission sitting to interview Mogoeng Mogoeng, applies the scalpel to his colleague during a revealing interview
Fore!: The cover of The Zuma Years – South Africa’s Changing Face of Power - courtesy of Zebra Press
Hi Five – Eight Ball: Chief Justice Mogoeng Mogoeng had to face a barrage of questions about his controversial views on rape and gender-based violence during the interview that preceded his installation as the country’s top judge
Nein: The Judicial Service Commission has become a space for political contestation as the ruling ANC expresses increasing concerns about judgments against government and the separation of powers