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.