September 1 2011 at 10:42

On the right day and with the right candidate, members of the Judicial Service Commission can be ruthless.  Remembering some past interviews when sitting judges, up for promotion, were reduced to tears by incessant hectoring, I have been imagining a scenario in which commissioners discover that a candidate they are about to interview is a member of an organisation with unusual beliefs.

The nominee sits down and the questions begin. They ask about this religious, cultural or political body and about the views it holds. Is it true, they want to know, that the candidate is part of a group that believes women are inferior to men, that the foundational texts of this group require women to recognise and accept the subordinate position to which they have been eternally assigned and refrain from aspiring to leadership positions in the family or public life?

 The next candidate has a similar problem. He belongs to an organisation – a quasi church, actually – that believes black people are not truly human; they are divinely ordained to be mere hewers of wood and drawers of water. As for the third, his role as a leading member of an organisation working for the reinstatement of corporal punishment and the death penalty comes in for some close scrutiny, while a fourth hopeful is grilled about the views of a cultural group to which he belongs that all Muslims are after world power and embody the antichrist.

There would be an uproar if any of these candidates was recommended for appointment as a judge, let alone promoted to a more senior position on the Bench. You wouldn’t even need to get as far as the candidate’s personal or legal qualifications, or his years of experience, to know that it was all over once the issue of the beliefs of his organisation were raised.

The views with which these hypothetical candidates aligned themselves are in blatant conflict with the values of the constitution; a judge, who swears to defend the guarantees in the bill of rights, cannot uphold the law from the Bench and defile it after hours. You can’t preach equality in your judicial robes and subordination when you put on your priestly gown.

Now that a clearer picture is emerging of the career history, values and jurisprudence of President Jacob Zuma’s preferred candidate for chief justice, the public will be watching with great interest when the commission interviews Justice Mogoeng Mogoeng this weekend. Unlike the examples above, there’s nothing theoretical about the problems Justice Mogoeng’s nomination poses for South Africa in several particularly contentious areas.

It is always possible that leading members of the commission will try to cut discussion short to ensure that Zuma’s man is spared any rigorous debate. After all, one influential member, Dumisa Ntsebeza SC, has made it clear he believes it proper to support the president’s man – unless he is “patently unfit” – regardless of any personal views about his shortcomings or whether someone else would be better. 

Nevertheless, we are entitled to expect the commission will do its job and that we will see more than a polite but pointless tea-party.  Suppose, therefore, that commissioners conduct the kind of rigorous inquiry for which they were appointed. Then suppose that at the end of it they recommend Justice Mogoeng for appointment. Such a recommendation would tell us a great deal.

We would know the commission has little respect for freedom of expression, for the candidate’s background indicates his eccentric, isolated views on the kind of speech protected by the constitution. We would know commissioners put little store on the constitutional guarantee of equality, regardless of sexual orientation, for the candidate’s background indicates his views. And we would know for sure that we should not look to the commission for judicial appointments that take violence against women seriously, for the candidate’s history speaks volumes on this issue.

In short, we would know that, in paying lip service to the constitution themselves, the commissioners have failed the public.

The big question is whether members believe Justice Mogoeng’s views, as expressed through his religious and legal judgments – as well as his non-judgments – make him patently unfit. Ultimately, this is as much a test of the commission’s suitability as it is of the judge’s.


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