Constitutional Hill

Justice Mogoeng – an unwise decision

The announcement that President Jacob Zuma has “nominated” justice Mogoeng Mogoeng to take up the position of Chief Justice of South Africa can at best be described as surprising and disappointing. It is as if President Zuma, acting like a spoilt child who could not get his way with the extension of the term of office of the outgoing Chief Justice because he relied on a clearly unconstitutional provision to do so, is now trying to get back at critics by indicating a wish to appoint one of the less suitable candidates to that post.

The “nomination”, if confirmed, will mean that for the next ten years the South African judiciary will be led by a deeply conservative jurist. This could potentially have consequences for the implementation of the transformative vision embodied in the South African Constitution.

I would be surprised if progressive leaders inside the ANC, COSATU and the SACP have been consulted on this decision or, if they have, they supported the decision. There are two main reasons why this decision, while constitutionally permissible, will be viewed by many progressive and pro-transformation champions in our society as one of the most ill-advised decisions our President has made. On the other hand, the decision should be welcomed by many conservatives in both the white and black community who are uncomfortable with the progressive, pro-poor and pro-diversity trajectory of the Constitutional Court.

In any case, the decision says much about the values espoused by our President.

First, it cannot be contested that the nominee is the most conservative judge currently serving on the Constitutional Court. In the case of The Citizen v McBride in a judgment handed down earlier this year by the Constitutional Court, justice Mogoeng dissented from the majority and provided reasons for this dissent which suggest that he has a curious understanding of the way in which freedom of expression operates in a constitutional democracy. In the context of a discussion of the effects of the granting of amnesty by the Truth and Reconciliation Commission (TRC) to those who had committed gross violations of human rights during the apartheid years, justice Mogoeng stated that it was impermissible to use truthful facts to insult, demonise and run down the dignity of self-confessed human rights violators.

Invoking “traditional values and moral standards” — something that the justices on the ultra-conservative wing of the US Supreme Court might do — the judgment seemed to suggest that it was inappropriate in a constitutional democracy to engage in debate that would affront the dignity of any individual. Even in cases where the impugned comments are based on incontrovertible facts (“X is a murderer hence X is a bad person”), would seemingly offend the honourable judge.

As I wrote at the time, it seems to me this view is at odds with the liberal notion of freedom of expression which our courts have found is at the heart of a flourishing democracy. It seems to relegate freedom of expression to secondary status in our constitutional dispensation and elevates the human dignity of others — even the human dignity of gross human rights abusers who dehumanised, tortured and murdered opponents of apartheid — above the rights of the victims of those human rights abusers.

As a gay man and a vocal champion of respect for difference and diversity, I was also deeply disturbed by the decision of the nominee to distance himself from passages in a judgment in the case of Le Roux and Others v Dey (co-authored by justice Froneman and Cameron), which found that our Constitution affirms the principle that there is nothing wrong with being gay or lesbian and hence that one cannot be defamed if one is called a homosexual.

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the refusal of the nominee to endorse the views of the majority on this point suggests that he does not agree with the long line of precedent on sexual orientation discrimination.

Which brings me to the second reason why I believe this nomination is unwise. The problem is that Justice Mogoeng did not provide us with any reasons for his disagreement with the majority judgment in the Dey case. Justice Mogoeng thus managed to avoid scrutiny of his views by the legal community and by the public on this issue. He thus avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy. The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, were therefore not served by this silence. Justice Mogoeng therefore unwisely failed to embody the culture of justification demanded by our Constitution, placing a question mark over his judicial temperament and his wisdom.

If this lapse was an isolated occurrence, one might well have argued that it was of little significance. However, during the time when Justice Mogoeng served as Judge President he presided over the case of S v Dube, in which another such lapse occurred. In that case the nominee’s wife was the prosecutor in the case but the judge failed to inform the accused of this fact. The Supreme Court of Appeal (SCA) found that the failure of the then Judge President to recuse himself when his wife presented argument for the State in the court below constituted an irregularity which vitiated the appeal proceedings. The SCA therefore set aside the order of the High Court and referred the case back for re-hearing before a differently constituted bench.

The SCA pointed out that the enquiry to determine whether a judge should recuse him or herself “involves a value judgement of the court applying prevailing morality and common sense”. The SCA stated 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 open-mindedly, 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.

It is worrying that the SCA has made a finding which suggests that the nominee for the highest judicial office in our country lacks the common sense and a sense of the prevailing morality in our society required from a competent and wise judge.

Of course, the President has the right to appoint any fit and proper person who is suitably qualified as Chief Justice. All that is required is for the President to consult with the JSC and the leaders of opposition parties before making and appointment. There is no requirement that the President should heed the concerns of those consulted. It must be made clear that I am not suggesting that the nominee is not a fit and proper person that is suitably qualified for the job.

But in a constitutional democracy the decisions of our President are subject to scrutiny and it is both appropriate and sometimes necessary to criticise the wisdom of decisions made by our President. In my humble opinion this is a case where such criticism — based on the kind of reasoned analysis provided above — is fitting and necessary.

It would be interesting to see if progressive voices inside the ANC and in the ANC alliance partners will turn a blind eye to this deeply conservative decision of the President. Will they support this nomination or will they be principled enough to criticise this decision? Will they point out that their progressive agenda will not be served by this decision and that it has the potential to undermine the transformative power of the Constitution?

Only time will tell.

  • MO

    I agree with your analysis, Pierre. This is a most disappointing development. In fact, it is disturbing as it is indicative to me of the disrespect with which the President views the Constitution, the fundamental rights protected therein, as well as its underlying values.

  • Proudly Perth

    Listen, it’s not my business where you put your dick.

    But don’t call yourself a man.

    Thank you.

    PS: Why so unhappy about the decision. The Judge is black, radical and previously disadvantaged. A perfect candidate in your book.

  • Donald Paul

    A welcome commentary. I don’t tink, however, MO, that it shows the President’s disrespect for the Constitution. Rather it shows his complete ignorance as to the role our Constitution has in our country. It seems, to Zuma, just something to skirt around.

  • MO

    To my mind, the Chief Justice should be the lead champion of the Constitution and its underlying values, including its transformative vision. He should be expected to take proactive steps to foster and maintain a culture of respect for the Constitution and the judiciary’s prescribed role in terms thereof.

    By nominating Mogoeng Mogoeng, who I think is not up to this challenge, the President shows disrespect for the Constitution. But yes, perhaps my use of ‘disrespect’ is somewhat euphemistic. Would ‘disregard’ or even ‘wilful ignorance’ be more appropriate?

  • Faan

    I heard that the decision has more to do with his allegiance with the ANC than anything else. Judge Moseneke was apparently deliberately overlooked as he is has no such allegiance and because he has made decisions adverse to the ANC’s interests. As far as I am cocnerned, the nomination is purely politically motivated.

  • Chris (Not the right wing guy)

    I’m surprised, but also relieved. It could have been John Hlope.

    The indiscretions PdV mentions are all true, but I do believe Mogoeng Mogoeng is a hard working judge. I truely hope for the sake of the country and the legal system he proves us wrong.

  • malome tom

    i wouldn’t be as simplistic as to catergorise the decision as some form of reward for mogoeng’s allegiance to the anc. (in response to the above comment). i understand your misgivings pierre but i welcome this tilt towards conservatism, my own (very) liberal biases notwithstanding. i think its important to have a contestation of ideologies on the bench and hopefully mogoeng as cj will introduce such. not everybody in sa believes in homosexuality or abortions or gender and other critical theory rights etc etc. so i think its NB that strand of thought be ‘represented’ at the highest levels of our jurisprudence, even if it offends yours or my sensibilities.

  • John Roberts

    Pierre wants to have his cake and eat it. He bashes minority groups like whites but expects a minority such as gays to have super priveleges and for society to just move over and make way for them.
    I wonder if he supports white gays or just the black ones.

    Just as whites have sinned, so have gays sinned. That’s a double-whammy for Pierre.

  • Faan

    The nomination is unsurprising. The “best man for the job”- principle has never factored in the ANC’s decision making processes. Its all about political allegiances and chronyism for them…

  • Gwebecimele

    With time, many will realise that you can’t govern via courts since politics will eventually spill over to the courts.

    Personally, I understand Prez Zuma and I would have acted the same if not better(Hlophe) under the circumstances.

    If you reverse the roles, I doubt if DA or other critics could have missed the opportunity to maximise political milage on such a key appointment especially if your every second decision is bound to be dragged to courts including your own legitimacy.

  • Gwebecimele

    BTW I do not support the nomination.

  • sirjay jonson

    I’ll read your blog next but I have to say now… what a huge disappointment, not only homophobic but doesn’t give reason for judgement. Your next challenge Prof.

  • sirjay jonson

    And by ‘homophobic’, I’m saying he doesn’t stand for human rights.

  • Faan

    The ANC’s track record to follow due process speaks for itself. The debacle concerning the former CJ serves as the most recent example and the law reports are abundant with other examples. Good tax money is wastefully spent by national- and provincial spheres of government in court proceedings because of incompetent/inept/brainless administrators in its employ. Legal costs agains gov and parastatels amount to millions year in and year out and, eventually, our country’s administrayion will find itself in a hole so deep that the overthrow of democratic values will become the only answer for the rampaging masses of have-nots to survive into the future.

  • Maggs Naidu – maggsnaidu@hotmail.com

    ping!

  • Valkyrie

    i would love to know what you thought when Justice Sandile Ngcobo was appointed.

  • sirjay jonson

    “It must be made clear that I am not suggesting that the nominee is not a fit and proper person that is suitably qualified for the job.”

    Really? And why not Prof: You’ve already started giving your reasons indicating just that. If you feel he is not fit and proper, which is how I think you feel and believe, say it. The man is not fit and proper to ‘play’ in this position for any number of years. South Africa and true Democracy will suffer under this man, as will the continent (as in ramifications).

    I’m not just disappointed, I’m actually furious. But then, what can I do?

  • Cicero

    How stupid is this women ?

    Sheryl Cwele, the wife of South Africa’s intelligence minister, was fired Tuesday from her senior municipal job after being sentenced to 12 years in jail for drug trafficking.

    Hell she could have just arranged some kickbacks from tenders or blatantly stolen and she would still have had a job.

    Perhaps there were too many pigs at the trough and she had to resort to this to keep up with the ANC leaders.

  • sirjay jonson

    malome tom
    August 16, 2011 at 17:01 pm

    “…not everybody in sa believes in homosexuality or abortions or gender and other critical theory rights etc etc.

    Well Malome, that is precisely why we have a highly recognized human rights Constitution, a Bill of Rights, an independent judiciary… so that those who do not support human rights, equal rights, who are themselves so often the masses of the ignorant, uneducated and prejudiced, that they in their are not empowered to derail all these important rights necessary for a society to succeed.

    We can easily maintain our own views and prejudices within a family, although there, they also can destroy the family, but within a society we need a higher order, wise, able to insure the populace doesn’t destroy itself. High court judges in successful countries around the world are extremely careful who is appointed.

  • anton kleinschmidt

    I am not competent to comment on the suitability of this appointment, but this all resonates in an historical context

    PdV on 18 April 2008……..”Personal attacks on judges – as opposed to legal applications to have judges recused or robust criticism of their decisions and actions – are dangerous because it undermine respect for the judiciary on which our democracy depends. Down that road lies anarchy. It was wrong and dangerous when the ANC Youth League did it and it remains wrong now when the DA and its supporters do it”

    I am now trying to decide whether the following comments could be construed as a personal attack or are simply robust criticism of the judges decisions……”Deeply conservative” / “question mark over his judicial temperament and his wisdom” / “lacks the common sense and a sense of the prevailing morality in our society required from a competent and wise judge”.

  • Mikhail Dworkin Fassbinder

    @ PdV

    “[The nomination …. can at best be described as surprising and disappointing.”

    Yes, Pierre, what a surprise.

    I had expected Moseneke or Cameron JJ.

    Wow! Huge surprise!

  • Oliver Fuo

    An attempt by the executive to foster a conservative legal culture that romances the rule of law doctrine and legal restraint?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Valkyrie
    August 16, 2011 at 17:53 pm

    “i would love to know what you thought when Justice Sandile Ngcobo was appointed.”

    …Why has President Jacob Zuma decided to appoint Justice Sandile Ngcobo as Chief Justice? What does it say about the ANC and the President’s view on the independence of the judiciary and its role in our constitutional democracy? Justice Ngcobo will serve only 18 months as Chief Justice before President Zuma will again have the opportunity to appoint a Chief Justice – this time perhaps from the four new appointments to be made later this year. …

    Ngcobo will retire in 2011 and the President will then be able to appoint another Chief Justice perceived to be more pliant and more executive minded. Like the US President who would want to appoint a Supreme Court justice whose philosophy closely resembles his own without upsetting public opinion too much, Zuma has therefore decided to appoint a safe Chief Justice and this will allow him to appoint another Chief Justice in 2011 when his power may be more deeply entrenched and he will thus be less fettered by concerns about rocking the boat. …

    However, the real test will come when the President has to appoint four new judges on the Constitutional Court and when Ngcobo retires and he has to appoint a new Chief Justice. Only then will we have a better picture of what the long term strategy of Zuma and the ANC regarding our judiciary might be.

    So, I feel a bit like Chairman Mao who when asked what he thought the impact of the French revolution was, famously replied: “It is too early too tell.”

    http://constitutionallyspeaking.co.za/too-early-to-tell/

  • Ngcebo

    I also do not support the nominationg of Mogoeng, he is a very junior Judge in the CC.

    This was clearly a political decision.

    but the fact that the Zuma put him in, doesn’t mean he will not do his job well.

    look at the Public protector.

  • Maggs Naidu – maggsnaidu@hotmail.com

    MO
    August 16, 2011 at 16:40 pm

    Hey Prof MO,

    “By nominating Mogoeng Mogoeng, who I think is not up to this challenge, the President shows disrespect for the Constitution. But yes, perhaps my use of ‘disrespect’ is somewhat euphemistic. Would ‘disregard’ or even ‘wilful ignorance’ be more appropriate?”

    What does it say about Zuma’s regard (or lack of it) for the rest of the judges?

    The ANC has allowed the CC to be reduced in stature from among the finest in the world to a little more than another political instrument.

    I think it’s a damn disgrace!

  • John Roberts

    “…not everybody in sa believes in homosexuality or abortions or gender and other critical theory rights etc etc.”

    True. However, I believe everyone should have the right to to as they please with their bodies, beliefs etc.

    They don’t however have the right to shove it down our throats , pretend it’s normal and vilify those who don’t agree.

    Who the fuck cares if Pierre is a raving queen ? But hell, shut the fuck up about it Pierre and accept that not everyone can stomach what you do in private. If you want to be treated like everyone else then act like everyone else. Otherwise shuddup and accept what life has dealt you with all the ups and downs. You want some special dispensation just because you’re gay. Please man.

  • Loudly South African

    President 783 once again showed his personal agenda over-rules the interests of the country. Virtually every knowledgeable commentator has said that Dikgang Moseneke is the best person for the job, including his independence from the ANC – which, no doubt is the reason he was overlooked.

    Once again, the ANC is aping the apartheid government. Just as Israel Maisels, considered to be the best legal mind of his day was punished (like Moseneke) for leading Nelson Mandela’s defence, Moseneke has been snubbed. In actual fact, an honour.

    Whatever the Constitution may say, Catch-22 states that, by accepting this position and being part of the ANC “strategic deployment” strategy, Mogoeng Mogoeng proves that he is disqualified for the appointment.

  • abidam

    Is Zuma hoping by appointing a “weak” candidate he will have him in his pocket (thankful and loyal); only time will tell.

  • Mikhail Dworkin Fassbinder

    With respect, I see some of the criticism of the CJ nomination as animated by RACISM. Where were the white liberals when Schreiner JA was passed over in favour of the less experienced Boschoff JA in 1961? Hey?

  • John Roberts

    “Where were the white liberals when Schreiner JA was passed over in favour of the less experienced Boschoff JA in 1961? Hey? ”

    Still a twinkle in my Daddy’s eye, old-timer.

  • Maggs Naidu – maggsnaidu@hotmail.com

    @PdV,

    “Will they support this nomination or will they be principled enough to criticise this decision? Will they point out that their progressive agenda will not be served by this decision and that it has the potential to undermine the transformative power of the Constitution?”

    LOL!

    If I can say this gently – not a chance in hell.

  • Maggs Naidu – maggsnaidu@hotmail.com

    John Roberts
    August 16, 2011 at 21:47 pm

    Hey JR,

    I see you’ve been having a whale of a time with “my fellow White South Africans” – like a pig in dung, eh!

  • ewald

    Oh my God!! JUSTICE MOGOENG IS AN ORDAINED PASTOR!! :( (www.thepresidency.gov.za) That explains the guy. How the hell can the Chief Justice be Moses reincarnated? What are we going to get handed down from heavens above..The Ten Commandments in disguise? Kraaist we ARE in trouble! :(

  • Mikhail Dworkin Fassbinder

    Like Pierre, I am staggered by the nomination of MM as CJ. Had been expecting someone smart, progressive, a long list of well crafted decisions, and of impeccable independence. Also firmly believed that pigmentation would not necessarily rule out a Cameron or even a Davis CJ!

  • kenneth

    keep on challenging the president and you will get what you want, let see who you will get if semelane leaves, or beki cele leaves ha!ha!

  • Maggs Naidu – maggsnaidu@hotmail.com

    kenneth
    August 17, 2011 at 6:58 am

    Hey Kenneth,

    “ha!ha!”

    So it seems.

    The laff is on those of us who supported Zuma’s ascension.

  • Pekkil

    Dear prof

    I will immediately bow to you insights into the proposed CJ. But i do have a question.

    Let’s assume all these possible candidates are a bit like most of us – flawed individuals, each with their own issues. I hear a lot of general admiration, all around, for Moseneke – but do you remember the Noseweek stuff on him, his money, his money-connections, the property and trust issues? So, i assume all these candidates have their issues. As i’m sure they’ve made questionable decisions in office, like this issue you highlight when the new candidate’s wife was involved.

    Truth of the matter is that our president seems a deeply conservative man, in charge of a relatively conservatice country with a progressive constitution. And that same constitution invites the president to decide who should lead the judiciary. And with the loony left running a little riot in South Africa just at the moment (literally in cape town, and figuratively when it comes to the folly of the NHI, the idiocy of seeking jobs whilst maintaining our brand of labour legislation, the protection of sadtu over our children’s interests), i’m not sure that that current candidate (a) doesn’t reflect our country’s instincts better than some of his more progressive colleagues and (b) doesn’t offer to provide a little counter-balance to the prevailing policy madness (of course, in my humble opinion) where we need it most.

    Mogoeng’s job, after all, is not to rewrite our constitution – it’s to lead a collective in applying it. That, surely, is what we expect from him? Do you believe he’ll weaken our constitution’s hold? Could he bring some balance to our loony spaces? And does he not, better than some of the others, reflect the kind of country, and people, we are? I wouldn’t know the man if i ran into him, but I’m wondering whether you believe he is the same kind of mistake ‘Simelane’ represents?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    August 17, 2011 at 6:04 am

    Hey Dworky,

    “or even a Davis CJ!”

    See what the guy who told us that Davis is racist has to say about the nominee CJ.

    The former principal of the University of SA, and now rector of the College of the Transfiguration, Barney Pityana, criticised Mr Zuma’s choice. “I have no hesitation in saying this is a really bad appointment in every respect.” Rev Pityana said Justice Mogoeng had “minimal” practice experience and was not generally regarded as an intelligent jurist

    http://www.businessday.co.za/articles/Content.aspx?id=150821

  • Henry

    Big Deal about Mogoeng. So the guy doesn’t quite like gays. Well here’s some news for you ….. neither do 80%+ of our population (no matter what the Constitution says , you can’t change people’s moral feelings about this).

    Seems Pierre would support someone who’s potentially corrupt as long as they’re pro-gay. Sick. Sick.

  • Wedende

    Deuteronomy 16:18-20,
    “You shall appoint judges and officials throughout your tribes to administer justice for the people. You shall not distort justice. You must be impartial. You shall not take a bribe; for a bribe blinds the eyes of the wise and twists the words even of the just.
    Justice, and justice alone, shall be your aim, that you may have life and possess the land which the Lord Your God is giving you”.

    JZ have said: I asked them for 5 years for Ngcobo and they gave me none. So, now I give them 10 Mogoeng Mogoeng years!

  • Andrew Buttress

    My question is if this man is not a wise choice for CJ then why is it that nobody objected vigorously when he was appointed to the Court in the first place? Like the vice president of the US, surely every justice on the court should be qualified to be CJ if the president chooses him or her? After all, is that not the first place the president will look for a successor?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Henry
    August 17, 2011 at 8:00 am

    Hey Henry,

    “Seems Pierre would support someone who’s potentially corrupt as long as they’re pro-gay.”

    That’s an extremely astute observation.

    As is that “80%+ of our population” don’t like gays.

    Are those gut feels or thumb-sucks?

    p.s. Hey AK – see, despite the extreme temptation, it’s possible that I temper my comment :P

  • Henry

    Maggs

    Sure you’re right. Our people just looooove gays and lesbians. That’s why they gang-rape and kill them. ‘Cos they luv them so much.

    As our President rightly stated, being gay is un-African ( brought here by imperialists).

    Do the maths yourself unless you’re too thick.

  • etienne marais

    just a question, pierre:

    does the appointment (promotion) of a current CC judge not still leave a vacancy on the CC (that of the retired Ngcobo)

    also, as currently constituted, the “ideological voting balance” of the CC does not really change; i.e. the CJ only counts for one “vote”

    if my assumption is correct, that one more judge will need to be appointed in order to fill the bench numbers, then this additional appointment’s ideological position (or jurisprudence) that is as important to the overall constitution of the CC

    or do i have it all wrong ?

  • http://constitutionallyspeaking.com Thuso Thebe

    Without negating the eligibility of Judge Mogoeng, one still remains with the question, “how is it that Deputy Chief Justice Dikgang Moseneke may have been considered not suitable?” I think sometimes the President has to furnish exact reasons for his decisions!!!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Henry
    August 17, 2011 at 8:53 am

    Hey Henry,

    “Do the maths yourself unless you’re too thick.”

    I’m too think to do maths as some of my best friends (Brett and JR mainly) will tell you.

    I rather do it the easy way.

    Do you like lesbians and gays?

  • http://colin@nindav.co.za Loudly South Africa

    It is a pity de Vos brought his gayness into the debate. It seems to have muddied the water.

    As I understand it, a human-rights based constitutional democracy protects ALL its inhabitants against “the tyranny of the majority” no matter how much the rest of the population reviles them. (The classic case of its opposite was Hitler’s Germany, where Jews were, in “representativity” terms an insignificant less than 1% of the population). This type of democracy – which SA pretends to have incorporated in its Constitution – means that even a beer-boeped racist child-raping low-life has rights and cannot be summarily dealt with, e.g. by the mob vigilantism which rules in many parts of SA.

    One classic exposition of the Rule of Law is from “A Man for All Seasons” (Robert Bolt’s play about the constitutionalist Thomas More in the time of the despotic Henry VIII)…

    William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

    The converse is Pastor Martin Niemoller’s response to the Nazi attacks on the Jews, Gypsies, Homosexuals and communists

    “First they came for the communists,
    and I didn’t speak out because I wasn’t a communist.
    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.
    Then they came for the Jews,
    and I didn’t speak out because I wasn’t a Jew.
    Then they came for me
    and there was no one left to speak out for me.”

  • http://www.seesa.co.za pilot

    As long as he is independent

  • George Gildenhuys

    An ANC member (aka President Zuma) has made a bad decision again. Why are we surprised? Surely by now we know just to be a member one has to be inept and corrupt..

  • Anonymouse

    You know?! It has been argued and ‘proven’ many times that we have a perfect constitutional system, with the Legislator, the Executive and the Judiciary, each independent on its own terrain (separation of powers), but with appropriate ‘checks and balances’ to allow interaction between the three spheres of government in order to see to it that none oversteps its powers and assumes the powers of one or more of the others, all subject to the most comprehensive and progressive Constitution in the modern world. … UTOPIA! …

    Now, one of those ‘checks and balances’ are set to blow up in our faces. Again, so I would venture, our dear Pres has flouted the Constitution. S 174 provides: “The President as head of the national executive, AFTER consulting with the Judicial Sservice Commission and the leaders of the parties represented in the National Assembly, appoints the CJ and the DCJ and …”

    I have said so before, I think, if I recall well, when Ngcobo was appointed above Moseneke, a ‘nomination’ by the Pres of his choice of CJ, accompanied by an invitation to the JSC and the other parties in the NA to provide him with reasons why he should not appoint his choice in that position, does not amount to ‘CONSULTATION’, as the Pres does not invite ‘counsel’ on the issue – he has already made up his mind! How can the appointment then be said to ever have been done ‘AFTER’ consultation with the JSC and the other parties in the NA?!

    Zuma has no respect for the Constitution – but then again, he is a notorious ‘law-breaker’.

    Mogoeng J Mogoeng is an unwise and clearly wrong choice for CJ. He has no clue even in basic matters of the law. I remember when he was criticized by the SCA for having presided in an appeal where his wife appeared on behalf of the NPA, and, he then decided the appeal in favour of the NPA.

  • Michael Osborne

    Dear Andrew:

    1. As a matter of fact, Germany has paid some $70 billion in reparations to Israel since WWII. Obviously, young Germans bear no personal responsibility for the Holocaust, and most Israelis were born after 1945. Yet the people of Germany for the most part accepted that such repartitions were appropriate.

    2. You ask: “If the case for reparations is not based upon a weighing of the basket of benefits for colonialism against the basket of ills, then precisely on what is it based?” As I said in my prior email, it is based on the elementary principle that a person who is injured by another is entitled to compensation. You may object that many whites now living did not benefit from apartheid. (I say young whites still benefit more than they realize.) But leaving that aside, transgenerational responsibility is not alien to accepted principles of morality and law. I have already referred to German reparations. I could also point you to class actions against large corporations; shareholders who did not own any shares in the corporation at the time of the wrong nonetheless pay up for the sins of past shareholders.

    3. I say the basket-weighing approach is inapplicable because the fact that the wrongdoer previously imparted great benefits to the victim does not get him off the hook for subsequent wrongs. Take the example of a parent who abuses his child. The law will held her responsible both civilly and criminally, and it does not help to plead that, for years before the incident of abuse, she cared for, fed and educated the victim.

    4. All that being said, I agree with you that Tutu and PdV’s proposed race-based tax is on balance a bad idea, and almost certainly unconstitutional.

  • jeffman

    The pattern continues, once again looking after his own skin and the ANC before the country. Behind that grinning facade of Zuma lies true malice and evil.

  • zoo keeper

    Prof

    Please check the system – MO’s post is on the wrong thread.

    On the nomination of the CJ – I thought the Prez had to follow the process after consultations etc?

    Anyway, I have no doubt MM is a loyal cadre of the movement. Whatever he does to the Constitution is not relevant because the ANC’s constitution is regarded as higher than the country’s – as per JZ himself. Its all so simple really.

    What were you expecting – Moseneke the independent-minded??

    I liked Maggs’ post above with your old quote. I also noticed the reference to Chairman Mao. It was not Mao and the gentleman in question was referring to the French student riots just prior to the interview – not the one that gave us Napoleon and guillotine.

    A much mistaken quote that one.

  • Gwebecimele

    I withdraw my earlier disapproval of the nomination and now fully support the nomination of MM. After careful listening to comments on all media playforms , I have come to realise that Pastor MM is being blocked for being a christian (PASTOR), traditionalist, accused of being anti-gay, connservative, africanist etc.

    I am yet to hear people or groups objecting to an appointment of a judge who is capitalist, eurocenrtric, tenderpruneur, gay etc.

    Pastor MM has been a judge since age 36 and is one of our longest serving judges despite false claims of inexperience. As someone has indicated if he is fit to be on CC then he is fit to be CJ. The CC must reflect our society and accomodate as many views as possible.

    Gone are the days when we had gatekeepers who manipulate the processes to only allow darkies that they are comfortable with.

    I hear Pastor MM specialiazes in Admin law and the Prez wants him to sort out our case management systems. Many here make money out of court appearances and might have other fears.

    This is Africa we need more Africanists and Africanism/Ubuntu to ascend to the Bench!!!
    GOOD LUCK MM!!

  • Pierre de Vos

    A transitional levy of 1.67% was imposed on South Africans earning more that R50 000 to pay for the election and other costs associated with the transition. It was NOT a wealth tax per say. Go and have a look at the speeches of the then Minister of FInance before jumping down my throat. I find that it is always better tod eal with the facts, rather than making up stuff because it suits you.

  • Mikhail Dworkin Fassbinder

    Gwebe is right.

    We need CHRISTIAN representation on the CC – after all, more than 90% our people are Christians. MM CJ will be guided by UBUNTU, which, as the Arch has taught us, coincidentally lies at the heart of the message of the Lord Jesus Christ.

    [BTW, it is a myth that Christianity, like the wheel, is a colonial imposition. Africans knew all about Jesus by intuition long before the white missionaries arrived.]

  • ockert

    Pierre de Vos says:
    August 17, 2011 at 11:57 am
    A transitional levy of 1.67% was imposed on South Africans earning more that R50 000 to pay for the election and other costs associated with the transition. It was NOT a wealth tax per say. Go and have a look at the speeches of the then Minister of FInance before jumping down my throat. I find that it is always better tod eal with the facts, rather than making up stuff because it suits you.

    Jy spel kak,redineer kak en dan post jy nog jou kak op die verkeerde thread….uit die mond van Casper de Vries… Pierre de Vos”jy is die domste drol”

  • ockert

    Okay dit was bietjie hard gese.

    Askies Prof de Vos

  • Donovan

    Based on the examples provided by Prof de Vos, one can only conclude that Justice Mogoeng, is like every other member of the judiciary and ardent constitutionalists (like Prof de Vos), one who believes that the judiciary is all that stands between us and the metaphorical wolves at the door, the judiciary is beyond reproach, its judicial officers’ objectivity can never be questioned. In contrast to the democratically elected politicians, who are only out there to feast off the public trough, hoodwink the people, and take all they can get.

    Maybe, unlike Justice Cameron and others, Justive Mogoeng is not as sophisticated in subterfuge and is not able to mask his judicial narcissism like his colleagues and peers. Indeed, he did not see any problem judging a case where his wife was the prosecutor, because he is not an ordinary man, he is a superman of objectivity…..a member of the judicial arm of the State, not the legislative or executive, but the only honest and efficient (no accountability necessary) arm of the State, the judiciary.

    Viva the Constitution, Viva…the one set in concrete, and makes us civilised, otherwise we would just have those annoying values of politicians, like transformation and change.

  • kenneth

    Moseneke at the party after Zuma won the polokwane election, indicated to the losing group of mbeki’s group that he will rule against zuma in the constituional court challenge, and he believed that zuma’s arcetion to power is not good for the country, so he is not impartial just like the majority of you guys,he should have looked at the facts not at a person.

  • Pierre de Vos

    Kenneth, Mosenek said no such thing. You are either misinformed or deliberately telling a lie. What Moseneke said was that he would apply the law and that he would not be swayed not to apply the law by anyone.

  • Gwebecimele

    WHAT A RELIEF, SOMEONE IS AWAKE OUT THERE.

    ANCYL dangerous ‘because they’re right’
    2011-08-16 22:14

    Johannesburg – A leading business academic has challenged SA’s leaders to come up with better solutions to nationalisation, as until more jobs are created the ANC Youth League will be “dangerous” as it can raise nationalisation as a solution due to the continuing failure to create jobs.

    Professor Nick Binedell, director of the Gordon Institute of Business Science, told the southern African internal audit conference that the ANCYL was dangerous “because they are right” – because SA had simply not dealt with the issue of unemployment.

    “Good politics drives good economics,” he said. This was why the nationalisation debate and energising the youth and improving jobs needed to happen.

    “But how can you run a mine if you can’t run a primary school,” he also pointed out.

    New generation

    Business needed to work harder to come up with effective choices that would ensure nationalisation rhetoric died down.

    According to Binedell the rise of Asia, the internet, and the coming of age of a new generation of workers are going to be the key business driving forces of the future.

    He said to heal the poverty SA needed 8% growth for ten years and SA needed leadership to make the best choices as to how it was going to compete.

    He felt SA could compete against the rest of the world, but that it was a pity SA did not have a competitor on its doorstep to make it more competitive.

    “The era of change is going to accelerate over the next 10 years,” he cautioned.

    SA dominance challenged

    In the next 20 years 80% of growth is likely to come from previously peripheral countries, which includes SA. The big driver will be Asia and Binedell says the major challenge will be improving service delivery levels in SA to match those of Asia.

    He said big emerging markets included Brazil, Indonesia, Mexico, Egypt, Nigeria and SA.

    He, however, said SA’s dominance on the continent was starting to be challenged by other African countries, but on the whole Africa had not reached its potential and there were a number of economies in transition, mostly in east Africa.

    Binedell said when Nigerian people got connected to infrastructure, SA would face “a very tough race”.

    He said improved governance institutions were needed to build success.

    Binedell lamented that Africa’s biggest export was not resources, but talent, as 50% of professionals had left their countries of origin across Africa, while in a failed state like Zimbabwe it was as high as 70%.

    Left behind

    According to Binedell the internet will have as much impact as the industrial revolution did. “It is going to drive this era. It is a profound revolution that is still gathering force and we in SA need to be very aware or else we will be left behind.”

    He said he was not aware of any other country the size of SA that had produced as many strong leaders and entrepreneurs, and this should be harnessed now as SA started to compete with the best in the world in the new global paradigm. He rated Sandton as one of the best business hubs globally.

    He said just 10 Brian Joffes could resolve the jobs crisis.

    Joffe built services and distribution company Bidvest into a giant from nothing – it is now rated as one of the world’s best companies and employs more than 105 000 people globally.

  • Donovan

    Yes, he did say that Prof, but he also added or emphasised, that he would not be swayed by anyone, especially the ANC. It is the especially ANC part, that makes people like Kenneth question his objectivity, and then speculate why he chose to reveal this matter at that particular time.

    Or, it oculd be that Justice Moseneke, thought that the only political party that matters, is the one won that wins, and he supports, so he wanted the minority of people to know that his support for the ANC and its leadership will not sway him in considering matters. His support for the ANC, is notwithstanding his historical affiliations for the PAC, who believed that the ANC was controlled by White Jewish Communists, and were too radical, and they wanted to throw all Whites into the sea.

  • Khotshi

    “…after all, more than 90% our people are Christians…”

    This can’t be true! Are these people REAL Christians or do they just CLAIM to be Christians? Surely just becasue you SAY your are a Christian does not necessarily make you one!

    If 90% of South Africans are Christians then I can surely CLAIM to be Christ himself (perhaps I’m the ‘second coming’ everyone has been talking about and I didn’t even realise it)

  • Andrew Buttress

    @ Michael Osborne

    Thank-you for your clarification. It s good to have some civilized debate. I think the rhetoric on this forum only served to inflame anger and frustration, some of it my own.

    You are correct that Germany has indeed paid reparations to Israel. However, I should point out that WW2 ended 66 years ago and such reparations are probably now at an end. I can accept your point that transgenerational liability is not an alien concept. If that is the case then where do we decide where the liability ends? I feel this point is too difficult to decide and should such a tax be levied I believe that it would cause far more discourse than good. The ultimate price this country might end up paying might outweigh any benefit that might stem from it.

    I can only really speak for myself of course. As a 40 year old the first I time I voted under the old regime was in the 1992 referendum to vote Yes for a new political dispensation. This was after having been forcibly conscripted into the army of the old system. Should I now be forced to start paying for the past transgressions of previous generations I would seriously consider simply moving abroad. I’m not sure this country will be better off without me.

    Secondly, the line between having ‘benefitted from apartheid’ and ‘benefitted from being European’ is in my opinion a thin one. Let me elaborate. I feel that although iw net to a good school etc. the educatio I received was actually from the knowledge and cultural values that were instilled in me by my parents. Such education actualy has its roots in europe and is in fact hundreds, if not thousands of years old. I realize that such a view may be seen as ‘racist’ but the truth is that many would view such a tax, not as an honest reparation for a past wrong but simply as a means of punishing the haves by the have-nots.

    I remain unconvinced that the current multi-cultural ideas that shape our society are necessarily the best way forward. BEE for example seems only to benefit a very small minority of shareholders etc. Is there any other model out there that this country can follow to raise the level of wealth in this country without descending into race based arguments?

    Regards

    AB

  • Mikhail Dworkin Fassbinder

    I am not saying that all CC Justices must be Christian. Far from it.

    I do say, however, that we should welcome conservative, Christian judges, like MM CJ. He will bring to the bench the traditional, family-oriented, values of the majority of our people who are followers of Jesus, and who reject the LIBERAL values imposed by colonialism, and the white media.

    Thanks.

  • Donovan

    Just can’t resist, this thread being two topics at once, in interest of efficiency let us have both debates.

    AB buttressed (don’t excuse the deliberate pun) his comments, with this statement: “but simply as a means of punishing the haves by the have-nots.”

    Isn’t the problem not about a tax, but the ‘haves’, whom are overhelmingly white and beneficiaries of apartheid, not willing to help the ‘have-nots’, whom are overwhelmingly Black?

    AB sees it as punishing not as a moral obligation. His European lineage, and superior culture should have pointed out this moral obligation, since they did exactly that in Europe after World War Two, not just for the Jewish people, but also by the middle class paying for the health system, employment, programmes, etc. Funny how convenient this European lineage becomes, when it is directed at the ‘as like’ it becomes all fluffy and liberal, but when the beneficiary will be the ‘different’ it becomes all Calvinist and stoic, with emphasis on taking of yourself over and above those less-fortunate.

  • Brett Nortje

    It is great to have real lawyers like Dr Mouse and ZooKeeper on this blog.

    Dr Mouse, in Afrikaans it is even more clear: “Na oorleg”.

    I was pulling for Joe too, but I hope Judge Mogoeng can explain the ‘issues’ that have been pointed out.

    He has fitted an inspirational life into 50years.

  • Brett Nortje

    Maggs Naidu – maggsnaidu@hotmail.com says:
    August 17, 2011 at 9:34 am

    Maggs, do you want another defamation-suit headed your way? Watch who you call ‘friend’ in public.

  • Andrew Buttress

    @ Donovan

    Hi Donovan,

    I’m not sure I see your last point. However, let me respond to some of what you are saying. Firstly, in any society the rich simply do not help the poor. You are quite correct in that whites on the whole are not willing to help blacks. people naturally look after their own. But I think this simpifies complex issues. Simply giving money away does not create knowledge nor wealth. I am at a loss after debating these issues since my early teen years as to how to solve the racial and income inequalities in this country. I do not believe that another ‘tax’ would have any effect.

    Secondly, even if it did the economic strength of the minority in this country is simply not enough to solve our problems. If I possess R1 million spare cash and there are 1000 poor people each person gets R1000. It does not make them wealthy. Added to this factor is that the white population ai ageing and the black population young and growing. Africa needs, with respect, to break the cycle of poverty by pulling up its own bootstraps.

    Thirdly, to make matters worse the average ‘white guy’ like myself has a better standard of living but does not actually possess much. My house and car are owned by the bank. I too have debts to pay. The people with the real wealth are really a minority of the minority and they will shift more of their wealth off shore. So, when my taxes go up – what happens? I do my own housework. I tip less. I give less. I employ less. I struggle more and the poor get poorer.

    I’m not sure why you say I have a ‘superior’ moral culture. But what I do say is that I should be able to be proud of my heritage, history and where I come from. I should be proud to be who I am. And I should be proud of the contribution that my forefathers and parents have made to this country. If this is immoral then so be it!

    Thanks for the debate

    Cheers

    AB

  • Pekkil

    I guess the issue is not whether European upbringing is ‘superior’, thats a pretty fruitless debate. The debate is whether, (1) as a white person growing up, you’ve enjoyed an ‘above average’ share of public resources and (2) whether that should require some equilisation, or ‘pay-back’, in hindsight. Much of the public commentary seems to be whites arguing that they didn’t cause apartheid – but surely the issue is not whether they caused it, but whether they extracted more than their fair share (ie, what we refer to as ‘fair’ now) of national resources. The answer to (1) should be simple. Whites did take more than their share.

    The 2nd question is thus far more interesting. The Arch was talking, if i heard him right, about a guilt-induced contribution. Simply recognising that whites took more from the public resources than others, could induce such guilt. Anyone who denies the advantages of having been worn ‘white’ in SA is living in cloud cuckoo land.

    Whether such a ‘pay-back’ should be coerced or not is a key issue. From some informal polling – it seems most whites are quite willing to help out. Perhaps it would be much more satisfying to give of our skills, our time, than to pay via SARS? Apartheid was, in the end, a deeply personal injury, and will require an equally personal contribution to be recognised.

    The arguments of public resources being stolen as a reason for disagreeing with this contribution is illogical, unless you, at the same time, start withholding your regular tax payments (and let me know how that works for you).

    Seems we’ve rolled the Arch and Mogoeng into an integrated thread? Wonderful

  • Gwebecimele

    Brett as an ACDP supporter you should be supporting MM.

  • Andrew Buttress

    @ Pekkil

    Thank-you. I’ll agree that whites did take more than their fair share under apartheid. I think your idea of giving of one’s self needs to be commended. My mother recently taught her 55 year old domestic to read! And I drew up her will. Perhaps we need to follow this appraoch.

    Cheers

    AB

  • Andrew Buttress

    Silly question guys – how is Mogoeng Mogoeng going to chnage the actual approach of the court now that he is likely to become the CJ? He has been a judge there for sometime. Is this position not more concerned with a dministration than actual jurisprudence? Should we not rather be concerned who will fill the vacancy?

    Pierre, is there no room for a disseting voice like this on the court? After all, the SCOTUS has Justice Scalia does it not?

  • Ngutyana

    I agree with your line of thought, but you forgot to analyze properly the implications of traditional conservatives and evengelism in modern day south africa. you will spectatularly fail if you used your education to woodwink ordinary folk. Rather a mixture of tradition, culture and religion perform wonders. Such brands of churches thrive on misery, ignorance as the powers that be used culture and tradition to as logically supporting rape. there is a lot for the JZ to gain when this guy is at the helm, granted that the other jurist are duped by him. we need unmask the spectre of traditionalism, culturism, religion deployed by ilks of Malema, JZ etc to fool poor people. for us blacks, time to be sorry ourselves is OVER –whether to “boss Jan -white person” or JZ or Malema driving around or flying over us: we must fight for material subsistance bolstered by rational logic.

  • Michael Osborne

    @ Maggs

    “The opinion that same-sex adult sexual relationships are “always wrong” is highest among black Africans at 81 percent, while 64 percent of coloreds, 70 percent of whites and 76 percent of Indians hold this opinion.”

    Beresford et al, The Politics of Sexuality in South Africa (http://www.sxpolitics.org/frontlines/book/pdf/capitulo6_south_africa.pdf)

  • khosi

    What are these “progressive voices inside the ANC “?

  • Mikhail Dworkin Fassbinder

    @ Andrew

    “My house and car are owned by the bank.”

    Exactly the same is true of Mr Malema. In fact, I heard somewhere that even his Breitlng is owned 81% by Visa, and that he rents most of his shirts and underwear.

    Thanks.

  • Andrew Buttress

    @ Mikhail Dworkin Fassbinder

    Please so not get me started about Julius Malema. Please be that the only thing we have in common. Make no mistake, the guy is actually pretty smart. But his politics and his ideas leave me cold…

    Anyhow, are we not supposed to be talking about Moegoeng? He does not seem to have been a popular choice? Bet everybody who took the Ngcobo affair to court are now wondering if that was a smart move?

    Cheers

    AB

  • sirjay jonson

    Andrew Buttress
    August 17, 2011 at 14:14 p

    “You are quite correct in that whites on the whole are not willing to help blacks.
    people naturally look after their own.|”

    I take issue with this statement Andrew. See the following:

    Don’t blame whites for failures of the ANC
    Rhoda Kadalie
    17 August 2011, politicsweb.co.za

    Hundreds of white people who have been ejected from the system through racism and affirmative action have reinvented themselves and are doing the most amazing work in the non-profit and NGO sectors. They run income-generation projects, they command vast armies of volunteers who tackle the HIV/AIDS and TB pandemics, and they are responsible for vast pockets of social development that the ANC government should be doing.

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=251207&sn=Detail&pid=71616

  • sirjay jonson

    Andrew: I would go a step further than Rhoda’s comment …”hundreds of white people, etc”

    Its actually 1,000’s. Just the service clubs alone must number about 5,000 in South Africa.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Michael Osborne says:
    August 17, 2011 at 15:32 pm,

    Hey Prof MO,

    Lucky for me that the people I know are in the other 24% :P

    Anyway – the looks very shady. I’ll get the original research and see what it says before commenting.

    Either way, viewing same-sex relationships as “always wrong” is hardly the same as “don’t like gays”.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Andrew Buttress says:
    August 17, 2011 at 15:44 pm

    Hey Andrew,

    “Please so not get me started about Julius Malema.”

    Please do get started about Julius Malema – it will be fascinating to hear what you have to say.

    p.s. Is it true that there may have been one Black guy who was smarter than you????

  • etienne marais

    i find it a bit strange that there are no comments about the CC vacancy that will now need to be filled – this appointment will could/might have a greater effect on the “ideological balance” on the CC bench

  • sirjay jonson

    I must say Prof that I am quite amazed at the level of hatred and bile which is addressed to you for having an opinion consistently backed up by facts. There’s appears to be a significant portion of South Africans deeply in denial about just about everything. I suppose that’s global, but it sure seems to amount to a lot kak slinging here on the tip of Africa.

    You must have a backbone of steel to take all the rude and unnecessary abuse thrown at you. Reminds me of folk who use the f##k word in every sentence, having never learned any socially conducive manners.

  • John Roberts

    @ Sirjay

    People don’t comment here to be fucking sociable.
    They do it to get a fucking point across.
    So fuck you and your prissy blinkered attitude.

  • Maggs Naidu – maggsnaidu@hotmail.com

    etienne marais says:
    August 17, 2011 at 17:11 pm

    Hey EM,

    “the CC vacancy”

    Hlophe!!!!!!!!!!

  • Maggs Naidu – maggsnaidu@hotmail.com

    John Roberts says:
    August 17, 2011 at 17:23 pm

    Hey JR,

    “People don’t comment here to be fucking sociable.”

    LOL!

    But a cautionary – lot’s of famous people get their ideas from here maybe wise for you to be lovey-dovey with Sirjay. Vulgar and crude words like “point” and “blinkered” are not cool.

    p.s. WDYT of Brett, eh? He does not want it to be known publicly that he my BFF – that’s pretty unsociable of him I say.

  • John Roberts

    Maggs

    Sirjay is nothing in my life and never will be.

    I respond to the comment and not who makes the comment. ( asides from Gwebe Imbecile who always makes stupid comments)
    I don’t know the person calling himself Brett so I can’t comment on him.
    I do however think the real Dworky is gone and someone has stolen his name. Something is different.

  • Bob

    Whenever the Prof writes about monogender sexual preference he becomes biased. Sorry but the judge’s attitude towards homosexuality does not disqualify him as long as his judgements are in line with the constitution. His failings are rather minor in context of the usual ANC trash, in fact if that is all the dirt that you could find then he might actually be an honest man.

  • Maggs Naidu – maggsnaidu@hotmail.com

    … Mogoeng, who will be chief justice for the next 10 years, barring untimely death, is certainly not the best person for the job. He has a conservative judicial outlook, is less intellectually rigorous than many of his peers, and has little experience on the constitutional bench, which, though not compulsory, is surely deeply desirable. …

    As a sweetener, we were told that he had put together course packs on constitutional law.

    It is unclear whether these facts should count in someone’s favour as possible chief justice of the Constitutional Court a mere two years later.

    Mogoeng was, of all the candidates I saw interviewed then, evidently the weakest, and his subsequent selection to the Constitutional Court surprised many. …

    Mogoeng agreed with the minority judgment of Chief Justice Sandile Ngcobo, who argued that the Hawks were fit for purpose. He was, politically speaking, on the right side of that disagreement between the judges of the Constitutional Court.

    http://www.timeslive.co.za/opinion/commentary/2011/08/17/fit-to-be-chief-justice

  • Maggs Naidu – maggsnaidu@hotmail.com

    Michael Osborne
    August 17, 2011 at 15:32 pm

    Hey Prof MO,

    LOL!

    It was mischievous of you quoting the “research” which puts out suspect information to slant the ‘conclusions’ to support a particular view.

    See p 255 of “South African Social Attitudes Changing Times, Diverse Voices
    Udesh Pillay, Benjamin Roberts, Stephen Rule”

    Rights or wrongs? An exploration of moral values
    Stephen Rule and Bongiwe Mncwango

    Shortly before the new South African Constitution was accepted by Parliament, a Human Sciences Research Council (HSRC) national survey of public opinion produced in September 1995 found that more than half (54 per cent) of South African adults were strongly opposed and a further 10 per cent somewhat opposed to equal rights for heterosexual and homosexual marriages. In racial terms, the two levels of opposition ranged from 40 per cent amongst Indian/Asian South Africans to 63 per cent amongst coloured people, 64 per cent amongst black Africans and 72 per cent amongst white people. The survey also revealed that just over one-third (35 per cent) thought that homosexuality was ‘un-African’, 40 per cent that it was not and 25 per cent were unsure. Nevertheless, the Constitution (Clause 9) protects all its citizens from unfair discrimination either directly or indirectly on the basis of sexual orientation. …

    http://www.hsrcpress.ac.za/downloadpdf.php?pdffile=files%2FPDF%2F2139%2F2139_00_SASAS%7E42200642540PM.pdf&downloadfilename=South%20African%20Social%20Attitudes%20-%20South%20African%20Social%20Attitudes%20-%20Entire%20eBook

  • Michael Osborne

    Maggs, apologies for the mischief. I made those Beresford figures up, just to test your Googling skills. (BTW, did you know that most South Africans abhor the death penalty? Hence the huge parties thrown in public squares every year on the anniversary of the Makwanyane decision!)

  • Maggs Naidu – maggsnaidu@hotmail.com

    Henry
    August 17, 2011 at 8:53 am

    Hey Henry,

    Maths I discovered is not my strong point (not that I have any strong points :))

    What say you to the HSRC findings which says that just over one-third (35 per cent) thought that homosexuality was ‘un-African’, 40 per cent that it was not and 25 per cent were unsure.?

    Maybe whoever told you that “80%+ of our population” don’t like gays may want to check that again.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Michael Osborne
    August 17, 2011 at 23:58 pm

    Hey Prof MO,

    I saw the figures you quoted.

    And I saw the report I referenced above.

    Is it wise to rely on either at this point?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Michael Osborne
    August 17, 2011 at 23:58 pm

    Hey Prof MO,

    “Hence the huge parties thrown in public squares every year on the anniversary of the Makwanyane decision”

    Damn – I haven’t been invited. Let me know when the next one is happening – any opportunity for free booze.

    p.s. I need a little help with equating “always wrong” with “don’t like”. Please spare a thought for the slow fellow that I am and explain it.

  • http://Www.webmail.co.za Dennis Lekaka

    It is clear that Justice Moseneke is sidelined for being able to state that when applying the constitution he would not fear anyone,the statement which was wrongly interpreted by Zuma and his allies that the learned judge reffered to him.Besides Moseneke’s constitutional application of fearless we have to revert that Moseneke was once Deputy President of PAC which might also prejudice him to lead the bench.It is my submission that since we the legal fraternity concerned about unwise decision that have negative impact to our judicial independence and the principle of separation of powers,checks and balances by President Zuma who possessed no matric certificate less even old standard 6,there is a need for constitutional amendments to repeal the president vested powers to appoint judge the decision which I believe should only be vested to the Judicial Service Commission through votes after the candidates being interviewed for vacancies.
    This will avoid unwise decision by President like Zuma who considers his allies without considering the views of majority and appoints openly unfit and unsuitable candidates that ruin our judiciary.

  • http://colin@nindav.co.za Loudly South Africa

    @ Dennis Lekaka
    I am afraid that you are correct.
    See http://www.businessday.co.za/articles/Content.aspx?id=150960
    also http://dailymaverick.co.za/article/2011-08-18-chief-justice-controversy-why-did-sisi-khampepe-say-no-to-jacob-zuma

    Unfortunately, the ANC seems hell-bent of following the worst of the Nats’ precedents. There have been comments about the overlooking of Judge Schreiner, but there were also the non-appointment of Nelson Mandela defence advocate Israel Maisels to the bench despite his being considered the leading “silk” in the country and the appointment of Braam Lategaan, the prosecutor who “Mpshe’d” the Info Scandal.

    BTW: Jacob 783 always claims that his decisions are a collective one, so it is the entire NEC that is behind this bit of gerrymandering…

  • jeffman

    Well said Dennis!

  • Peter John

    Reported on 22 Aug 2011
    The Institute for Accountability in Southern Africa has questioned nominated chief justice Mogoeng Mogoeng’s conservative religious beliefs, saying that these could lead to conflict between the State, church and judiciary. This after a report that Mogoeng is a pastor in the Winners Chapel International congregation, which preaches that homosexuality is a perversion and abortion is taboo. The church boasts that it has cured members of a host of illnesses through prayer.

  • Gwebecimele

    Lets hope these are more real than those of Ministers.

    http://www.businessday.co.za/articles/Content.aspx?id=151423

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  • Anyway

    Pierre’s sexual orientation has no bearing on the credibility of his commentary. And those that have touched on this fact, with ill-founded notions of a so-called Christian country where 80% of its citizens hate or disagree with homosexuality, have misunderstood the crux of this article.

    After following the proceedings of the Justice Mogoeng (JM) interview for two days it is evident that he lacks the experience and intellectual leadership to provide the strategic oversight required of a Chief Justice, apart from the personality issues such as his temper and blatant arrogance.

    I agree with Mr van der Merwe that he should have declined the nomination and refuse to be a political instrument for both Zuma and Jeff Radebe.

    On that note, making references to Brenda Fassie’s song during the proceedings and basically telling JM that the job is his, Radebe showed total disregard for the interview panel, the journalists at the proceedings and the millions of South Africans who watched yet another minister showing a lack of grey matter.

    As a young gay African male I was offended when the man sitting in the highest office of the land, JZ, declared homosexuality as “un-African” and an import of white imperialists. Frankly, I don’t care if MM is a pastor or JZ is homophobic as long as those in such positions refrain from making irresponsible public statements to incite hate towards sexual minorities.

    And one last comment, gays and lesbians or the LGBTI community is not asking for any special rights or privileges as some of you here have commented. We want the same human dignity paid to all the citizens that live in this country whether they are heterosexual, homosexual, transgendered or intersex. That’s all we ask for… as your fellow citizens that pay taxes and contribute to the society that we all live in, equality for all!

  • J

    I was extremely angered to read the many homophobic and ignorant comments posted here.

    The whole idea of homosexuality as a ‘western’ or ‘imperialist’ import is laughable, when one considers that the people making these claims for what may or may not be considered ‘African’ have no qualms drinking important scotch or driving high-end foreign makes of cars.

    This common anxiety of ‘forcing homosexuality down people’s throats’ is ironic when the newly appointed ‘chief’ ‘justice’ has no qualms with grown men forcing digits and appendages into pre-pubescent girls. Who really is doing any forcing? Not gay people engaged in mutually consenting relationships, who are not using patriarchal hegemony to condone acts of sexual violence.

    A relationship of mutual, adult consent is not only none of other people’s business, for every type of gay interaction, be it romantic, purely sexual, there is a similar kind of relationship between heterosexual people. LGBTI people are no more sexually unorthodox as a (presumed) ‘whole’ or ‘group’ than heterosexual people.

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