THE judiciary has adopted a programme of action to increase the efficiency of the courts and asserted its institutional independence after an "honest and brutal" self-examination of the bench by senior judges at a recent retreat.
Increasing access to the courts through more efficient court administration is Chief Justice Mogoeng Mogoeng’s particular passion and it is widely hoped this will be the signature of his incumbency as chief justice.
"The leadership of the judiciary emerged out of its retreat last weekend determined to make a decisive break with the underperformance of the courts over the years," Justice Mogoeng’s office said in a statement yesterday.
The programme of action had been adopted "for immediate, medium and long-term implementation".
Justice Mogoeng’s spokeswoman, Lulama Luti, said that the weekend’s strategic planning session was a "build-on" to the access to justice conference organised by former chief justice Sandile Ngcobo in July last year. It was the first time Justice Mogoeng was able to meet the heads of courts to thrash out the practical implementation of the resolutions taken at that conference.
At the retreat, attended by "all senior levels of the judiciary in the country", judicial leaders underwent "honest and brutal self-introspection and examined the challenges it (judiciary) is facing", Justice Mogoeng’s office said.
Among the key decisions taken was the adoption, "and immediate implementation", of a judicial case management system involving early intervention by a judge or magistrate to dictate the pace of litigation in order to prevent postponements and case backlogs.
The judges made a "renewed commitment" to the overall pursuit of excellence in administering and dispensing "quality justice to all" and ensuring the institutional independence of the judiciary, through a judiciary-led court administration, and the enhancement of stakeholder relations and more community outreach, said the statement.
Justice Mogoeng said the judiciary would "work tirelessly to ensure that the situation in our courts is turned around and we have set ourselves to achieve a great deal by this time next year". A report setting out all the resolutions would be released soon, Ms Luti said.
Source: Business Day
Showing posts with label Mogoeng Mogoeng. Show all posts
Showing posts with label Mogoeng Mogoeng. Show all posts
Monday, August 20, 2012
Thursday, February 16, 2012
Judges opposed to spouse, children disclosure
SENIOR judges and leaders in the judiciary said yesterday they were never against calls for judges to disclose their financial and other interests, but remained opposed to the disclosure of the financial interests of their family members, especially their spouses and children. The heads of court, who are some of the country’s most senior judges, were responding to media reports in which several lawyers’ associations and other interested parties in the legal and academic fraternity have voiced support for calls on judges to disclose their financial interests.
While MPs’ financial interests are open to the public, the heads of court want the information on their financial interests to be confidential. The heads of court comprise of Chief Justice Mogoeng Mogoeng; the president of the Supreme Court of Appeal, Lex Mpati, and his deputy, Kenneth Mthiyane; and the judges president of the high courts and specialist courts. Following a number of comments by legal bodies stemming from oral submissions by a delegation of judges to the parliamentary ad hoc joint committee on the code of judicial conduct on disclosure of interests last month, the heads of court said they felt it was necessary to set the record straight.
The judges said at the end of a consultative meeting in Cape Town last Friday that they had never been opposed to calls for disclosure, subject to the issue of confidentiality, on which they hoped to have further discussions with the relevant authority. They said their main and unequivocal opposition was to the current provisions’ call for disclosure of the financial interests of judges’ family members. "Quite frankly, we do not see what public interest would be served by the disclosure of spouses’, partners’ and children’s financial interests as the provisions currently call for. We vehemently oppose wholesale disclosures in so far as our spouses, partners and children are concerned. "However, we welcome wholeheartedly, as we have always done, calls for judges to register their financial and other registrable interests, especially in so far as it would help prevent any possible corruption or perception thereof," the heads of court said.
The judges said they would also welcome any investigation of any retired or sitting judges and their family members suspected of any improper or other misconduct that could bring the judiciary into disrepute.
Last week, the Black Lawyers Association said as custodians of the interpretation and application of the constitution, which was unequivocal on issues of transparency and accountability by all arms of government, the judiciary had a duty to lead on transparency.
Earlier this month, the Council for the Advancement of the South African Constitution and the National Association of Democratic Lawyers (Nadel) were in support of the principle of disclosure by judges. Nadel said it accepted that it was arguable that disclosure of the financial and business interests of a judge’s family members infringed their right to privacy. However, it said that right was not absolute. Nadel said the obligation on the judge and his or her family to disclose was in the national democratic interest and should be supported.
Source: Business Day
While MPs’ financial interests are open to the public, the heads of court want the information on their financial interests to be confidential. The heads of court comprise of Chief Justice Mogoeng Mogoeng; the president of the Supreme Court of Appeal, Lex Mpati, and his deputy, Kenneth Mthiyane; and the judges president of the high courts and specialist courts. Following a number of comments by legal bodies stemming from oral submissions by a delegation of judges to the parliamentary ad hoc joint committee on the code of judicial conduct on disclosure of interests last month, the heads of court said they felt it was necessary to set the record straight.
The judges said at the end of a consultative meeting in Cape Town last Friday that they had never been opposed to calls for disclosure, subject to the issue of confidentiality, on which they hoped to have further discussions with the relevant authority. They said their main and unequivocal opposition was to the current provisions’ call for disclosure of the financial interests of judges’ family members. "Quite frankly, we do not see what public interest would be served by the disclosure of spouses’, partners’ and children’s financial interests as the provisions currently call for. We vehemently oppose wholesale disclosures in so far as our spouses, partners and children are concerned. "However, we welcome wholeheartedly, as we have always done, calls for judges to register their financial and other registrable interests, especially in so far as it would help prevent any possible corruption or perception thereof," the heads of court said.
The judges said they would also welcome any investigation of any retired or sitting judges and their family members suspected of any improper or other misconduct that could bring the judiciary into disrepute.
Last week, the Black Lawyers Association said as custodians of the interpretation and application of the constitution, which was unequivocal on issues of transparency and accountability by all arms of government, the judiciary had a duty to lead on transparency.
Earlier this month, the Council for the Advancement of the South African Constitution and the National Association of Democratic Lawyers (Nadel) were in support of the principle of disclosure by judges. Nadel said it accepted that it was arguable that disclosure of the financial and business interests of a judge’s family members infringed their right to privacy. However, it said that right was not absolute. Nadel said the obligation on the judge and his or her family to disclose was in the national democratic interest and should be supported.
Source: Business Day
Monday, February 6, 2012
The South African Constitutional Court Extends Police Accountability
Should the police be more trustworthy than any other citizen? And if they are not, can you hold the Minister of Police to account? In an important unanimous judgement penned by South African Chief Justice Mogoeng Mogoeng and handed down on 15 December 2011, the answer to these questions was a resounding “yes.” This judgement has effectively set new legal precedent by extending the basis for civil claims against police officers who break the law and cause injury or damage to citizens. Most importantly, this judgement holds that even when off-duty, if there is enough of a connection between their employment as police officers and their illegal acts, the Minister of Police may be held liable.
This ground-breaking case began 14 years ago in 1998 when Allister van Wyk, a police officer, raped a thirteen year old girl outside the town of George in the Western Cape. The incident started in the early hours of the morning when the girl had needed a lift home from a night-club. Mr van Vyk offered to give her a lift home as he was doing the same for two of his friends. He was driving an unmarked police vehicle at the time that had been allocated to him as he was on standby duty and would need to be able to respond quickly if he was called to pace himself on duty. Knowing he was a police officer and was driving a police vehicle, the girl felt that it would be safe to accept a lift from him. After leaving the night club, van Wyk first dropped off his friends, but then, instead of driving her home, he drove out of town towards an area known as ‘the Wilderness’, stopping in the Kaaimans pass at a dark and secluded picnic spot alongside the estuary.
The girl, realising that he wasn’t driving her straight home as promised, became afraid and jumped from the car as soon as it stopped. She managed to get away and hide amongst the trees and bush until he left. Then she made her way back to the main road with the intention of hitchhiking back into George. She didn’t wait long before a vehicle stopped for her. To her surprise it was the same car she had just escaped from, driven by van Wyk. Although reluctant to climb back in, van Wyk assured her that he would take her home unharmed. Given that there were very few vehicles on this road at that time of the morning, she felt she had little choice but to accept. Van Wyk drove a short way up the road before stopping, assaulting and then raping her. He then drove her home and threatened to hurt or kill her if she told anyone what he had done.
She bravely defied his threats and reported the incident to the police who arrested van Wyk and charged him with rape. He was later convicted of the crime and was sent to prison. Shockingly, at the time of the rape van Wyk was head of the George detective unit, this was in spite of having four previous criminal convictions against him.
In 2005 the girl, now a young woman, brought a civil claim for damages against van Wyk and the Minister of Police. She held the Minister liable for van Wyk’s action and sought to claim damages from the police. Although the High Court ruled in her favour, the police appealed the decision which was subsequently overturned in a majority judgement by the Supreme Court of Appeal on the basis that van Wyk was off-duty at the time of the incident and that the Minister could therefore not be held liable. She then appealed that ruling in the Constitutional Court.
The question the Constitutional Court was called on to answer, was whether the Minister of Police could be held accountable for the actions of police officers, who were not on active duty; and whether police officers should be more worthy of our trust than any other citizen. The Institute for Security Studies was the first of three civil-society organisations to apply to act as amicus curie (friends of the court) by bringing expert testimony in the matter. We did so because this case offered an opportunity to strengthen police accountability by putting in place additional legal measures that citizens could use to hold the state liable for criminal and abusive behaviour by police officials.
The Court’s finding, that the Minister of Police, is indeed accountable for the actions of officers, represents an important milestone in the effort to ensure that the police act to project, rather than harm citizen’s even when they are not on active duty. It means that the Minister of Police has a responsibility to ensure that the officers who are recruited, appointed and employed by the police are not criminals themselves. Fortunately, the current Minister of Police, Nathi Mthethwa has already publicly committed himself to professionalising the South African Police Service (SAPS). This finding is particularly important in the light of the increase in recent years of cases of human rights violations committed by the police. For instance, the Independent Complaints Directorate (ICD) reported 45 allegations of torture in its 2010-2011 report, the highest number reported since 1999.
Towards the end of 2011, the Parliamentary Portfolio Committee on Police heard that during the 2010-11 financial year, contingent civil claims against the SAPS, mostly arising out of police criminality and misconduct, had increased to the substantial amount of R11bn or about 20% of the total police budget. In the short-term the Constitutional Courts ruling is likely to mean that the police will face additional civil claims and will therefore have to allocate even more of their budget to cover the potential cost of these claims.
To prevent this, it is going to be necessary for the Minister to ensure that SAPS management put proper measures in place to ensure that the people they recruit, train and employ understand, accept and are held accountable to the burden of professional service that being a member of the police requires. If SAPS management is able to do this, it will result in better policing while costing the state less in civil claims in the long run.
Source: ISS
This ground-breaking case began 14 years ago in 1998 when Allister van Wyk, a police officer, raped a thirteen year old girl outside the town of George in the Western Cape. The incident started in the early hours of the morning when the girl had needed a lift home from a night-club. Mr van Vyk offered to give her a lift home as he was doing the same for two of his friends. He was driving an unmarked police vehicle at the time that had been allocated to him as he was on standby duty and would need to be able to respond quickly if he was called to pace himself on duty. Knowing he was a police officer and was driving a police vehicle, the girl felt that it would be safe to accept a lift from him. After leaving the night club, van Wyk first dropped off his friends, but then, instead of driving her home, he drove out of town towards an area known as ‘the Wilderness’, stopping in the Kaaimans pass at a dark and secluded picnic spot alongside the estuary.
The girl, realising that he wasn’t driving her straight home as promised, became afraid and jumped from the car as soon as it stopped. She managed to get away and hide amongst the trees and bush until he left. Then she made her way back to the main road with the intention of hitchhiking back into George. She didn’t wait long before a vehicle stopped for her. To her surprise it was the same car she had just escaped from, driven by van Wyk. Although reluctant to climb back in, van Wyk assured her that he would take her home unharmed. Given that there were very few vehicles on this road at that time of the morning, she felt she had little choice but to accept. Van Wyk drove a short way up the road before stopping, assaulting and then raping her. He then drove her home and threatened to hurt or kill her if she told anyone what he had done.
She bravely defied his threats and reported the incident to the police who arrested van Wyk and charged him with rape. He was later convicted of the crime and was sent to prison. Shockingly, at the time of the rape van Wyk was head of the George detective unit, this was in spite of having four previous criminal convictions against him.
In 2005 the girl, now a young woman, brought a civil claim for damages against van Wyk and the Minister of Police. She held the Minister liable for van Wyk’s action and sought to claim damages from the police. Although the High Court ruled in her favour, the police appealed the decision which was subsequently overturned in a majority judgement by the Supreme Court of Appeal on the basis that van Wyk was off-duty at the time of the incident and that the Minister could therefore not be held liable. She then appealed that ruling in the Constitutional Court.
The question the Constitutional Court was called on to answer, was whether the Minister of Police could be held accountable for the actions of police officers, who were not on active duty; and whether police officers should be more worthy of our trust than any other citizen. The Institute for Security Studies was the first of three civil-society organisations to apply to act as amicus curie (friends of the court) by bringing expert testimony in the matter. We did so because this case offered an opportunity to strengthen police accountability by putting in place additional legal measures that citizens could use to hold the state liable for criminal and abusive behaviour by police officials.
The Court’s finding, that the Minister of Police, is indeed accountable for the actions of officers, represents an important milestone in the effort to ensure that the police act to project, rather than harm citizen’s even when they are not on active duty. It means that the Minister of Police has a responsibility to ensure that the officers who are recruited, appointed and employed by the police are not criminals themselves. Fortunately, the current Minister of Police, Nathi Mthethwa has already publicly committed himself to professionalising the South African Police Service (SAPS). This finding is particularly important in the light of the increase in recent years of cases of human rights violations committed by the police. For instance, the Independent Complaints Directorate (ICD) reported 45 allegations of torture in its 2010-2011 report, the highest number reported since 1999.
Towards the end of 2011, the Parliamentary Portfolio Committee on Police heard that during the 2010-11 financial year, contingent civil claims against the SAPS, mostly arising out of police criminality and misconduct, had increased to the substantial amount of R11bn or about 20% of the total police budget. In the short-term the Constitutional Courts ruling is likely to mean that the police will face additional civil claims and will therefore have to allocate even more of their budget to cover the potential cost of these claims.
To prevent this, it is going to be necessary for the Minister to ensure that SAPS management put proper measures in place to ensure that the people they recruit, train and employ understand, accept and are held accountable to the burden of professional service that being a member of the police requires. If SAPS management is able to do this, it will result in better policing while costing the state less in civil claims in the long run.
Source: ISS
Thursday, October 6, 2011
'Justice system overhaul would mean no more meddling'
A proposed overhaul of South Africa's justice system will prevent "meddling" with case files, says the high court's Judge Eberhard Bertelsmann. A proposed overhaul of South Africa's justice system will prevent "meddling" with case files, North Gauteng High Court Judge Eberhard Bertelsmann said on Thursday. "With this system, judges will be given §an electronic case file the moment a case is opened. The electronic files will be saved in a server and will have certain features to prevent meddling," he said.
Bertelsmann was talking at the opening of the Consumer Goods Council of SA annual conference in Johannesburg. He said the new system was decided on at a national judiciary meeting in 2009, and was being initiated this year. "Previous chief justice Sandile Ngcobo endorsed this model, and his enthusiasm has been carried over with new chief justice Mogoeng Mogoeng." He said the system would speed up trials. "Delays are simply not good enough. Our criminal justice system is creaky in its joints. We have 40 000 people awaiting trial in prisons. Some are granted bail, and others can't even raise R300 needed for bail. "It is unfair that we punish people, at a cost to ourselves that is greater than R300, because these people are poor. That does not sit well with a Constitution that demands equality and dignity."
He said an efficient, and technologically advanced justice system would benefit the consumer goods council as well. "How would we deal with crime, protect brands and patents, guard against unfair competition and protect labourers from being exploited if we never had courts? ... We are embarking on a very exciting trek ... that has filled us with optimism. This new process demands a new culture, and we need the support of all members of civil society, including consumer organisations."
Source: Mail & Guardian
Bertelsmann was talking at the opening of the Consumer Goods Council of SA annual conference in Johannesburg. He said the new system was decided on at a national judiciary meeting in 2009, and was being initiated this year. "Previous chief justice Sandile Ngcobo endorsed this model, and his enthusiasm has been carried over with new chief justice Mogoeng Mogoeng." He said the system would speed up trials. "Delays are simply not good enough. Our criminal justice system is creaky in its joints. We have 40 000 people awaiting trial in prisons. Some are granted bail, and others can't even raise R300 needed for bail. "It is unfair that we punish people, at a cost to ourselves that is greater than R300, because these people are poor. That does not sit well with a Constitution that demands equality and dignity."
He said an efficient, and technologically advanced justice system would benefit the consumer goods council as well. "How would we deal with crime, protect brands and patents, guard against unfair competition and protect labourers from being exploited if we never had courts? ... We are embarking on a very exciting trek ... that has filled us with optimism. This new process demands a new culture, and we need the support of all members of civil society, including consumer organisations."
Source: Mail & Guardian
Thursday, September 8, 2011
South Africa: Justice Is Appointed Over Opposition of Civil Groups
President Jacob Zuma appointed Mogoeng Mogoeng as chief justice on Thursday, casting aside accusations that the judge has been lenient on rapists and is homophobic. Social justice, women’s and gay rights groups, opposition parties, three South African bar associations, nine American law professors and three female Nobel laureates had written submissions opposing the nomination.
Source: New York Times
Source: New York Times
Sunday, September 4, 2011
JSC bruising keeps Justice Mogoeng on the ropes
Justice Mogoeng Mogoeng's interview for the Constitutional Court chief justice position by the Judicial Service Commission in Cape Town on Saturday was no heavyweight fight. Despite the only contender's initial swagger as he entered the Eastern Ballroom of the International Convention Centre at around mid-morning to open his interview with an attack on those, especially the media and legal commentators, who had been critical of his nomination by president Jacob Zuma, this was a mismatch for Mogoeng. One where, especially in the session following lunch, he had to contend with several bruising jabs from commissioners over whether he had the intellectual capacity to be the "flag-bearer of the judiciary"; gender insensitivity; perceived homophobia; and his ethics.
Such was the flurry of punches that, at one point, the contender cracked, snapping at the JSC's chair, deputy chief justice Dikgang Moseneke, to stop being "sarcastic" when he was pushed on his "jurisprudential position" behind dissenting on the Le Roux v Dey Constitutional Court judgment. In that judgment, Mogoeng was the only justice of the 11 who heard the case to hold that it was defamatory to call someone gay. He didn't state why -- casting a shadow over both his judicial rigour and the way his attitude towards gays and lesbians was perceived. When asked about the matter by commissioner Engela Schlemmer, Mogoeng initially admitted, "I think I should have provided reasons. I erred in not providing reasons," he said. He then added he did not have sufficient time to "reflect on the matter" before potentially writing a judgment and hence, had not. When pushed by both Schlemmer and Moseneke on his "jurisprudential position" behind his initial dissent, Mogoeng was initially evasive and eventually cracked when called on the very specificity of the question, snapping at Moseneke to stop being "sarcastic". Eventually, unable to cough up a jurisprudential position, he backtracked, and said: "I say now: I should not have dissented."
It was a telling admission. And a body blow for a potential chief justice hoping to assert his intellect. It caused Koos van der Merwe, the IFP MP on the JSC, to ask Mogoeng if he had a short temper. The judge answered in the negative before being chastised by Van der Merwe for his "arrogance". "I have sat on this commission since the beginning and this is the first time in 15 years that an applicant is so arrogant that he has done what you have done. It points to your unsuitability as a chief justice," said Van der Merwe.
Gender activists in the massed public gallery could be seen visibly squirming as Mogoeng sought to defend his reduction of sentences in various rape cases he had presided over because, he said, rape "varies in degrees". Commissioner Krish Govender had, mindful of the "violence and trauma" inherent in "all" rape incidents, pushed Mogoeng on his reduction of sentences for convicted rapists -- especially since the judge had identified mitigating circumstances which in some cases included the perpetrator being married to the survivor and in another (S v Sebaeng) where the perpetrator had, as Mogoeng noted in his judgment, demonstrated a "tender approach" in raping a seven-year-old. Mogoeng asserted that he had merely noted the "degrees" of rape in his written judgments and also pleaded being a young judge who "was learning from my superiors and I followed my superiors" in reducing sentences. Asked by Moseneke if he would rewrite those judgments, Mogoeng demonstrated one of several Zuma-like moments with a "Maybe. I don't want to put myself on the spot. Maybe."
While Mogoeng was found wanting with rigorous questioning from commissioners such as Govender, Moseneke and Schlemmer, he also undoubtedly had several firmly in his corner. If the JSC interview were a boxing match, then minister Jeff Radebe would undoubtedly be Mogoeng's sweat-dabber in the corner, towel at the ready to dry the brow -- or staunch the blood -- between rounds.
Radebe and the three ANC MPs on the JSC, including deputy ministers Fatima Chohan (home affairs) and Ngoako Ramathlodi (correctional services) together with Advocate Dumisa Ntsebeza (one of four presidential appointees to the JSC) were instrumental in ensuring Mogoeng had breathing space between probing, questioning combinations with much softer questions and observations. After Mogoeng's defence had crumbled following his inability to provide any jurisprudential reasoning behind his dissension in the Le Roux v Dey judgment, Ramathlodi stepped up to note that the judge was a "mirror image" of himself. Both, noted Ramathlodi, had grown up poor, in the rural North West, but had succeeded in becoming "an inspiration" to the rural youth back home.
Earlier in the morning, many of these commissioners had argued against a submission by the DA's Hendrik Schmidt, that discussion should take place about whether nominations for more candidates ought to be reopened. Further discussion on the matter is likely to take place on Sunday at the Grand West in Hotel after the interview of Mogoeng, at the same venue, closes. Yet, despite the obvious partisanship of some members of the JSC, the complete irrelevance of others (especially those from the National Council of Provinces) and Mogoeng's early morning broadside at critics, the prospective chief justice must have felt like being at the end of Muhammed Ali's fists for long periods on Saturday. He was asked about his ethics in not recusing himself in cases prosecuted by his wife (there were no clear guidelines, but he did feel "discomfort" at the time) and his paucity of seminal, reported-upon judgments and ability to inspire and lead the Constitutional Court and the larger judiciary ("I have full confidence in my intellectual depth").
He also attempted to rebut perceptions that he was sympathetic to the executive by citing four cases where he had ruled against government and denied claims that he had a close relationship with Zuma that might have influenced the president's choice. Mogoeng said he had "no relationship whatsoever" with Zuma, and stated that a 2008 meeting with the president -- exposed by the Mail & Guardian -- had been their first and that he had met the president three times since then. But Mogoeng reiterated that he had spoken to Zuma only at their first meeting, and their last meeting, which took place when he was informed of the president's decision to nominate him for the chief justice position. Mogoeng added that he did not believe this would lead to a "corrosion of the separation of powers".
It was a bruising day for Mogoeng, but the bout is not over. The JSC hearing is set to continue on Sunday at 9am.
Source: Mail & Guardian
Such was the flurry of punches that, at one point, the contender cracked, snapping at the JSC's chair, deputy chief justice Dikgang Moseneke, to stop being "sarcastic" when he was pushed on his "jurisprudential position" behind dissenting on the Le Roux v Dey Constitutional Court judgment. In that judgment, Mogoeng was the only justice of the 11 who heard the case to hold that it was defamatory to call someone gay. He didn't state why -- casting a shadow over both his judicial rigour and the way his attitude towards gays and lesbians was perceived. When asked about the matter by commissioner Engela Schlemmer, Mogoeng initially admitted, "I think I should have provided reasons. I erred in not providing reasons," he said. He then added he did not have sufficient time to "reflect on the matter" before potentially writing a judgment and hence, had not. When pushed by both Schlemmer and Moseneke on his "jurisprudential position" behind his initial dissent, Mogoeng was initially evasive and eventually cracked when called on the very specificity of the question, snapping at Moseneke to stop being "sarcastic". Eventually, unable to cough up a jurisprudential position, he backtracked, and said: "I say now: I should not have dissented."
It was a telling admission. And a body blow for a potential chief justice hoping to assert his intellect. It caused Koos van der Merwe, the IFP MP on the JSC, to ask Mogoeng if he had a short temper. The judge answered in the negative before being chastised by Van der Merwe for his "arrogance". "I have sat on this commission since the beginning and this is the first time in 15 years that an applicant is so arrogant that he has done what you have done. It points to your unsuitability as a chief justice," said Van der Merwe.
Gender activists in the massed public gallery could be seen visibly squirming as Mogoeng sought to defend his reduction of sentences in various rape cases he had presided over because, he said, rape "varies in degrees". Commissioner Krish Govender had, mindful of the "violence and trauma" inherent in "all" rape incidents, pushed Mogoeng on his reduction of sentences for convicted rapists -- especially since the judge had identified mitigating circumstances which in some cases included the perpetrator being married to the survivor and in another (S v Sebaeng) where the perpetrator had, as Mogoeng noted in his judgment, demonstrated a "tender approach" in raping a seven-year-old. Mogoeng asserted that he had merely noted the "degrees" of rape in his written judgments and also pleaded being a young judge who "was learning from my superiors and I followed my superiors" in reducing sentences. Asked by Moseneke if he would rewrite those judgments, Mogoeng demonstrated one of several Zuma-like moments with a "Maybe. I don't want to put myself on the spot. Maybe."
While Mogoeng was found wanting with rigorous questioning from commissioners such as Govender, Moseneke and Schlemmer, he also undoubtedly had several firmly in his corner. If the JSC interview were a boxing match, then minister Jeff Radebe would undoubtedly be Mogoeng's sweat-dabber in the corner, towel at the ready to dry the brow -- or staunch the blood -- between rounds.
Radebe and the three ANC MPs on the JSC, including deputy ministers Fatima Chohan (home affairs) and Ngoako Ramathlodi (correctional services) together with Advocate Dumisa Ntsebeza (one of four presidential appointees to the JSC) were instrumental in ensuring Mogoeng had breathing space between probing, questioning combinations with much softer questions and observations. After Mogoeng's defence had crumbled following his inability to provide any jurisprudential reasoning behind his dissension in the Le Roux v Dey judgment, Ramathlodi stepped up to note that the judge was a "mirror image" of himself. Both, noted Ramathlodi, had grown up poor, in the rural North West, but had succeeded in becoming "an inspiration" to the rural youth back home.
Earlier in the morning, many of these commissioners had argued against a submission by the DA's Hendrik Schmidt, that discussion should take place about whether nominations for more candidates ought to be reopened. Further discussion on the matter is likely to take place on Sunday at the Grand West in Hotel after the interview of Mogoeng, at the same venue, closes. Yet, despite the obvious partisanship of some members of the JSC, the complete irrelevance of others (especially those from the National Council of Provinces) and Mogoeng's early morning broadside at critics, the prospective chief justice must have felt like being at the end of Muhammed Ali's fists for long periods on Saturday. He was asked about his ethics in not recusing himself in cases prosecuted by his wife (there were no clear guidelines, but he did feel "discomfort" at the time) and his paucity of seminal, reported-upon judgments and ability to inspire and lead the Constitutional Court and the larger judiciary ("I have full confidence in my intellectual depth").
 |
| Jacob Zuma met Mogoeng Mogoeng for the first time at a dinner in Mafikeng in 2008 |
It was a bruising day for Mogoeng, but the bout is not over. The JSC hearing is set to continue on Sunday at 9am.
Source: Mail & Guardian
Friday, August 26, 2011
NADEL do not recommend Justice Mogoeng
NADEL is committed to the promotion of the values enshrined in the Constitution of the Republic of South Africa within the legal profession, judicial system and society at large.
NADEL’s Constitution is aimed toward the realisation of the goals and objectives as set out in the Constitution in particular to meaningfully and assiduously strive for a truly democratic and just society, free from oppression and exploitation; and combat and prevent all instances of injustice, malpractice and unfair discriminatory practices based on race, colour or creed.”
NADEL raise a number of serious concerns by Mogoeng J’s record regarding his commitment to the espousal of foundational values of the Constitution, his knowledge and appreciation of the nature and reality of domestic violence and sexual assault, his seemingly sexist views of women’s rights within the home and his role as an Apartheid prosecutor.
NADEL feels strongly that under the circumstances Justice Mogoeng Mogoeng’s appointment as Chief Justice, in light of the importance of the position and its requirements, is not recommended.
Source: Constitutionally Speaking
The National Association of Democratic Lawyers (NADEL) is a voluntary organisation of progressive lawyers and a significant stakeholder in the South African legal profession. Its primary goal is a legal and judicial system that realises access to justice for disadvantaged people, fosters the rule of law and constitutional values.
NADEL was founded in 1987 by among others, the late Adv Dullah Omar, who became the first Minister of Justice in our democratic South Africa, Chief Justice Pius Langa and Deputy Chief Justice Dikgang Moseneke.
NADEL membership comprises members of the legal profession including attorneys, advocates, academics, legal advisors, paralegals and law students. Most members are private practitioners who have traditionally serviced working class and poor communities and who practise primarily in the areas of human rights, gender and access to justice.
Wednesday, August 17, 2011
Dikgang Moseneke: It's not about what the ANC want
On his release Moseneke, who had studied law and politics through Unisa while in prison, pursued a career in law. He practised as an advocate in the Pretoria Bar before he joined the private sector, where he held high-profile positions. For his part Zuma, who informally taught himself to read and write, became a career politician and government MEC. Both had taken part in the drafting of the new democratic constitution they would later be expected to uphold in their different capacities.
Zuma was central in delivering the violence-prone IFP to the transitional negotiation table that led to the adoption of the Constitution. While practising law, Moseneke took part in the technical drafting committee. Once the interim constitution was adopted and Moseneke had left the Bar, then-president Nelson Mandela persuaded him to leave his lucrative plum business career for the high court as a judge. Moseneke was among a few black judges expected to uproot the apartheid era jurisprudence and build a new one based on the new Constitution.
The Constitution of which the drafting had united Moseneke and Zuma, had also become a source of the necessary separation as part of the division of powers between the judiciary, executive and parliament. Enter then-president Thabo Mbeki, who appointed Zuma as his deputy and Moseneke as deputy to Chief Justice Pius Langa. This meant Zuma and Moseneke held similarly powerful positions respectively in the executive and judiciary.
Zuma later became head of the executive with the power to appoint a chief justice. When Justice Langa retired, he appointed Justice Sandile Ngcobo, who was due to retire from the court, overlooking Moseneke. Ngcobo delivered his last judgment on Thursday last week after his own court had earlier dismissed as unconstitutional Zuma's attempts to extend his term of office. Zuma was very comfortable with Ngcobo. Ngcobo had ruled favourably in cases crucial to Zuma's political life.
When the Constitutional Court found valid Scorpions search-and-seizure warrants on Zuma's lawyers, Ngcobo was the only dissenting voice. When the court found that the government was duty-bound to establish an independent anti-corruption unit, Ngcobo dissented. Now that Ngcobo has retired, the legal fraternity has been anxious about whether Zuma would appoint Moseneke, with whom he appears to disagree in his judgments and political thought.
Yesterday, Zuma nominated for the chief justice post Judge Mogoeng Mogoeng, a lay preacher, who joined the Constitutional Court in 2009. At the heart of Zuma's decision to overlook Moseneke are the remarks he made a few years ago shortly after Zuma's Polokwane victory, that he would spend his tenure in the judiciary serving the people of South Africa - "it's not about what the ANC want".
Zuma reacted angrily to the comments, as he believed, quite wrongly, they were oppositionist to the ANC. The political furore the statement caused was followed by a meeting between ANC Deputy President Kgalema Montlanthe, Moseneke and Langa, who was still in office. After the meeting, preceded by claims that judges were "counter-revolutionary", the ANC issued a statement, saying it was satisfied with Moseneke's explanation. According to Motlanthe the meeting concluded that Moseneke's statement was misunderstood as he sought merely to stress judicial independence from all political parties. Motlanthe later told a gathering in Cape Town the ANC accepted Moseneke's explanation.
Zuma's overlooking of Moseneke - which in itself is not legally wrong but politically naive - will have interesting implications. Firstly, if Zuma's problem lies in Moseneke's judicial philosophy of non-deference to the executive, then tough luck to him. Judging by his recent comments about judges who overturn legis-lation passed by Parliament, it makes sense that he liked Ngcobo's executive deference approach. But appointing Mogoeng is unlikely to change the court's philosophical posture. The present political context, in which unconstitutional laws are being proposed and corruption runs rampant, obviously has a psychological effect on the judiciary, who could feel constitutionally obliged to stop the malaise. Zuma's gripe will remain personal and petty rather than substantive. It won't swing the court's activism stance. Not now. The edifice of jurisprudence will take decades to undo.
Secondly, appointing anyone less experienced than Moseneke in Constitutional Court matters and in running of the court itself, means Moseneke remains a towering figure in that court.
Thirdly, avoiding Moseneke means despite his claims that he follows in the footsteps of Madiba, Zuma is unable to be reconciliatory. He is unable to rise above personal petty political bitterness triggered by a misunderstanding which was explained to the satisfaction of his own party.
Fourthly, it means Zuma places high premium not on who is well qualified for the top job, but on who he is politically comfortable with. This also places an unfair burden on Mogoeng because public perception would have a certain narrow political expectation of him. He will have to continue to defer to the executive. It has paid dividends, unless he works to prove a point.
Fifthly, it means Zuma has forgotten the bigger political contribution Moseneke made in the struggle against apartheid simply because Moseneke appears to be too independent for his liking.
Finally, it also means that Zuma would rather work with the Freedom Front and National Party ministers, sharing cabinet secrets with them, than trust a well-qualified freedom fighter with whom he once shared the prison for a noble cause.
Mkhabela - editor of Sowetan
Source: Sowetan
Deadly dangerous Judgment Day
Many South Africans were stunned this week by President Jacob Zuma's nomination of Constitutional Court Justice Mogoeng Mogoeng to succeed Sandile Ngcobo as chief justice.
It would appear a wholly inadequate appointment and from informal settlements in Durban to law offices in Johannesburg, the initial stupefaction gave way to conversation. Talk was not merely about the number of years Mogoeng has spent in judicial robes, as the presidency would have us believe judging by a spurious statement it released on Wednesday which set out to address the "disappointing inaccuracies and distortions in the responses and commentary on [Zuma's] nomination". South Africans are more sophisticated than that.
From shack dwellers who have successfully approached the court to fend off legislation allowing arbitrary eviction from their homes to middle-class human rights activists buoyed by the prospect of a more humane society after the repeal of the death sentence, we have been analysing the probity, jurisprudence, independent-mindedness and integrity of the man Zuma has chosen to lead the highest court in the land.
It matters to us. Our fundamental human rights, as enshrined in the Constitution, are essential, as is the attainment of a more egalitarian society. The judicial guardians of the Constitution are vital to these rights and aspirations. Yet, instead of selecting a stellar defender of the Constitution Zuma appears to have made a political appointment, choosing someone with a lack of constitutional experience, who, by virtue of his unlikely appointment over the heads of more suitable colleagues, is indebted to the executive.
A jurist who, considering the paucity of reported judgments and an inability to rouse himself in court to engage with legal arguments, appears patently wanting. There is also the no-small matter of his lack of judgment: Mogoeng has failed on more than one occasion to recuse himself from hearing matters in which his wife has acted as prosecutor.
He will be a chief justice cast very much in the image of the president: someone with dubious judgment, a social conservative, a traditionalist, with apparently homophobic tendencies and religious to boot -- they are both ordained pastors. This, while the message sent out to the judiciary is that subservience to the executive, not independent-mindedness, will get you promoted.
Mogoeng, if confirmed, may go on to prove his numerous detractors wrong. But there is a frightening lack of sophistication in both the president's and the ruling ANC's understanding of the expected tension among the three arms of government in a constitutional democracy.
In statements made this week ANC secretary general Gwede Mantashe suggested that, because of some of its rulings, the Constitutional Court was hostile to Parliament and the executive and that the judiciary as a whole sought to "arrest the functioning of government". What is, actually, the normal modus operandi of a constitutional democracy -- the constitutional testing of legislation -- appears to be a "problem" for Mantashe.
Mantashe's problem with the judiciary appears to be that it is unelected, unlike the ANC, which purports to represent the will of the masses. Zuma's gripes appear much more personal. Following various Constitutional Court judgments against him, including his most recent attempt to extend Ngcobo's term, the president seems driven by malice when engaging with that court. There is a profound lack of understanding by two of the most powerful men in the land about the role of the judiciary in a constitutional democracy. It is deadly dangerous.
Source: Mail & Guardian
It would appear a wholly inadequate appointment and from informal settlements in Durban to law offices in Johannesburg, the initial stupefaction gave way to conversation. Talk was not merely about the number of years Mogoeng has spent in judicial robes, as the presidency would have us believe judging by a spurious statement it released on Wednesday which set out to address the "disappointing inaccuracies and distortions in the responses and commentary on [Zuma's] nomination". South Africans are more sophisticated than that.
From shack dwellers who have successfully approached the court to fend off legislation allowing arbitrary eviction from their homes to middle-class human rights activists buoyed by the prospect of a more humane society after the repeal of the death sentence, we have been analysing the probity, jurisprudence, independent-mindedness and integrity of the man Zuma has chosen to lead the highest court in the land.
It matters to us. Our fundamental human rights, as enshrined in the Constitution, are essential, as is the attainment of a more egalitarian society. The judicial guardians of the Constitution are vital to these rights and aspirations. Yet, instead of selecting a stellar defender of the Constitution Zuma appears to have made a political appointment, choosing someone with a lack of constitutional experience, who, by virtue of his unlikely appointment over the heads of more suitable colleagues, is indebted to the executive.
A jurist who, considering the paucity of reported judgments and an inability to rouse himself in court to engage with legal arguments, appears patently wanting. There is also the no-small matter of his lack of judgment: Mogoeng has failed on more than one occasion to recuse himself from hearing matters in which his wife has acted as prosecutor.
He will be a chief justice cast very much in the image of the president: someone with dubious judgment, a social conservative, a traditionalist, with apparently homophobic tendencies and religious to boot -- they are both ordained pastors. This, while the message sent out to the judiciary is that subservience to the executive, not independent-mindedness, will get you promoted.
Mogoeng, if confirmed, may go on to prove his numerous detractors wrong. But there is a frightening lack of sophistication in both the president's and the ruling ANC's understanding of the expected tension among the three arms of government in a constitutional democracy.
In statements made this week ANC secretary general Gwede Mantashe suggested that, because of some of its rulings, the Constitutional Court was hostile to Parliament and the executive and that the judiciary as a whole sought to "arrest the functioning of government". What is, actually, the normal modus operandi of a constitutional democracy -- the constitutional testing of legislation -- appears to be a "problem" for Mantashe.
Mantashe's problem with the judiciary appears to be that it is unelected, unlike the ANC, which purports to represent the will of the masses. Zuma's gripes appear much more personal. Following various Constitutional Court judgments against him, including his most recent attempt to extend Ngcobo's term, the president seems driven by malice when engaging with that court. There is a profound lack of understanding by two of the most powerful men in the land about the role of the judiciary in a constitutional democracy. It is deadly dangerous.
Source: Mail & Guardian
Tuesday, August 16, 2011
Zuma picks Mogoeng as chief justice
President Jacob Zuma on Wednesday said Justice Mogoeng Mogoeng was his preferred candidate for the new chief justice. Zuma said in a statement that Mogoeng had demonstrated his "expertise and keen interest" in the transformation of the judiciary and played a leading role in programmes designed to promote court efficiency and transformation. The statement said the position had become vacant at midnight on August 14 "as a result of the discharge from active service of former chief justice Sandile Ngcobo".
In June, Zuma extended Ngcobo's 12-year term under Section 8(a) of the Judge's Remuneration and Conditions of Employment Act, which was met by a Constitutional Court challenge by civil society organisations who argued that it was unconstitutional for the president to extend the chief justice's term of office. Only an Act of Parliament may do so, they said. According to the presidency's statement Mogoeng was part of a five-member committee, led by former chief justice Pius Langa, which investigated allegations of racism and gender discrimination within the judiciary. He also organised workshops for judges and magistrates on leadership and sensitivity training as well as workshops for magistrates on judgment writing and trial administration.
Professor Steven Friedman, director of the Centre of the Study of Democracy at the University of Johannesburg, told the Mail & Guardian on Tuesday that the choice of Mogoeng was a "missed opportunity". "On the one hand you could have had continuity as well as the message that our government is comfortable with a chief justice with clear political independence in the appointment of Deputy Chief Justice Dikgang Moseneke instead of Mogoeng. "Additionally, it could have been a great coup for the empowerment of women if either Justice Sisi Khampepe or Bess Nkabinde were appointed," said Friedman. Nonetheless, Friedman said he had no reason to believe Mogoeng's appointment was not in the best interests of the Constitution.
Mogoeng started his professional career as a supreme court (now high court) prosecutor in Mafikeng, holding this position between March 1986 and February 1990, when he resigned to undertake pupillage at the Johannesburg Bar. He then practised as an advocate in Johannesburg until the end of 1991. He then terminated his membership of the Johannesburg Bar and became a member of the Mafikeng Bar Association (now known as North West Bar Association) until May 1997. While at the Mafikeng Bar, Mogoeng served as the deputy chairperson of the Bar Council and as the chairperson of the Bophuthatswana chapter of Lawyers for Human Rights. He was also a part-time senior lecturer in criminal law and criminal procedure at the University of the North West's Mafikeng Campus from 1992 to 1993. He was a member of the Industrial Court from 1989 until it ceased to exist. In 1994 he served in the legal section of the Independent Electoral Commission in the North West province. In June 1997 he was appointed a judge of the North West High Court in Mafikeng. He was appointed as a judge of the Labour Appeal Court in April 2000. In October 2002 he was appointed judge president of the North West High Court.
Mogoeng was born in Goo-Mokgatha, north-east of Zeerust on January 14 1961. He graduated from the University of Zululand with a B Juris in 1983. In 1985 he completed his LLB at the University of Natal in Durban. In 1989, he completed his studies at the University of South Africa, where he studied towards a LLM concentrating on labour law, the law of property, the law of insurance, the law of evidence and the law of criminal procedure.
Mogoeng is also an ordained pastor. Prior to joining the judiciary in 1997, Mogoeng also served as chairperson of the North West Parks Board and as chairperson of Golden Leopards Resorts. He was also a member of the Black Lawyers Association. He has since resigned from these positions.
Source: Mail & Guardian
In June, Zuma extended Ngcobo's 12-year term under Section 8(a) of the Judge's Remuneration and Conditions of Employment Act, which was met by a Constitutional Court challenge by civil society organisations who argued that it was unconstitutional for the president to extend the chief justice's term of office. Only an Act of Parliament may do so, they said. According to the presidency's statement Mogoeng was part of a five-member committee, led by former chief justice Pius Langa, which investigated allegations of racism and gender discrimination within the judiciary. He also organised workshops for judges and magistrates on leadership and sensitivity training as well as workshops for magistrates on judgment writing and trial administration.
Professor Steven Friedman, director of the Centre of the Study of Democracy at the University of Johannesburg, told the Mail & Guardian on Tuesday that the choice of Mogoeng was a "missed opportunity". "On the one hand you could have had continuity as well as the message that our government is comfortable with a chief justice with clear political independence in the appointment of Deputy Chief Justice Dikgang Moseneke instead of Mogoeng. "Additionally, it could have been a great coup for the empowerment of women if either Justice Sisi Khampepe or Bess Nkabinde were appointed," said Friedman. Nonetheless, Friedman said he had no reason to believe Mogoeng's appointment was not in the best interests of the Constitution.
Mogoeng started his professional career as a supreme court (now high court) prosecutor in Mafikeng, holding this position between March 1986 and February 1990, when he resigned to undertake pupillage at the Johannesburg Bar. He then practised as an advocate in Johannesburg until the end of 1991. He then terminated his membership of the Johannesburg Bar and became a member of the Mafikeng Bar Association (now known as North West Bar Association) until May 1997. While at the Mafikeng Bar, Mogoeng served as the deputy chairperson of the Bar Council and as the chairperson of the Bophuthatswana chapter of Lawyers for Human Rights. He was also a part-time senior lecturer in criminal law and criminal procedure at the University of the North West's Mafikeng Campus from 1992 to 1993. He was a member of the Industrial Court from 1989 until it ceased to exist. In 1994 he served in the legal section of the Independent Electoral Commission in the North West province. In June 1997 he was appointed a judge of the North West High Court in Mafikeng. He was appointed as a judge of the Labour Appeal Court in April 2000. In October 2002 he was appointed judge president of the North West High Court.
Mogoeng was born in Goo-Mokgatha, north-east of Zeerust on January 14 1961. He graduated from the University of Zululand with a B Juris in 1983. In 1985 he completed his LLB at the University of Natal in Durban. In 1989, he completed his studies at the University of South Africa, where he studied towards a LLM concentrating on labour law, the law of property, the law of insurance, the law of evidence and the law of criminal procedure.
Mogoeng is also an ordained pastor. Prior to joining the judiciary in 1997, Mogoeng also served as chairperson of the North West Parks Board and as chairperson of Golden Leopards Resorts. He was also a member of the Black Lawyers Association. He has since resigned from these positions.
Source: Mail & Guardian
Sunday, October 11, 2009
An opportunity for women missed
One of President Jacob Zuma's preferences for the four vacant seats on the Constitutional Court, North West Judge President Mogoeng wa Mogoeng, refused to comment this week on a DA complaint that he is unfit for the position because of an incident during the time he served on the Truth and Reconciliation Commission's amnesty committee.
DA MP Natasha Michael could not provide precise details, but said that while a member of the amnesty committee, Mogoeng failed to recuse himself in a case in which his wife was the prosecutor. The DA has called for KwaZulu-Natal High Court judge Leona Theron to replace Mogoeng on Zuma's list of proposed Constitutional Court judges. Mogoeng's PA, who refused to give her name, said on Thursday: "Judge Mogoeng told me to say 'no comment'." A further objection is that although Mogoeng has written judgments with constitutional ramifications, he is largely a labour law specialist who previously served in the Labour Court. But even in this area, says Unisa law professor Shadrack Gutto, Labour Court Judge President Ray Zondo -- also a candidate for a Constitutional Court seat -- has stronger credentials.
Judicial Service Commission (JSC) member and leading advocate Dumisa Ntsebeza defended Mogoeng's proposed appointment, saying that Chief Justice Sandile Ngcobo might have influenced the decision. Zuma is known to have consulted Ngcobo. Ngcobo's passion for labour law -- he acted as both Labour Court and Labour Appeal Court head for many years -- might have influenced him. But a source close to the Constitutional Court, who spoke on condition of anonymity, said that Mogoeng's inexperience could create a perception that he is open to influence. Most junior judges sought guidance from senior judges as a matter of course, the source said.
The DA's objection to Mogoeng in part reflects broader criticism that the president’s list does not reflect a commitment to gender equality. Only one judge on Zuma's list of four, Sisi Khampepe, is a woman. Several commentators said that at least two women should replace outgoing judges Yvonne Mokgoro and Kate O'Regan. A female judge of the Supreme Court of Appeal (SCA), Mandisa Maya, had been strongly tipped for the Constitutional Court, but now looks set for a judge president's position, possibly in her native Eastern Cape. Eastern Cape Judge President Cyril Somyalo retires next May. Theron is heavily tipped as the next judge president of KwaZulu-Natal when the incumbent, Vuka Tshabalala, retires next April.
Ntsebeza said that Zuma's decision not to appoint Maya could have been motivated by the need to keep her at the SCA, so as not to "deplete [the] SCA of good people". But he did not dismiss the possibility that she could be heading for a judge president's position. Ntsebeza said he does not see Zuma changing his mind unless there is "strong lobbying" from gender groups. "An opportunity missed" was how Gutto described Zuma's failure to appoint at least two women to South Africa's highest court Gutto said there were legitimate expectations that the president would appoint "two, if not three" females. He believes there is sufficient competence to make such appointments.
It would be "understandable" if Zuma intended to appoint both Maya and Theron to other leadership positions in the judiciary. There was a dearth of female leaders, with Western Cape Deputy Judge President Jeanette Traverso being the most senior woman judge. Although no strong objection was raised to Zuma’s preference for Eastern Cape High Court Judge Johan Froneman, there are some misgivings about Justice Minister Jeff Radebe’s open liking for him at the recent JSC hearings.
Froneman's legal approach has been described as "revolutionary" and he told the hearings that he had caught the "vibe" of the Constitution before others. Ntsebeza lauded him as a progressive judge whom Zuma was certain to confirm. Froneman, who has served on the Labour Court as deputy judge president and has been an acting judge in the SCA, is celebrated for a landmark judgment allowing social-grant recipients to pursue a class action suit against the Eastern Cape government. He first attracted admiring attention for his 1994 judgment in the Qozeleni case, later relied on by the new Constitutional Court under Arthur Chaskalson. In that ruling, handed down while the Constitution was still being negotiated, he used the Ciskei's Bill of Rights to reinforce the principle of equality before the law.
Source: Mail & Guardian
DA MP Natasha Michael could not provide precise details, but said that while a member of the amnesty committee, Mogoeng failed to recuse himself in a case in which his wife was the prosecutor. The DA has called for KwaZulu-Natal High Court judge Leona Theron to replace Mogoeng on Zuma's list of proposed Constitutional Court judges. Mogoeng's PA, who refused to give her name, said on Thursday: "Judge Mogoeng told me to say 'no comment'." A further objection is that although Mogoeng has written judgments with constitutional ramifications, he is largely a labour law specialist who previously served in the Labour Court. But even in this area, says Unisa law professor Shadrack Gutto, Labour Court Judge President Ray Zondo -- also a candidate for a Constitutional Court seat -- has stronger credentials.
Judicial Service Commission (JSC) member and leading advocate Dumisa Ntsebeza defended Mogoeng's proposed appointment, saying that Chief Justice Sandile Ngcobo might have influenced the decision. Zuma is known to have consulted Ngcobo. Ngcobo's passion for labour law -- he acted as both Labour Court and Labour Appeal Court head for many years -- might have influenced him. But a source close to the Constitutional Court, who spoke on condition of anonymity, said that Mogoeng's inexperience could create a perception that he is open to influence. Most junior judges sought guidance from senior judges as a matter of course, the source said.
The DA's objection to Mogoeng in part reflects broader criticism that the president’s list does not reflect a commitment to gender equality. Only one judge on Zuma's list of four, Sisi Khampepe, is a woman. Several commentators said that at least two women should replace outgoing judges Yvonne Mokgoro and Kate O'Regan. A female judge of the Supreme Court of Appeal (SCA), Mandisa Maya, had been strongly tipped for the Constitutional Court, but now looks set for a judge president's position, possibly in her native Eastern Cape. Eastern Cape Judge President Cyril Somyalo retires next May. Theron is heavily tipped as the next judge president of KwaZulu-Natal when the incumbent, Vuka Tshabalala, retires next April.
Ntsebeza said that Zuma's decision not to appoint Maya could have been motivated by the need to keep her at the SCA, so as not to "deplete [the] SCA of good people". But he did not dismiss the possibility that she could be heading for a judge president's position. Ntsebeza said he does not see Zuma changing his mind unless there is "strong lobbying" from gender groups. "An opportunity missed" was how Gutto described Zuma's failure to appoint at least two women to South Africa's highest court Gutto said there were legitimate expectations that the president would appoint "two, if not three" females. He believes there is sufficient competence to make such appointments.
It would be "understandable" if Zuma intended to appoint both Maya and Theron to other leadership positions in the judiciary. There was a dearth of female leaders, with Western Cape Deputy Judge President Jeanette Traverso being the most senior woman judge. Although no strong objection was raised to Zuma’s preference for Eastern Cape High Court Judge Johan Froneman, there are some misgivings about Justice Minister Jeff Radebe’s open liking for him at the recent JSC hearings.
Froneman's legal approach has been described as "revolutionary" and he told the hearings that he had caught the "vibe" of the Constitution before others. Ntsebeza lauded him as a progressive judge whom Zuma was certain to confirm. Froneman, who has served on the Labour Court as deputy judge president and has been an acting judge in the SCA, is celebrated for a landmark judgment allowing social-grant recipients to pursue a class action suit against the Eastern Cape government. He first attracted admiring attention for his 1994 judgment in the Qozeleni case, later relied on by the new Constitutional Court under Arthur Chaskalson. In that ruling, handed down while the Constitution was still being negotiated, he used the Ciskei's Bill of Rights to reinforce the principle of equality before the law.
Source: Mail & Guardian
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