Presidency sets record straight on Mogoeng

Thursday, August 18, 2011

Pretoria - The Presidency has expressed disappointment at what it called "inaccuracies and distortions" in the public responses to the nomination of Justice Mogoeng Mogoeng as the country's possible new Chief Justice to succeed Sandile Ngcobo, whose term ended last Sunday.

President Jacob Zuma announced the nomination this week and said he had already written to the Judicial Service Commission and political parties represented in the National Assembly informing them about the decision.

"... Zuma welcomes the debate that has ensued following his nomination of Justice Mogoeng Mogoeng ... however there are disappointing inaccuracies and distortions in the responses and commentary on the nomination of Mogoeng. These need to be addressed without delay to enable the debate to continue based on factual information," Presidential spokesperson Mac Maharaj said in a statement on Thursday.

He was reacting to critics in the media and some in the legal fraternity who said Mogoeng lacked the necessary experience to lead the highest court in the land. Some also questioned whether Mogoeng, at the age of 50, was "fit enough" to be Chief Justice.

Maharaj insisted that 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."

He pointed out that in terms of section 174(1) of the Constitution, any appropriately qualified individual 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".

Maharaj said that the Constitutional Court experience was 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 NGOs. 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," he said.

He went on to say that 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.

Chaskalson's successor, 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 court was established in 1994. He became Deputy Chief Justice in 2001 and Chief Justice in 2005 before his retirement in October 2009.

Maharaj said: "Therefore, at the time of their appointment, both Former Chief Justices Chaskalson and Langa were not judges."

In the case of Ngcobo, he was first appointed as a judge in 1996 and 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.

The country's Deputy Chief Justice, Dikgang Moseneke, who many in the media touted to succeed Ngcobo, became a Judge of the High Court in November 2001 and was appointed to the Constitutional Court a year later.

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.

He 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 Constitutional Court 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 and Justice Johann van der Westhuizen being appointed as a judge in 1999.

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