An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
President Jacob Zuma welcomes the debate that has ensued following his nomination of Justice Mogoeng Mogoeng as his preferred candidate for the position of Chief Justice of the Republic of South Africa.
However there are disappointing inaccuracies and distortions in the responses and commentary on the nomination of Justice Mogoeng Mogoeng. These need to be addressed without delay to enable the debate to continue based on factual information.
The debate must be balanced and be within the rules of common decency. It must not be designed to demean the person of, and question the integrity of the President’s nominee, Justice Mogoeng.
Who qualifies for appointment?
In terms of section 174(1) of the Constitution of the Republic of South Africa, 1996, any appropriately qualified woman or man who is a fit and proper person, and is a South African citizen, may be appointed as a judicial officer.
In addition, at all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court. The four must have been judges and not judges of the Constitutional Court per se. Therefore, Constitutional Court experience is not a criterion for appointment. By implication it is not necessary that persons appointed as Constitutional Court judges should have been judges before appointment. They could have been legal academics, advocates, attorneys or directors of NGO’s. This has happened before, looking at the experience of the country’s post-apartheid Chief Justices, some of whom had no experience as judges, but who acquitted themselves in a distinguished manner.
EXPERIENCE OF PREVIOUS CHIEF JUSTICES OF THE REPUBLIC
Former Chief Justice Arthur Chaskalson
Former Chief Justice Arthur Chaskalson was a human rights lawyer and a director of the Legal Resources Centre (LRC) when he was appointed as the First President of the Constitutional Court in 1994. He was the LRC’s Director from November 1978 until September 1993.
Former Chief Justice Pius Langa
Former Chief Justice Pius Langa was an Advocate SC when he was appointed as a judge of the Constitutional Court in 1994. He was appointed with 10 others as judges when the Constitutional Court was established in 1994. He became Deputy Chief Justice in 2001, and Chief Justice in 2005. He retired in October 2009.
Therefore, at the time of their appointment, both Former Chief Justices Chaskalson and Langa were not judges.
Former Chief Justice Sandile Ngcobo
Former Chief Justice Sandile Ngcobo was first appointed as a Judge in 1996. He served as Western Cape High Court Judge, Labour Appeal Court judge, Acting Judge President , and a Judge of the Truth and Reconciliation Commission Amnesty Committee. He was later appointed to the Constitutional Court in 1999.
Deputy Chief Justice Dikgang Moseneke
The country’s Deputy Chief Justice, Honourable Dikgang Moseneke became a Judge of the High Court in November 2001 and was appointed to the Constitutional Court a few days later.
Other Honourable Justices of the Concourt
Justice Mogoeng has been a Judge since 1997 and is far senior in terms of judicial experience than most judges who are in the Constitutional Court currently, with the exception of Justice Johan Froneman who was appointed as a Judge in 1994, and Justice Edwin Cameron who was appointed as a Judge in 1995.
Justice Mogoeng was appointed a judge of the North West High Court in June 1997, as Judge of the Labour Appeal Court in April 2000 and in October 2002 he became the Judge President of the North West High Court. He was appointed to the Constitutional Court in 2009. Justice Mogoeng is the only Judge in the Concourt who has been a leader of a Court.
Justice Bess Nkabinde was appointed first as acting judge and later as judge of the High Court Bophuthatswana Provincial Division in November 1999. Justice Chris Jafta was appointed as a judge in November 1999, Justice Khampepe was appointed in 2000 as a judge, Justice Thembile Skweyiya in 2001, while Justice Zak Yacoob became a Constitutional Court Judge in 1998, while Justice Johann van der Westhuizen was appointed as a judge in 1999.
The facts regarding suitability and experience should not be disregarded in the debate.
The Presidency reiterates its respect and high regard for the Judiciary and for the Constitutional Court as an arbiter in disputes in our country.
The debate on the appointment of the new Chief Justice should not impugn the dignity of the judiciary and the highest court in the land.
Issued by Mac Maharaj, Spokesperson to the President
Enquiries: Zanele Mngadi on 0823301148.
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