DA submission to President Jacob Zuma regarding the suitability of Judge Mogoeng Mogoeng for the position of Chief Justice

I have this morning sent President Zuma my submission on the suitability of Justice Mogoeng Mogoeng for the position of Chief Justice. It is my firm view, and that of the Democratic Alliance, that Justice Mogoeng is not suitable for the position. It is our sincere recommendation that President Zuma, in exercising his prerogative to appoint the Chief Justice, withdraw his nomination of Justice Mogoeng and consider other candidates.

The President's office has confirmed just moments ago that President Zuma will avail himself for a meeting tomorrow evening in Pretoria. I am glad that he has acceded to my request of last week, and I will use the opportunity to take the President through our submission in detail.

• We believe that Judge Mogoeng does not possess the outstanding legal skills (as opposed to ‘usual' or ‘adequate') required of a Chief Justice.
• We believe he has, in his history as a Judge, failed to display the unwavering adherence and commitment to the Constitution required of a Chief Justice.
• We believe that he has not shown himself, in his past judgments, to be suitably defensive of the independence of the judiciary.
• We do not believe he enjoys the support, both intellectually and collegially, of the majority of his colleagues on the Constitutional Court, and of the wider legal fraternity.
• Lastly, we do not believe he possesses the requisite administrative, accounting and personnel management skills.

We make this submission today as part of the constitutionally prescribed process of consultation which the President must engage in before appointing a Chief Justice. Since the beginning of the process, it has been our hope, and indeed our experience so far, that the President meant the process to be meaningful and that he earnestly sought the counsel of South Africa's political and legal leaders.

This necessarily means that he has kept open the possibility of changing his nominee, depending on the advice he receives.

Following this weekend's public interview, the Judicial Service Commission (JSC) came to the view, by a majority vote, that Judge Mogoeng is a suitable candidate for the position of Chief Justice. The JSC interpreted its mandate as being limited, from a constitutional perspective, to an assessment as to whether Justice Mogoeng complies with the limited statutory requirements of the position as contained in Section 174 of the Constitution. The JSC accordingly chose not to consider, nor comment on, the relative suitability of Judge Mogoeng compared to either what is to be expected of a person who seeks to fill the position of Chief Justice, or indeed other possible nominees for the position.

Whilst we recognise the role that the JSC has played in this process to date, by its conservative interpretation of its constitutional mandate, its role has been limited in scope and has provided no room for wider comment as to the extent to which this position should be filled by an exceptional candidate, as opposed to one who merely meets the constitutional criteria of qualifying for nomination.

The Constitution differentiates between the JSC and opposition parties in the consultation process. Accordingly we do not view our role in the process as merely akin to that of the JSC. We are of the opinion that in this consultation process we are duty bound to offer counsel to the President on not only whether Justice Mogoeng is a suitable candidate for the position based on the prerequisites of section 174 of the Constitution, but whether he is the best candidate to be the custodian of our cherished Constitution.

It is from this perspective that we disagree with the recommendation of the JSC, and do not agree that Judge Mogoeng is currently the most suitable candidate for the position. 

It is important to note that Judge Mogoeng's nomination has been opposed almost unanimously by the legal fraternity and by civil society. The following organisations have opposed the nomination, in no particular order:

• Johannesburg Bar Council
• Cape Bar Council
• Eastern Cape Society of Advocates
• Law Society of South Africa (did not oppose, but could not support)
• National Association of Democratic Lawyers (NADEL)
• National Forum of Advocates
• Faculty of Law, University of Pretoria
• Wits University School of Law
• Womens Legal Centre - representing Masimanyane Women's Support Centre, Open Democracy Advice Centre, People Opposed to Woman Abuse (POWA), Rape Crisis Cape Town, Tshwaranang Legal Advocacy Centre, UCT Law Race and Gender Unit, UCT Gender Health and Justice Research Unit
• Section 27 -  representing Sonke Gender Justice Network, Lesbian and Gay Equality Project and Treatment Action Campaign
• COSATU
• Congress of the People
• Inkatha Freedom Party
• Independent Democrats
• United Democratic Movement

The following organisations supported the nomination:

• Black Lawyers Association
• KZN Bar Council
• An individual advocate from the North West Bar Council, although the Bar Council itself declined to make a submission. This is noteworthy as Judge Mogoeng served as Judge President of the North West.
• Johannesburg Magistrates Organisation - JOASA
• Four other submissions by individual lawyers

To view the letter I sent to the President this morning, click here.

To view the full document sent to the President regarding the suitability of Judge Mogoeng Mogoeng for the position of Chief Justice, click here.

Statement issued by DA leader, Helen Zille, September 5 2011

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