Constitutional Hill

What happened to reasoned debate?

The debate about the wisdom of appointing Justice Mogoeng Mogoeng as Chief Justice, given the fact that he has had some ethical lapses in the past, that he appears to have a “gender problem”, and that he belongs to a church that holds extreme views – even by the standards of a modern evangelical church – has revealed much about South Africa’s racial fault-lines and about the very different conceptions about democracy of various groups in South Africa.

This Sunday, City Press uncovered an unreported judgment (now online in the Seminar Room) of the nominee in which Mogoeng, reviewing the case of a woman brutally assaulted by her boyfriend, reduced the man’s sentence from 2 years in jail to a fine of R2000. The woman was tied to a vehicle with wire and dragged at a “fairly high speed” behind the car for some 50 metres on a gravel road. The paper says that after hearing the matter on review in 2001, Mogoeng held that the two years sentence of Eric Mathibe was “too harsh by any standards”, noting, among other things, that he had been “provoked” by the complainant.

Mogoeng noted the complainant did not sustain “serious injuries”. She had several abrasions on her stomach, right leg and both knees. The victim was in pain, but Mathibe refused to let her have medical treatment on the day of the incident. He took her to consult a doctor the following day. The trial magistrate defended the sentence by saying assault on women was a problem in the district and that the crime was “barbaric and ancient”. Mogoeng seemingly did not agree, handing down a judgment that would surely upset any self-respecting gender activist. It would be akin to a judge setting aside a jail sentence of a farmer who had seriously assaulted a farm worker and had dragged the farm worker behind his bakkie on the basis that the sentence was too harsh (something, alas, that is not unknown to our judicial system).

City Press and its sister paper Rapport also reported that Mogoeng belongs to Winners Chapel International church, an institution that believes homosexuality is a perversion and members can buy the Bishop’s book on how to get divine deliverance from it. The church was founded and is guided by Nigerian Bishop David Oyedepo, says the report. It believes in faith-healing for various diseases and has published the testimony of a man whose prayers it claims brought a baby into the world after the mother had been pregnant for five years and seven months, but was unable to deliver the child. Mogoeng is said to deliver “pastoral services” for the church, but does not preach.

Of course, one would not have to look very far to find South Africans who share these views. Many men believe that women “provoke” men into raping them by wearing short skirts or high heels. Other men believe women “provoke” men to assault them by not obeying the orders of their husbands or boyfriends or by flirting with other men. And many South Africans have quite strange and even downright weird religious beliefs while others are athiests or are agnostic.

However, the question is not whether these beliefs are widespread, but whether it is appropriate that the Chief Justice of South Africa should hold such beliefs – given the commitments contained in our Constitution. The beliefs of a nominee for Chief Justice should not be problematic merely because they differ from one’s own. The beliefs should be problematic – as they might very well be in this case – because they cannot be squared with the values enshrined in the Constitution, which values the Chief Justice would symbolically be embodying and would be required to uphold – regardless of his personal beliefs.

If one happens to be a right-wing traditionalist or a patriarch one would be hard pressed not to cheer on this possible appointment of Justice Mogoeng as Chief Justice. (That is why the Freedom Front Plus and Inkatha Freedom Party should find it easy to support this nomination.) If one happens to embrace the progressive values enshrined in the Constitution and if one is honest with oneself and not overtly defensive, one would have to admit that one could not – with a clear conscience – support such an appointment.  (Cosatu and the SACP should therefore really be deeply worried about the nomination of Mogoeng as Chief Justice.)

Or so it seems.

But this is not how the debate has unfolded. Many seemingly progressive and respected individuals, people whose views one would otherwise take seriously and respect, have sprung to the defense of the nominee on the basis that he was black and hence could not be criticised because it was not allowed to criticise a black nominee  as this would “undermine” him or on the basis that he was nominated by the President and hence that it would be insulting to the President to criticise the nomination. Other conservative voices have criticised the appointment – perhaps because they would criticise any decision that our President makes – no matter how wise that decision might be.

Personally I find the reasons for defending the nominee startling, to say the least. Perhaps it says much about the manner in which we have all been infected and tainted by our apartheid past, that so many South Africans are incapable of making a reasoned assessment about the wisdom of the nomination, based on their values and principles and not based on some other kind of misplaced solidarity, prejudice, hatred or defensiveness.

Not all South Africans seem to have been able to escape the effects of the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks. For such individuals – black and white - there is nothing wrong with believing that black South Africans do not deserve the best and that they should be happy to settle for second or third best.

Why else would so many people support the appointment of Mogoeng Mogoeng, whom no person – as far as I am aware – has stated is the best person for the job of Chief Justice? Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the on-going propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke?

By saying this I am in no way trying to minimise the harsh and cruel effects of apartheid. On the contrary, I am taking these effects seriously but asking what can be done to free us all of a deeply ingrained but horribly offensive and corrosive apartheid mind-set that bedevils so much of our private actions and what passes as our public discourse. While many (but by no means all) white people who take part in public debates exude a kind of moral arrogance and superiority that is deeply offensive and hurtful to those who are patronised, subjected to discrimination or ignored, many black South Africans (but by no means all) seem to embrace the mediocrity ascribed to them by those very racists whom we should all surely despise and whose beliefs we should work very hard to undermine.

Secondly, I am really perplexed by the argument that we should not be allowed to comment on the quality of the candidate nominated by the President because that would show disrespect to the President. This view seems, to me at least, deeply undemocratic. Section 174(3) of the Constitution states that the President as head of the national executive appoints the Chief Justice, “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”

The President must consult and then – after consulting – must appoint the candidate of his choice after having taken into account the views of the JSC and the leaders of opposition parties. In 1999, in President of the Republic of South Africa and Others v SARFU and Others the Constitutional Court considered the appointment of Constitutional Court judges under the Interim Constitution, which required, inter alia, that the President had to appoint such judges “after consultation with the Chief Justice.  The court held that :

It follows …  that this appointment could only take place in good faith after consulting the Chief Justice and giving serious consideration to his views.”

The heart of the matter – as also confirmed by many other judicial authorities – is that the President must consider other views meaningfully, and give them serious consideration, although it is clear the final decision rests with him. In doing so, the views of the public must necessarily play a role. If, say, the JSC informs the President that his nominee for Chief Justice lacks the gravitas, judicial stature, belief in the values enshrined in the Constitution and/or support of the judiciary as a whole and that such an appointment would be unwise – something the JSC clearly is entitled to do – the President may nevertheless proceed with the appointment.

In the absence of political consequences the President will never take the views of the JSC seriously and in the absence of a democratic debate there can therefore not be meaningful consultation between the JSC and the President. What would force the President to reconsider the appointment he wishes to make is the court of public opinion. But that court – which is conducted in the democratic space itself by all citizens - would only be able to make an informed decision on whether it supports the decision of the President if there is widespread discussion and debate about the merits and the demerits of the President’s preferred candidate.

To suggest, as some have done, that we should not be allowed to discuss – in a considered and responsible manner – whether the nominee is suitable for appointment merely because our “great leader”, our “wise father”, our “benevolent patriarch” has decided that he should be appointed, is profoundly anti-democratic and deeply insulting to the South African voters.

This does not mean that we should gratuitously insult the nominee in the process. I therefore agree with Paul Berkowitz that Zapiro’s cartoon about this matter was a deeply problematic one. As Berkowitz wrote in the Daily Maverick:

This cartoon falls far short of that standard – it may in fact be my least-favourite cartoon of his to date. In contrast to his normal scalpel-sharp analysis, this was a hatchet job. Mogoeng is painted as a sycophant, an obedient servant of the president who is being rewarded for his pliancy.

But surely it is possible to find the middle ground in between the “hatchet job” done by Zapiro on the nominee, and the sycophantic and often completely mindless and anti-democratic arguments put up in defence of Justice Mogoeng’s nomination as Chief Justice? Surely we can talk in a relatively civil and reasoned manner about what characteristics a good judge and a good Chief Justice should possess and then proceed to analyse Judge Mogoeng’s record to determine whether he indeed possesses these characteristics. Surely, in a democracy we all have both a right and a duty to apply our minds to the matter and not to jump to conclusions based on our racial insecurities, our apartheid-imposed sense of shame and self-hatred or our knee-jerk hatred of the President and the ANC?

When we engage in this discussion we are not undermining the nominee. On the contrary, we are treating the nominee with the requisite respect by taking his or her views seriously and by not treating the nominee as a disembodied symbol respresenting a specific race or gender, but as an individual human being with strenghts and weaknesses, with his own ideas and values, with an agency which the apartheid system wanted to deny all black South Africans.

Personally – for reasons provided in this and previous post - I am deeply concerned about the possible nomination of Justice Mogoeng Mogoeng as Chief Justice. In my view there is ample evidence that he is not the best person for the job and that his value system is not in line with that embodied by our Constitution. Unlike the appointment of Chaskalson, Langa and Ngcobo – which I all supported enthusiastically – I cannot support this appointment. Saying so is difficult because it exposes one to attack and accusations of racism, treachery and worse. It also possibly bedevils future interactions with the new Chief Justice and other members of that court. I would have preferred not to have to make this argument, but I would surely have been a coward if I had kept silent. Keeping silent would also have been deeply patronising to the nominee.

But in engaging in this debate it would have been nice to hear reasoned arguments that support the opposite view, arguments which analyse the nominees strengths and attempts to demonstrate why the values displayed by the nominee in his interviews and judgments are admirable and more or less in line with the values embodied in our Constitution.

So far we have been ill-served by those who defend the nomination. Their failure to make reasoned arguments in favour of his nomination impoverishes the debate and disrespects the democratic space which our Constitution envisaged would be used wisely by all citizens with the power to speak so that we can debate the issues and so that those who are required to make these difficult decisions can hopefully make the wisest possible choice.

  • George Gildenhuys

    “Not all South Africans seem to have been able to escape the effects of the ideology of apartheid…”

    You know Prof, you can’t have your cake and eat it. On the one hand you complain about this debate being laced with our Apartheid past and yet just a couple of blogs ago you advocated a “reparations” tax on white people. Not to mention a lot of your previous comments about affirmative action, BEE etc.

    The fact that we continue with race ideology on one field means it will spill over in all other fields.

    You want the chattering classes to recognise race when it comes to preferential treatment of money and jobs, yet ignore it when it comes to comments about judicial appointments.

    Where I am from we call that having your bread buttered on both sides.

  • John Roberts

    This is the African way.

    Show your support by taking a very simple task and making a huge fuckup of it.

  • George Gildenhuys

    agree with the rest of the post though…

  • Maggs Naidu – maggsnaidu@hotmail.com

    the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke.

    He’s out of the running.

    He would have been the choice of many people – not Zuma’s.

    But then he was not Zuma’s first choice, nor his second, not even the third – if reports are correct. It may be that M-squared was the first asked from within the judges on the CC though.

    Anyway Moseneke has wisely made it plain that he is not interested in the post. Well done to him – he retains the moral high ground. M-squared on the other hand will have a full ten years of being the guy that not many will want to have around the dinner table.

    Let’s hope that the JSC will do the right thing and extract the public commitments from the nominee that where his personal views are in conflict with our Constitution that he will stand by our Constitution.

  • abidam

    It is hard to speak out and admit that your party, the ruling party, is really being led up the wrong road; the road that leads to a failed state. When you are really frustrated you can blame “the whites” like Tutu.

    Even our esteemed prof has to sugar his own deeply founded unease with the state of affairs by blaming everything on the whites. But at least he shows he is not afraid to speak out although with some trepidation;

    “I cannot support this appointment. Saying so is difficult because it exposes one to attack and accusations of racism, treachery and worse. It also possibly bedevils future interactions with the new Chief Justice and other members of that court.”

  • Coenie

    Well reasoned.

  • John Roberts

    @ Pierre

    “….the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks.”

    That’s just crap. Many people did not believe that. They believed that blacks were a danger to them. And looking at the current state of affairs today you can see why. Even today I don’t engage in argument (or reasoned debate) with blacks as I believe they’ll rather kill you than lose an argument.

  • Zulani

    John, John, John……

  • Graham

    Ah, Pierre, I largely agree with what you have to say, except for the following provisos:
    Let me say with all due sensitivity, tact ,empathy and understanding that, no matter how you spin it, homosexuality in in fact, er, a perversion.
    Furthermore, the statement “…apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans…” – sounds like a serious case of cognitive dissonance.
    Also the statement, “If one happens to be a right-wing traditionalist or a patriarch one would be hard pressed not to cheer on this possible appointment of Justice Mogoeng as Chief Justice. (That is why the Freedom Front Plus and Inkatha Freedom Party should find it easy to support this nomination.)” my be largely true, but your message is negated by your irresistible urge to take a cheap shot at Buthelezi’s and Pieter Mulder’s party. This is exactly what you are condemning Zapiro for with his latest cartoon.
    So, I can only give you 7/10 for this essay, with the caveat on your report card, “Pierre is a conscientious and diligent lad, but he can do better.”

  • Snowman

    John Roberts: I agree

    Graham: what you are saying, as I under stand it, is that Pierre encourages people to believe that homosexuality is a lifestyle choice and not the serious mental illness that they truly is?

  • Maggs Naidu – maggsnaidu@hotmail.com

    John Roberts
    August 22, 2011 at 18:05 pm

    Hey JR,

    “They believed that blacks were a danger to them. And looking at the current state of affairs today you can see why. ”

    You know that’s not true. Apartheid existed because those who supported the iniquity had a sense of entitlement to the best of everything.

    Like PdV wisely said elsewhere – ‘Get your facts straight before making false statements.’

    p.s. “Even today I don’t engage in argument (or reasoned debate) with blacks as I believe they’ll rather kill you than lose an argument.”

    Interesting – hopefully you are speaking from experience.

    Do tell about the time you won an argument and got killed.

  • John Roberts

    @ Maggs

    How can Pierre know what each individual thought ? Crap man !

    Some weeks ago I engaged a black builder to extend part of my patio. During the process we had a discussion about whether the extension was level with the rest of the patio. No raised voices. No swearwords. Just man to man. As the paying customer I insisted that it be to my specification. After many minutes of discussion his response was to pick up a sledge-hammer and threaten me, accusing me of racism ! I locked myself inside, pressed the alarm panic button and called the flying squad. My armed response guys took 2 minutes to get there and remove him. I’m still waiting for the flying squad.

    That would not happen with a white builder or a white policeman.

    So fuck you, Pierre, and all those who call me racist. I speak from experience.

    As for getting my facts right, Maggs … fuck you too … the facts are as I experienced things … not as Pierre likes to imagine they were whilst painting all whites with the same Big Lie.

  • Maggs Naidu – maggsnaidu@hotmail.com

    John Roberts
    August 22, 2011 at 19:47 pm

    Hey JR,

    “As for getting my facts right, Maggs … fuck you too”.

    Now that you got your facts right, you’re free to make false statements.

    BTW – you have not yet said whether the guy with the sledgehammer killed you.

    Did he?

    p.s. I believe you when you say “No raised voices. No swearwords. Just man to man.”

  • Nordlicht

    @ Pierre:

    You can’t seriously expect a “reasoned debate” when mentioning apartheid, homosexuality, AND uppity whites all in one post, can you now?

  • Maggs Naidu – maggsnaidu@hotmail.com

    PdV wrote : “The church was founded and is guided by Nigerian Bishop David Oyedepo”

    This may well be the solution to all our challenges. Thank you to our CJ nominee for exposing us to this fascinating institution.

    No longer will we need the Ministry and/or department of Health :

    I joined this Commission in 1996; and sometimes in 2005, I fell sick and developed a strange cough.

    The strange cough made me lose weight. I went for a test in the hospital and it was diagnosed to be tuberculosis. When the doctors told me, I rejected it and then came home to tell my sister.

    My sister and I held hands and prayed together and she declared that the report of the Lord says I am healed.

    As we prayed, I also sowed a seed concerning my health. I as well dropped the result of the test on the ground and placed my two legs on it and prayed fervently.

    Later, I went to the hospital to collect the result of other tests and they told me that the result for the tuberculosis is negative.

    Education and Public Works will also be redundant :

    Something supernatural happened a week to the time of resumption of the students. My wife asked me, “The students are expected to resume classes in a week’s time, but where are they to resume to?” And I responded humorously, “Is it your school?” As expected, God (the owner of the school) showed up, and showed me a property at 30, Katsina Road, Kaduna, in a flash. I had never been to or known anyone in that facility, but He pointed it out to me saying, ”That is the school.”

    As I got to the office that morning I dispatched one of my staff, who when he arrived at that facility, met the owner without knowing, and asked him, “Sir, are you the landlord of this building?” The man said, “Jesus is the landlord, I am only a caretaker.” “Sir,” he continued, “We need this property for our Bible School,” and the man responded, “If it’s for Bible School, then it is free.” That was how the property was given to us without paying a dime from 1986 to 1989, when we left on our own volition. Interestingly, the landlord was one of the pioneer students of WOFBI.

    Foreign Affairs too can downsize :

    The Foreign Mission Mandate

    It was on May 4, 1994, as I was driving from a meeting held in Zaria to Kaduna, that the Lord spoke to me in very clear terms, ”The harvest of Africa is now over-ripe, rush in and preserve it from decadence.”

    On May 8, 1994, with a giant map of Africa, we dedicated the mandate to God for execution and by January 15, 1995 the first set of missionaries left the shores of Nigeria. Today, we are in about 32 African nations and operating in 63 cities and towns in those nations. It’s clear again that what God speaks with His mouth, He performs with His Hand (I Kings

    Powerful stuff from our CJ2B’s church :

    So I commanded him ‘Satan, now take your things and get out of this house, in Jesus name!’ Then I turned to the condition (the swollen testes), I said: ‘look I have dealt with your commander-in-chief. Now, I curse you wherever your root is located, wither from your root and die!’

    Within one week, that was the end of it! Praise the LIVING GOD!!”

    Much more, David Oyedepo’s books have this irresistible power to arrest the conscience of their readers. They are books that have a definite kind of not only life transforming, but also nation-changing power.

    It may well be the anointing oil from Bishop David Oyedepo that helped President Zuma make this sage nomination.

    Too bad for Moseneke that he did not get any of that anointing oil – but DCJ, maybe ask M-squared for some. It will help you a lot. Or you can make a donation in cash (but the oil is better). Maybe next time you will get the post you rightfully deserve.

    p.s. Maybe it was not baby oil that President Zuma used, it must have been this anointing oil. Sorry for former President Mbeki – if he had some he would not have been fired.

    Well done President Zuma – we are saved thanks to you for spotting our saviour.

  • Cicero

    I’d rather be a racist than a homosexual.

    Racism is far easier to understand in the context of how God made different races from the 12 tribes of Israel.

  • etienne marais

    JR hiding behind his panic button…precious image.

    (but yet, so typical of his type)

  • anton kleinschmidt

    The weight of public opinion seems to be behind you and
    everything that you have said about the nomination of Judge Mogoeng may well be valid. You clearly realise that you have not made many friends within ruling structures.

    What I cannot understand is your need to build in an appeasement factor into nearly every blog where you criticise the ANC. Do you really think that your concommitant criticism of whites and the undoubted evils of apartheid, will make Zuma and Company feel better about your criticism of the ANC.

  • Marco Polo

    If you want to know about kooky views, here are two:
    1. Judges, academics and journalists who think that an anus and a vagina are interchangeable sex organs.

    2. An expert in constitutional law who thinks that the “right-wing” views held by the chief justice are a result of apartheid. Some leftists just can’t face the fact that large numbers of black South Africans have patriarchal, conservative or traditionalist beliefs that HAVE NOTHING TO DO WITH WHITES OR APARTHEID.

    Yes, Prof de Vos, I do realise that associating patriarchal, conservative or traditionalist views with apartheid is a tactic designed to make black South Africans ashamed of holding such views. It’s not going to work. All you are going to do is make black South Africans who hold such views feel insulted and alienate them even further from your liberal agenda.

    You’re the aberrant minority; deal with it.

  • anton kleinschmidt

    I liked this one from somebody who goes by the name Gary “Wombat” Robson……….. “I think the swearingest people I know are kids trying to sound grown-up.”

  • Nationise the Minds

    Why are you holding MM’s religion against him ? Freedom of religion is a protected right. We all have our own religions such as:

    Agnosticism
    Atheism
    Catholicism
    Homosexuality
    Oprah Winfreyism

    In fact, Edwin Cameron’s Homosexuality religion was mentioned on this blog as a reason to appoint him.

    Give the man a break on this score – but keep the pressure up on the rest of the allegations.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Well spotted people.
    ————————————————————————————————–
    Graham
    August 22, 2011 at 18:31 pm

    “homosexuality in in fact, er, a perversion.”

    Snowman
    August 22, 2011 at 18:34 pm

    “homosexuality is a lifestyle choice and not the serious mental illness that they truly is?”

    Cicero
    August 22, 2011 at 20:49 pm

    “I’d rather be a racist than a homosexual.”

    Marco Polo
    August 22, 2011 at 21:45 pm

    “Judges, academics and journalists who think that an anus and a vagina are interchangeable sex organs.”
    ————————————————————————————————–
    Well there’s hope and simple cures now that we have discovered “Winners Chapel International”.

    Wise move President Zuma on exposing us to this – there’s hope and salvation for philanders too, so you’re also saved.

    It’s all here in a few easy steps.

    http://winnersnairobi.org/family/index.php?flag=family&fmlid=15&fctid=4

  • Cicero

    @ Etienne

    And what type is that arsehole ?

    The type that contributes millions to this economy so blacks on state welfare can suck me dry. I probably pay more tax a month than you earn in a year.

    So fuck you.

    You obviously can’t afford armed response. Or you’re stupid. My bet is both.

  • Mikhail Dworkin Fassbinder

    @ Anton

    Yes, the vast majority of South Africans has risen above their deeply set homophobic and Christianist tendencies to demand that M-squared revert to silent obscurity. (I read somewhere that sleepy villages near Pongola and organising “Ditch MM” committees.)

  • Faan

    The lack of Mogoeng’s experience and expertise outweighs, in my opinion, his religious and other prejudices. I simply don’t regard him fitting to serve as an ordinary judge in a provincial or local division of a high court, let alone serve as a judge in the concourt. The house of lords (england”s top court) boasts with a bench of judges that has seen at least 25 years of law practicing experience and all were silks). As I understand it, JZ could have nominated someone from outside the concourt, why not someone with adequate experience from the best that the bar councils have on offer? Why this reluctance to draw legal minds from such established pool of jurists? Is it such a leap to infer from such failure that “other” agendas motivated the unfortunate nomination?

  • Faan

    Pierre, am I wrong to question Mogoeng’s experience and expertise so blatantly?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Cicero
    August 22, 2011 at 23:36 pm

    JR – nice disguise.

    :P

  • Maggs Naidu – maggsnaidu@hotmail.com

    Faan
    August 22, 2011 at 23:58 pm

    “JZ could have nominated someone from outside the concourt”

    He tried.

    It seems that those with high self worth refused to accept the nomination.

  • Faan

    No Mags, as I understand it, the invitations were confined to some current concourt judges.

  • Nationalise the Minds

    Zapiro’s Mogoeng / Zuma cartoon is on point. Perhaps Mogoeng will be rebranded Judge Baasfinder?

    (Apologies to Mikhail.)

  • Maggs Naidu – maggsnaidu@hotmail.com

    Faan
    August 23, 2011 at 0:40 am

    The names bandied about in the media are not accurate.

    Only one CC judge was approached (and accepted nomination).

    A respected JP turned down the invitation.

  • Chris (not the right wing guy!)

    Maggs Naidu – maggsnaidu@hotmail.com says:
    August 23, 2011 at 0:53 am

    LOL! I don’t have that info, but I bet it wasn’t Mr Slippery!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Chris (not the right wing guy!)
    August 23, 2011 at 8:38 am

    Hey Right Wing Guy,

    “I don’t have that info, but I bet it wasn’t Mr Slippery!”

    ‘Respected’ will give you a clue of who it was not :P

    And it was not this guy either -

    THE SA Communist Party in KwaZulu-Natal has called for the redeployment of national prosecuting authority boss Menzi Simelane, saying he has failed and the NPA appears inefficient under his watch compared with his predecessors.

    http://www.sowetanlive.co.za/news/2011/08/22/sacp-gatvol-with-simelane

  • mhlongo

    It’s really sad, Pierre asks for some reasoned debate and all he gets is homophobic vitriol.

    These homophobes are apparently oblivious of the hypocrisy entailed in their questioning of Mogoeng’s nomination. A homophobe is the last person to tell us what qualities do constitutional values require of a judge. after all, what does a homophobe know about constitutional values or morality for that matter?

  • anton kleinschmidt

    I sometimes wonder about peoples choice of pen-names

    Wiki ……..”no other antique personality has inspired venomous dislike as Cicero especially in more modern times. Engels notably referred to him as “the most contemptible scoundrel in history” for upholding republican “democracy”, while at the same time denouncing land and class reforms.”

    “Denouncing land and class reforms.”…………..now who does that sound like?

  • Donovan

    A few remarks.

    Firstly, I have read many comments and articles on the nomination of Mogoeng, but I have yet to read or hear a defence of the nomination on the basis of being Black. I do not know where you read this Prof, but I suspect you are making it up. Mantashe said that those who oppose his nomination, are doing so because they hate the ANC, and are racist, is not defending Mogoeng because he is Black.

    Secondly, as alluded by you in previous posts, there is a distinction to be made between questioning the President’s right or authority to nominate and the wisdom of his nomination. Every citizen in the country has a right to criticise and comment on the President’s nominee, indeed, to examine the credentials of the nominee, that does not mean they are being disrespectful or not accepting the Presidents authority to nominate. Linked to this one would also expect that the respect for the Chief Justice would always remain even if a person did not support the nomination.

    Thirdly, the points made about the character, possible conservative or reactionary views of Mogoeng are all relevant. It cannot only be academic qualifications but your world view that also matters. However, one believes that they are relevant not just for any person being Chief Justice, but can a person with these views be a judge, or even a magistrate. Why are aspersions only cast because of his elevation towards Chief Justice? Was it okay for no-one to know this conservative world view, when he was just a judge? Is there anything like ‘just a judge’?

    In my opinion, your world view, especially social views, do matter. Therefore, if you have the slightest hint of a racist outlook, or are homophobic or sexist you should be grilled and questioned on that. Judges views must be known so that they do not use their backward views to convict, sentence, or even find people ‘not guilty’. Those who appoint judges must be questioned how they recommended a homophobe and sexist for the post of judge?

    Is this not the transformation of the judiciary that should occur? Transforming these elitist structures, with alternative ways of ‘old boys clubs’, and making them accountable for their decisions.

  • Maggs Naidu – maggsnaidu@hotmail.com

    It will be interesting to hear (if the JSC gets ask the kind of questions which will extract commitments from the CJ nominee on his personal views vis-a-vis our Constitution) what our CJs stance will be on this kind of revelation.

    Ripe with Abuse

    Human Rights Conditions in South Africa’s Fruit and Wine Industries

    Every year, millions of consumers around the world enjoy South African fruits and the renowned wines that come from its vineyards. Yet the farmworkers who produce these goods for domestic consumption and international export are among the most vulnerable people in South African society: working long hours in harsh weather conditions, often without access to toilets or drinking water, they are exposed to toxic pesticides that are sprayed on crops. For this physically grueling work they earn among the lowest wages in South Africa and are often denied benefits to which they are legally entitled. Many farmworkers confront obstacles to union formation, which remains at negligible levels in the Western Cape agricultural sector. Farmworkers and others who live on farms often have insecure land tenure rights, rendering them and their families vulnerable to evictions or displacement—in some cases, from the land on which they were born.

    http://www.hrw.org/embargo/node/101085?signature=0878b37e7b823d0553bebf3ac0db4bd0&suid=6

  • jeffman

    What, nobody commenting on the unreported judgement! A fine for dragging a woman behind your vehicle!!!!!!!! Only In Africa……This man is not fit to be a
    magistrate, never mind the CJ.

  • Maggs Naidu – maggsnaidu@hotmail.com

    jeffman
    August 23, 2011 at 10:04 am

    Hey Jeffman,

    It may well be that there is over reaction to the particular judgement.

    I recall in a rape matter one of the SCA judges went on the say something like ‘on a scale of 1 to 5, the rape is rated 3′. Not much reaction from the ‘experts’ then.

    It may well turn out that when all is considered the judgement, taken in context, may have been appropriate.

  • Mzo
  • Mzo

    oops “stab”

  • Anonymouse

    “Not all South Africans seem to have been able to escape the effects of the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks. For such individuals – black and white – there is nothing wrong with believing that black South Africans do not deserve the best and that they should be happy to settle for second or third best.

    Why else would so many people support the appointment of Mogoeng Mogoeng, whom no person – as far as I am aware – has stated is the best person for the job of Chief Justice? Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the on-going propagation of white superiority by white racists, that they do not believe that, fellow South Africans, they deserve the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke?”

    Weeell, I’d venture to say, this is also exactly the reason why people keep on voting for the ANC en masse, despite the fact that since 1994 the ANC has bedeviled the people by not providing them with adequate services, homes and jobs, but instead, is stealing from the people (rich and poor alike) and enriching the Top Brass in the party. Seventeen years since democracy, and people still don’t seem to grasp that one does not need to keep on supporting a party just because it played a major role in the revolution, but that one can actually call the government to book at the polls (a right which all people did not have under apartheid). Whatever. It’s taken Libyians 42 years to eventually decide that a change in regime might be wholesome, despite the fact that the regime delivered them from evil.

    On the Mogoeng Mogoeng issue – the sentiment that Zuma should have consulted before ‘nominating’ his choice of candidate, iis one that I have exprtessed from the outset under one of the earlier posts on this issue. This is also what I said when Ngcobo was appointed above Moseneke, where the President followed virtually the same procedure. When the JSC and everyone else have wiped the shit from their eyes, the Pres has already decided who to appoint – and the belated ‘consultations’ meant nothing at all. The Pres got away with it once – which is why he has done it again. … And so the Constitution and the rule of law is continuously flouted – and each time one criticises the Pres or the regime for doing that, one gets the same, consistent, response, namely one is either racist or counter-revolutionary, or both, and one does not respect the Pres or the regime. … Shouldn’t FULL and the likes approach the CC with an application, AGAIN?!

    It would appear as if the regime (and, specifically the Pres) has no respect at all for the Constitution and the law. And, if they do get whipped in court, they just do as they please or, worse still, change the Constitution and the law. This is even evident in the regime’s approach when brothers of the revolution are being brought to book in terms of international criminal law – viz RSA’s stance vis-a-vis Al Bashir of Sudan and Brother Leader Ghadafi of Libya (not even to speak about the Old Boy’s Club approach towards Bob Mugabe and Zim).

    You know, if this state of affairs is allowed to continue unchallenged, it will be less than a decade before we find that the rule of law has been totally flushed down the drain – and the spectre of the Inquisition is looming in the shadows.

  • Mikhail Dworkin Fassbinder

    @ Mzo

    Mzo is right.

    Once a judge, always a judge, I say.

    That is why it its hypocritical for a High Court judge who is being elevated to the SCA or the CC to be interviewed all over again by the JSC. After all, if he is good enough sit in one judicial office, he is good enough to sit in any other!

  • Cicero

    @ Kleinschmidt

    I take it you’re gay. Don’t worry, they may find a cure one day.

    I can’t believe someone actually has the time to research pseudonyms hoping for some insight.

    Perhaps you should read Cicero’s biography before you make a fool of yourself (there’s a great one by Robert Harris called Imperium).

    Cicero was a lawyer, and was acting for Gaius Verres, the aegile of Rome at the time of the land reforms. Many of his private letters, freely available, showed he actually supported reform.

    Fool.

    Stay away from Wikipedia my friend and try and get some real knowledge.

  • Mikhail Dworkin Fassbinder

    @ Dr Mouse

    ” … RSA’s stance vis-a-vis Al Bashir of Sudan and Brother Leader Ghadafi of Libya”

    Speaking of whom, I say it is a disgrace that a man whom Mandela hailed a “great African revolutionary” should have been driven out by liberal European aggressors. Had the ANCYL been running our foreign policy, there would instead have been an “African solution for an African problem.”

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mzo
    August 23, 2011 at 10:34 am

    Hey Mzo,

    Interesting piece.

    Secondly, this regrettably amounts to questioning the judge’s allegiance to the oath of office which he took, which demands that he not allow his personal beliefs to interfere with his work.

    Hmmm!

    Perhaps someone should whisper in Mzo Tshaka’s ear that Moseneke has been kept away from the high office because of TEN WORDS he said at a private party “It’s not what the ANC wants or what the delegates want”.

    This is despite “Having listened to Justice Moseneke’s account of his speech and the context of his remarks, the ANC accepts that no ill was intended”

    Contrast that with belonging to some 419-scam type cult that uses ‘snake oil’ to cure people from TB, homosexuality, bunions, baldness, evil-eyes, bad breath, cancer and the like!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Oop1 – that’s 11 words, maybe 12 if JR insists.

  • anton kleinschmidt

    In the unlikely event that anyone may be interested in this type of “real knowledge”, the Imperium Trilogy by Robert Harris…….is a novel more commonly known as a work of historical FICTION.

  • jeffman

    Hey Maggs, I can’t agree with you, as it is such a violent and barbaric act. It involves a deliberate intention to inflict harm and terror. It involves depriving someone of their freedom by binding them up first , then connecting them to a vehicle etc. It is quite different to a physical assault arising out of say a domestic arguement. It has way too many aggravating features to warrant only a fine IMO. Plus the size of the fine is so negligible. This can surely not be equated with a speeding offence which merits an equal punishment. Someone that can do that to his own wife has serious psychopathic issues, and needs help.

  • Mikhail Dworkin Fassbinder

    @ JR

    “Cicero was a lawyer, and was acting for Gaius Verres, the aegile of Rome…”

    Being a distinguished Roman law scholar myself, I was puzzled by your reference to Verres as an “aegile.” I am only familiar with the office of “Aedile.” Does the great scholar Robert Harris whom you cite shed any light on the duties of an “aegile”?

  • Chris (not the right wing guy!)

    Maggs Naidu – maggsnaidu@hotmail.com says:
    August 23, 2011 at 9:14 am

    If it was the JP of Gauteng I would have supported the nomination. If the CC becomes our new apex court, experience as a judge may become more important than expertice spesifically in the field of constitutional law. All those who argue that if Chaskalson P (as he was then) could appointed without experience as a judge seems to conveniently forget that he was not CJ, but P at the time of his appointment.

  • Maggs Naidu – maggsnaidu@hotmail.com

    jeffman
    August 23, 2011 at 11:26 am

    Hey Jeffman,

    Maybe. But I am not sure that judges consistently rule without some or other blight. If all we have to go on is one judgement which may have treated a perpetrator on the side of leniency in which he was not sitting alone then it may be that we’re scraping the bottom of the barrel to come up with something anti the guy. See http://constitutionallyspeaking.co.za/justice-mogoengs-judgment-in-partner-abuse-case/

  • Maggs Naidu – maggsnaidu@hotmail.com

    Chris (not the right wing guy!)
    August 23, 2011 at 11:42 am

    Hey Right Wing Guy,

    “If it was the JP of Gauteng I would have supported the nomination.”

    LOL – maybe it was. I could tell you but then I would have to kill you. :P

    Re Chaskalson – eish, people are trying to get the question to fit the answer.

  • Gwebecimele

    May be its time for the JSC and Magistrates Commission to circulate a compulsory questionnaire to all judges and Magistrates and ask them about their religion, sexual lifestyles, organizational membership, economic views, political affiliation, previous judgements, case management etc. In the meantime someone must decide the scorecard and what makes one fail.

    Last week I saw a case in WC that has been postponed about 35 times and that should be a dismissable offence.

  • Chris (not the right wing guy!)

    Gwebecimele says:
    August 23, 2011 at 11:51 am

    Oh yes, let all those with a religion, sexual lifestyle, organizational membership, economic views or political affiliation be impeached immediately!

  • Mikhail Dworkin Fassbinder

    @ Gwebe

    “May be its time for the JSC and Magistrates Commission to circulate a compulsory questionnaire to all judges and Magistrates”

    This is not a bad idea. But these details should not distract us from what is overwhelmingly the most important consideration: RACE. I say it is unacceptable that non-Africans continue to be appointed as judges, when Africans are still grossly under represented, and there are many African lawyers ready willing and able to take the bench.

  • Pierre de Vos

    Donovan, see the email written by Dumisa Ntsebeza for an example of a defence of the nominee based on his race. Some posters on Blogs here and elswehere (and comments on my Twitter account) has also suggested that we should not criticise the nominee because that would mean we are undermining a black candidate which is not allowed.

  • anton kleinschmidt
  • Cicero

    @ Mikhail Dworkin Fassbinder

    Typo. I see you make them often as well. This blog has no way of correcting it unless one wants to be pedantic and make another post correcting oneself.
    Anyone with half a brain will realise it’s a typo.

  • RickySA

    @ Mzo, you are also yourself guilty of some economy when it comes to the truth: In your piece, you refer the Le Roux case but you fail to mention that the main bone of contention was that Mogoeng Mogoeng failed to give a reason for his dissent – as is standard and necessary to secure the accontability of judges. So, Mze, nobody expects a judge to invent a disagreement (as ask in your piece) – but if they disagree, they should have the guts and the intellectual capacity to explain why.

  • RickySA

    And, please, posters, why the gutter language and rudeness (I am thinking in particular of you, Cicero, but there are others as well)? If you cannot make your point in a decent and sober way without resorting to insults etc, maybe you should write your views on piece of note paper rathern than on blog.

  • Cicero

    @ RickSA

    Politics is not for the faint of heart. If you can’t stand the heat in the kitchen, then fuck off. If you don’t like my language, then don’t read my posts. Simple.
    Really rather infantile to try and impose your own sense of morality on others.
    Are you the appointed blog policeman ? If not, shutup.

    I’ll write any fucking way I like unless Pierre (the blog owner i.e not you) specifically requests me to stop.

    Now piss off and go help some old lady cross a sreet.

  • Mzo

    RickySA says: August 23, 2011 at 13:39 pm

    So, in your view their failure to do so (give written reasons for their dissent)disqualifies them to be appointed as a Chief Justice? If your answer is in the affirmative, I would love to know what your source is!!

  • Tatera

    Gwebecimele, from the previous of the Prof your response is still outstanding!!!!

    Tatera says: August 23, 2011 at 14:17 pm
    Gwebecimele, we are still waiting for your reply to the Prof’s post of August 22, 2011 at 15:07 pm

    In case you missed by “accident” it is repeated below.
    Gwebecimele, with respect you are talking utter rubbish. First you make a false statement that people like myself always criticise black judges. Please provide support for this defamatory statement: was it my statements in which I praised Ngcobo when he was appointed? Or when I parised Langa when he was appointed? Or when I criticised Judge Brand when he authored the Dey judgment? Get your facts straight before making false statements.
    Second, I cannot believe that some people have been so infected by the apartheid mindset that they are now arguing that we should shut up and not make any comments about any decisions of our President and that we should be happy with second, third, fourth or last best as long as the cghoice is made for us by a politician. Have we no self-respect that we are now endorsing mediocrity because we believe – under the influence of apartheid ideology – that emdiocrity is all that we deserve. I for one reject that kind of mindset. Black and white South Africans deserve the best – in this case it would be Moseneke

  • Brett Nortje

    Maggs Naidu – maggsnaidu@hotmail.com says:
    August 23, 2011 at 10:03 am

    WHat are you afraid of, Old Maggs?

    That Judge Mogoeng declares your racial mobilisation against farmers hate-speech?

  • RickySA

    Dear Mzo,

    I did not write that the failure to give written reasons for a dissent disqualifies someone from being appointed Chief Justice (although I do agree with people like Eusebius McKaiser and Pierre de Vos that it is extremely worrying when a judge does not explain why he is in favour of a specific result and that something like that would weigh negatively when judging somebody’s suitability of any judicial office). My point was that in your piece you criticise certain commentators for being “economic with the facts” for failing to give the full picture concerning the Dube matter etc while you yourself are committing the exact same sin when you fail to mention that the prime issue (or at least an issue on par with the suspected homophobia) for most of the commentators concerning the Le Roux case was the lack of a dissent. And that it is somewhat disingenuous of you to write “What is he supposed to do when he agrees with a judgment of a colleague, dissent just so that he can write his own judgment” when most commentators would be happy if he had just written a dissent when he actually did disagree with his colleagues.

    Hope this is clear.

    Cicero, I do not see the equation between politics and saying “fuck” and calling people idiots etc. Of course, persons like Floyd Shivambu seem to have the same view as you. On the other hand, the truly great politicians of any era and place, including your name sake in ancient Rome, could and can get their points across while still going for the ball rather than the man and while keeping the foul language to a minimum. But, by all means, if it makes you feel good to write in this simple and primitive manner, please continue.

  • Mikhail Dworkin Fassbinder

    @ Cicero

    “Are you the appointed blog policeman ?”

    Cicero aka JR etc.

    FYI, I have been officially designated as blog policeman. As such, I demand that you cease:

    1. Shouting “FUCK” all the time.

    2. Making up all kinds of crap about Roman orators.

    Thanks a lot.

  • Heywood Jubleauxme

    Pierre

    In view of all the talk about expropriation, nationalisation, a media appeals tribunal, the secrecy bill, etc – which progressive values enshrined in the Constitution do Cosatu and the SACP embrace exactly?

    Or do I misinterpret your: “If one happens to embrace the progressive values enshrined in the Constitution and if one is honest with oneself and not overtly defensive, one would have to admit that one could not – with a clear conscience – support such an appointment. (Cosatu and the SACP should therefore really be deeply worried about the nomination of Mogoeng as Chief Justice.)”?

    I share the opinion of Anton Kleinschmidt. Every blog where you criticise the ANC has a built-in appeasement factor comprising some concomitant criticism of whites in general and the Afrikaner in particular.

    Do you really want to be this Boere-Pocahontas?

  • Gwebecimele

    Well said Mzo and thanks for taking us back to core of this issue and as expected there will be no response to your core argument.

  • Mzo

    RickySA says: August 23, 2011 at 15:13 pm

    Firstly, let me admit that perhaps I ought to have dealt with that issue as well. However, my statement: “What is he supposed to do when he agrees with a judgment of a colleague, dissent just so that he can write his own judgment” was not really based on his failure to write a dissenting judgment but more directed at Adv Hoffman’s comment: “He was part of the minority in Glenister (only two of whom survive since the retirement of Ngcobo CJ and the return of Brand AJ to the SCA) but in that case the minority judgement was that of the retired Chief Justice, in which he concurred, AS IS EVIDENTLY HIS HABIT” (my emphasis).

    It was because I took issue with the statement that a judge has a “HABIT” of concurring, especially in the context that was said – suggesting that he just concurs out of “habit” and not base on any legal foundation.

    It was in this context that I became “economical with the facts”, as you would have it.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Brett Nortje
    August 23, 2011 at 15:07 pm

    Hey Goofy,

    “WHat are you afraid of, Old Maggs?”

    I’m afraid of very few things.

    I’m afraid of White people – see how PdV has been cannibalized for holding views that White people don’t like.

    I’m also afraid of judges who use anointing oil to save the world.

    Why do you ask?

  • RickySA

    Thanks, Mzo, for the clarification. I have gone through all of your document and here are my views:

    Mzo’s reference to the McBride case is a bit primitive since it fails to touch upon what was actually the problem for many. Well, the issue for many with Mogoeng Mogoeng’s dissent was the focus on dignity and placing in on the same or even a higher level as freedom of expression. This is worrying to many people, including myself, as it would seem not to be in line with normal human rights thinking.

    I already mentioned how Mzo fails to mention the main issue with Mogoeng Mogoeng’s dissent in the Le Roux case, namely that he – contrary to standard and expectations – did not give any reasons.

    With respect to the Dube case, it would maybe be relevant to look at the words of the SCA, something that Mzo fails to do.

    Of course, the issues raised should be of concern also for appointment to a court, in particular the CC. But the Le Roux case and the McBride case came after the appointment to the CC. And the Dube case was mentioned during the hearing for Mogoeng’s appointment.

    Mzo also seem to indicate that it is as easy to remove a judge as to appoint one (his views about what makes him a problematic CJ also makes him a problematic judge). But this is not the case (as I am sure Mzo knows) – once a judge has been appointed, it is almost impossible to get rid of him. His views would also mean that since John Hlophe remains JP of the Western Cape Court and he has not been removed, there is no reason why Hlophe should not be CJ – clearly an erroneous argument. Why is it wrong, Mzo, not to want Mogoeng to become CJ because he has not done a sterling job as CC judge?

    Of course, you can be a Christian and on the bench – but I wonder what Mzo would think of a CJH who believes in the strict adherence to Sharia law?

    The point about Chaskalson not having made any judgments is disingenuous, to say the least, since Chaskalson had not been a judge for 14 years when appointed. So he had to be judged based on his other experiences. Also, it could be argued that to make a clean slate from Aparthid Era, it would be difficult to appoint a sitting judge – but today we have several judges without a past as apartheid judges.

    I already argued why the sentence about dissenting just to make an argument is nonsensical in light of the Le Roux case.

    Of course, “once a person is appointed as a judge of the CC such a person can be appointed as a Chief Justice”. But that does not mean that every person on the CC is the best or even among the ten best persons for the job as CC. I do not think that anyone as questioned Zuma’s right to ultimately appoint Mogoeng Mogoeng.

    And the last sentence, “If the likes of Adv Hoffman SC and Prof de Vos seriously hold the views they have expressed on this issue, I challenge them to approach the Judicial Service Commission and request that Judge Mogoeng Mogoeng be removed as a judge. If they fail to do so, it will only show the hypocrisy in their arguments” is clearly misguided as stated above: You can only remove judges for serious misconduct etc. But that does not mean that you cannot set the bar higher for appointments.

    By the way, Mzo, what do you think about the SAR 2000 fine for violence? I think it is appalling.

  • zoo keeper

    Gwebe and Mzo

    I like your points.

    Everyone is concerned with his lack of reasoning for stating that it is offensive to call someone “gay”. Maybe he thought he was stating the obvious because a whole lot of SA would feel offended if called “gay”. It is a fact so deal with it.

    Personally I think the bar for offense should be really high though and being called gay wouldn’t make it over the hedge in my book.

    Personally I really liked to reference to your argument for sound administrative skills (if this is true about MM).

    For me the best juror should not necessarily be CJ, but the best administrator.

    What the intelligentsia have no idea about is that justice is 99% admin and 1 % court time and judgments. The administration of courts is shocking and that is where justice fails.

    The infrasructure and systems must be fixed so that courts run as efficiently as possible.

    Like Bismark said: if you like sausages and justice then don’t watch either of them being made (sic).

    If MM can fix the administration of justice then I’m right behind MM. That is far more important than whether or not he likes gays or is a better juror than Moseneke. Besides, so what if he’s conservative, don’t you all think it would be great to have a variety of viewpoints instead of the banal politically correct stuff?

    He’s also only one of eleven, not like the CJ has the power to direct judgments anyway now?

    If it is all about being the best juror then perhaps that should be a second title voted for by the country’s bench?

    Therefore the best administrator should be CJ and the best juror should be someone called “Constitutional Justice”, which is held for 5 years, or something like that. And he/she gets the middle seat and some different robes so he/she can feel special. If the candidate is both then well done to that special person.

  • Maggs Naidu – maggsnaidu@hotmail.com

    zoo keeper
    August 23, 2011 at 17:47 pm

    Hey ZooKy,

    “Maybe he thought he was stating the obvious because a whole lot of SA would feel offended if called ‘gay’”.

    That’s a rather odd statement – the kind we expect from our ambassador to Uganda.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Guess who is a “black snake in the grass deployed by white capital to sow discord among black people” and who ‘would have been necklaced in the 80s’???

    Miyeni said the ANC’s loyalty to whites seemed to be unwavering.

    “Your loyalty to black people, on the other hand, extends as far as the white media dictate.

    http://www.news24.com/SouthAfrica/Politics/ANC-favours-whites-Eric-Miyeni-20110823

  • Pierre de Vos

    I am delighted that now we are having a real and reasoned debate about the issue. Thanks Mzo for giving your views and for RickySA for responding accordingly. Although I disagree with many of Mzo’s points, and think others are based on factual misstatements as pointed out by Ricky, at last we have somebody making a case. My response to Mzo is as follows:

    I think your article demonstrate the first point of my post. You are not arguing that the appointment is the best one or even a good one, but that the nominee possesses the minimum requirements to be a judge in SA and that criticism of the nomination is therefore hypocritical. My view is that by aiming so low you are selling yourself and the rest of us short. Should the debate not rather be whether the nomination is wise; whether the nominee has the attributes we would be proud of in a Chief Justice; whether the nominee’s views on gender, say, qualifies him to be both the head of the CC and the SA judiciary and to represent SA and its Constitution nationally and internationally.

    Example: our Constitution says that we the NA may select every citizen who is qualified to vote for the National Assembly to become President, except: unrehabilitated insolvents; anyone declared to be of unsound mind by a court of the Republic; or anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine, either in the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic.

    In your view this would mean that no one should criticise the selection of, say, Dan Rood or Steve Hofmeyer as President because they both meet minimum criteria. I for one, would expect more from my President – as I do from my Chief Justice…..

  • Mzo

    RickySA says: August 23, 2011 at 17:43 pm

    Thank you for the insightful comments. However, you seem to have missed the whole point of my article. I did not seek to answer the criticisms levelled against the CJ nominee.

    My point was quite simply really, the issues being raised (even if we were to assume that they are indefensible) point to him being unsuitable for a judicial position, as a judge. Period.

    The concerns raised have very little to do with his abiility (or lack thereof) to be a Chief Justice. To illustrate my point better perhaps, if the concerns were that, for example, during his time as a JP the North West High Court was in shambles, judgments not being handed etc, I would consider those to be issues relevant to a question of whether he is fit to be the Head of the Court or not!!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Pierre de Vos
    August 23, 2011 at 19:00 pm

    Hey PdV,

    “I for one, would expect more from my President – as I do from my Chief Justice…..”

    ‘[More] from my Chief Justice’ unpacked would be a good starting point for the JSC interview.

    Indulge us a bit – what should the JSC ideally ask the nominee?

  • Mzo

    Pierre de Vos says: August 23, 2011 at 19:00 pm

    Prof, see my recent response to RickySA (at 19:09).

    My issue with some of the commentary on this (including yours and Adv Hoffman SC) is that the sugestion seems to be that he’s OK as an ordinary judge in the CC but he’s not OK for a CJ position. That in my view would be selling all of us short.

  • Chris (Not the right wing guy)

    Mzo
    August 23, 2011 at 19:14 pm

    Did any of the commentators suggest that he is OK as an ordinary judge?

  • John Roberts

    @ Mzo

    Thanks for bringing some intelligence to the debate.
    And for showing us all what a sensasionalist short-sighted bigot Meneer de Vos is.

    This is after all, at dinner parties all over SA, referred to as the Huisgenoot of blogs. ( But not at white braais. The only thing whites do at braais is …. well ask Pierre, he knows it all)

  • RickySA

    Thanks, Mzo, for bringing something new to the debate.

    In my view the issues raised, not least the revelation about his judgment in the case of the women dragged after a car, makes Mogoeng Mogoeng unsuited to be CC judge and, as such, one of the ultimate 11 (12, if you count the President who is also supposed to protect and uphold the Constitution) guardians of the Constitution. And I believe that many of the commentators think likewise. But, as you know, it is not enough that a person have “unconstitutional” views or have made errors of judgment to remove such a person from the bench as judges are (rightly in my view) protected from being fired in most cases. So, even if I and others are unfomfortable with MM as CC judge (and many expressed surprise of his appointment in 2009), we cannot really do anything about it. And that makes your argument a bit pointless.

    On the other hand, we can try to convince the President to think again. But, of course, nothing will happen because at this stage it is more important for the President not to safe face than to have the best possible CJ.

    I see your point about having administrative and managerial skills as important. But being a leader is – in my view – more than that, especially in a position as symbolical as that of a CJ. It is about leading by example, about being the judge writing the best decisions, being somebody that all can look up to etc. And in that role MM would seem to be lacking.

  • Brett Nortje

    Mzo says:
    August 23, 2011 at 19:14 pm

    Well argued, Mzo!

  • Cicero

    @ Mikhail Dworkin Fassbinder

    I do concur that Robert Harris is no great scholar but he certainly holds his own as a researcher.

    I could have referred to the 29 volumes of Cicero’s speeches in the Loeb Classical Library, or Sir William Smith or even T. Robert S. Broughton’s The Magistrates of the Roman Republic Vol ll, 99BC-31BC recently published by the American Philological Association.

    But I was talking to Kleinschmidt who regards Wikipeadia as a great source.
    So I didn’t.

  • Brett Nortje

    Mzo says:
    August 23, 2011 at 17:27 pm

    Mzo, I think people are adding 2 + 2.

    M M’s habit is to concur (when he does hand in a judgement) + M M does not justify his controversial rulings with reasons = ???

  • Gwebecimele
  • Gwebecimele

    Courts in Swaziland, Africa’s last absolute monarchy, have been paralysed for three weeks after lawyers began an indefinite strike calling for the removal of Chief Justice Michael Ramodibedi.

    They say the boycott will continue until the Judicial Services Commission agrees to investigate a dossier of complaints they have compiled on the chief justice, including allegations of sexual and professional misconduct.

    The commission, which is headed by Ramodibedi, has so far refused

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    August 23, 2011 at 10:45 am

    Dworky,

    “After all, if he is good enough sit in one judicial office, he is good enough to sit in any other!”

    That about sums it up.

    No amount of noise will change the nomination. If anything Zuma is more than likely to dig in his heels – people can stand on their elbows and whistle through their ears, M-squared will be CJ (unless something not already in public space gets unearthed).

    JR, as much as I would like to disagree with him, has a point when he says that this is little more than dinner-table conversations. So far the effort to undermine and humiliate M-squared may have gained ground – but nothing material has emerged that will cause a change.

  • ewald

    @ Transcript of JSC interview with Justice Mogoeng 2009 in Seminar Room:

    OMW..If this wasn’t sad it would’ve been funny. Amongst others.. MM: …” you’ve got to clothe the Chief Justice legally with the authority over all judicial officers so that he becomes our judicial father.” Our judicial WHAT? Someone deliver us from evil. Clearly Gatsha Buthelezi was his role model in public rambling. How did he get to the CC with these kind of responses? Were the other candidates WORSE?

    Prof, is there a link to the transcripts of the other candidates? Thanks.

  • John Roberts

    @ Ewald

    “How did he get to the CC with these kind of responses?”

    We have a “President” with a Std 3 education. Anything is possible in Africa.

  • RickySA

    John Roberts, in all fairness to the President, the JSC actually decided to put Mogoeng Mogoeng on the shortlist for the President (who – unlike for the CJ – does not initiate the process for ordinary CC judges but has to choose among the candidates nominated by the JSC – I believe that seven were nominated for four posts in accordance with applicable law). I guess that the President could reasonably assume that all the shortlisted candidates were suitable – and that they were the best of bunch.

  • John Roberts

    “Many lives could have been saved if the African Union had been allowed to carry out its Libya initiatives, President Jacob Zuma said in Cape Town”

    WTF ? Where was his concern when Mbeki was killing 2 million black South Africans through his revolutionary discovery of the AIDS “syndrome”.

    Seriously, would someone with maybe a Std. 4 education do a better job ?

  • Gwebecimele

    Zuma must crack the whip. Children are suffering whilst officials are fighting to keep their jobs.

    http://www.timeslive.co.za/politics/2011/08/24/eastern-cape-defies-zuma

  • marco polo

    Getting back to the subject of “reasoned debate”, Dr Dan Roodt has penned (keyboarded?) a scathing attack on Dr De Vos, “Afrikaners bestaan nie? – ope brief aan Pierre de Vos”:
    http://www.praag.co.za/dan-roodt-magazine-178/10118-afrikaners-bestaan-nie-ope-brief-aan-pierre-de-vos.html

    And if that wasn’t enough on one website, his wingman, Anton Barnard, also laid into “onse Pierre” in “Die post-1994-dubbeldinkery”:
    http://www.praag.co.za/anton-barnard-magazine-177/10121-die-post-1994-dubbeldinkery.html

    Alas, those of you “Rooinekke” who did not enjoy the privilege of a Christian National Education may not be able to partake in these delights without someone to translate them for you.

  • John Roberts

    @ Marco Polo

    Dan Roodt is a lunatic in my opinion.
    You can’t trust the Afrikaners ….. they got us into this mess in the first place … twisting the Bible to suit their needs.

    We need to distinguish between between whites and Afrikaners. They are not the same thing.

    I’m prepared to give the ANC the benefit of the doubt at the moment.

    But I’ll never trust an Afrikaner.

  • John Roberts

    @ Pierre

    “Many men believe that women “provoke” men into raping them by wearing short skirts or high heels. Other men believe women “provoke” men to assault them by not obeying the orders of their husbands or boyfriends or by flirting with other men”

    You are very quick to attach racial stereotypes to whites in a negative connotation but here you conveniently leave out the racial group. I challenge you to find a statistically relevant number of white men who fall into this group. This is not something white south african men get up to.
    I don’t like Dan Roodt but he is correct about you and the other sycophantic jannie jammergats.