Lawson Naidoo, the Executive Secretary of the Council for the Advancement for the South African Constitution (Casac), says the transcripts of the deliberations over who should be nominated to the Constitutional Court (ConCourt) reveal that the nominees were all on a ‘pre-selected list’ produced by Chief Justice Mogoeng Mogoeng.
Mogoeng produced the ‘pre-selected list’ of five of the eight potential candidates: the five he believed should be shortlisted for the two open ConCourt positions. According to transcripts, the Judicial Service Commission (JSC) just went along with it.
Naidoo says those records show ‘that there were no deliberations at all’ and that the entire process, which is a crucial part of the JSC’s constitutionally mandated function to select the best possible candidates, was a ‘sham’.
According to News24 (15 July 2021) Mogoeng ‘never explained how, where, when, why or with whom he had prepared the list. The list itself was never subjected to an examination against any standard. In fact, to this day, we are still in the dark as to why the JSC recommended the people on the list. The deliberations were meant, in part, to answer that question. They do not.’ Naidoo says ‘Mogoeng “egregiously” did not provide any explanation for why he had selected the judges that he listed for potential appointment to the apex court’.
During the hearings Casac and others (including the IRR) slammed Mogoeng for failing to protect the ConCourt candidates – Judges Dhaya Pillay, David Unterhalter and Fayeeza Kathree-Setiloane – from “irrelevant”, “political” and “factional” questions posed by JSC commissioners.
Mogoeng himself politicised Pillay’s interview, after Julius Malema, leader of the Economic Freedom Fighters, accused her of being an “activist judge” and said she was “unfit for office”. Malema’s grounds were her alleged friendship with minister of public enterprises Pravin Gordhan.
Malema shouted at Pillay, “You are no judge and you deserve no high office”, and “If anything, you [are] also factional and belong to Pravin’s faction, and you are pursuing factional battles using the Bench.”
Pillay pointed out that the ruling had not been successfully appealed. She received no support from Mogoeng or the other JSC commissioners.
Commissioner Archibald Nyambi asked why she had refused to accept Zuma’s “sick note” after he failed to attend his corruption trial court appearance, and had issued a suspended warrant of arrest for him.
Nyambi also asked Pillay about claims made by Zuma’s lawyers that she had shown a “lack of empathy and humanity” in how she had dealt with Zuma.
Pillay responded that the sick note had been “altered” and she had conducted herself exactly in the way expected of judges in criminal cases.
Mogoeng did nothing to stop commissioners questioning Pillay about her rulings against Zuma, as well as her friendship with Gordhan.
Naidoo accuses Mogoeng of facilitating a ‘hostile environment’ by appearing to suggest that Gordhan had sought to influence him to appoint her to the Appeal Court in 2016.
Naidoo says that Mogoeng ‘dismissively treats her [Pillay] with silence’. Mogoeng had only this to say about Pillay, who is an acting judge on the ConCourt; “I won’t… say much really. I do not think Judge Pillay should be part of that list. I would leave it to those who want her to be on the list if there are any to substantiate.”
Naidoo says that ‘the JSC strayed far from the JSC’s mandate into naked political character assassination’.
Mogoeng gave no explanation for why he had raised concerns that then-finance minister Gordhan had, during an unrelated meeting, asked him how she had done in her 2016 interview for a position at the Supreme Court of Appeal.
“Is it potentially compromising to judicial independence and impartiality for a minister or a senior politician to be keenly interested in the upward mobility, or to look like he or she is interested in the upward mobility of a judge?”
When Pillay said she was not aware of the interaction, Mogoeng responded: “I believe you”; and Mogoeng acknowledged that Gordhan had simply asked how she had done and did not suggest that he, Mogoeng, should appoint her. So the purpose of the questioning seems irrelevant.
Gordhan released a statement confirming too that he had asked the question at the tail end of a scheduled meeting, and that it was in no way intended to influence any pending decision on Pillay’s nomination to the Appeal Court.
Mogoeng devoted a single page to explaining his choices.
The JSC’s deliberations reveal that most time was devoted to Pillay’s friendship with Gordhan. Naidoo calls this ‘impermissible and unfair, and strayed far from the JSC’s mandate into naked political character assassination’. He then completely shut down the debate.”
Naidoo adds that the conclusion is ‘inescapable’ that it was not part of Mogoeng’s plan to have any discussion about the candidates on his list, who were then backed up by the votes of the JSC commissioners.
Unterhalter is widely respected as one of South Africa’s best legal minds and was nominated for a position at the ConCourt by advocate Tembeka Ngcukaitobi SC. Mogoeng ‘unlawfully invents a rule… that says that a person with less than three years on the Bench cannot be appointed’.
Casac also accused Mogoeng of allowing Unterhalter to be asked ‘inaccurate and irrelevant questions’ about Israel’s relationship with Palestine and the ‘so-called two-state solution’.
The transcripts reveal that Mogoeng, however, described Unterhalter as a very able and a “solid, solid, solid” judge, but added that “he has only just arrived”. “Three years. And I think he can afford to wait. There will be vacancies coming. Let him wait and then we will see at that stage,” he said.
Mogoeng added that the JSC should discourage the “kind of behaviour” where “colleagues wait for as long as they want to in practice, come in and shortly thereafter are elevated not to the second highest court in the land even, but to the highest court in the land”.
Section 174(5) of the Constitution provides that “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.”
Currently nine of the 11 ConCourt judges were judges at the time of their appointment. So Unterhalter does not need to have been a judge to qualify, let alone be a judge of more than three years’ experience in the High Court. So Mogoeng made the requirement up. Was it an act of racism or was he intimidated by or envious of having an intellect like Unterhalter’s on the bench?
His exclusion of advocate Alan Dodson SC was because he “had been out of judicial action” for a long time and, when he did act as a judge, it was at the Land Claims Court, which is a specialised court.
There have been numerous calls, as a result of this debacle, to change the composition of the JSC.
The JSC has 23 members:
- Chief Justice or the Deputy Chief Justice;
- President of the Supreme Court of Appeal;
- Representative for the Judge Presidents;
- Minister of Justice;
- Two representatives from the Bar;
- Two representatives from the attorneys’ profession;
- Members of parliament and the National Council of Provinces – six ANC members;
- The speaker of the National Assembly;
- Representative of minority parties in the National Assembly – the DA, the EFF and the IFP, the EFF;
- One legal academic;
- Four nominees of the President;
- The Judge President of the division which is being interviewed for; and
- A representative of the Premier for that province.
Essentially there are 15 political appointees, who outnumber the professional appointees by eight. There should be no political appointees. The professional appointees have the experience and qualifications to conduct the interviews to interrogate interviewees.
Remember, the politicians on the JSC outnumber the professionals and there are 14 parties in parliament. About half are likely to support the ANC’s choices.
The independence of the judiciary demands that politicians play no role whatsoever in the process. Politicians are unlikely to be lawyers, and may be prone to ignorance and grandstanding. The political domain should have no influence on the judicial.
The appointment of the Judge President also has to be depoliticised. Section 174 (4) of the Constitution empowers the President to appoint the judges of the Constitutional Court from a list submitted by the JSC. The list must contain three names more than the number of vacancies. The same applies to the appointment of the Chief Justice, except the president is not obliged to consult the outgoing Chief Justice.
In 2011 Mogoeng was the appointee as Chief Justice of former President Jacob Zuma. He was extremely controversial: criticism came from the Tripartite Alliance, the media, local and international NGOs, academics and professional legal bodies.
Mogoeng had been appointed to the ConCourt less than two years earlier. He had been a judge in the North West High Court; had a lack of reported judgments; and had failed to recuse himself in a case where his wife had appeared as state prosecutor.
Mogoeng perpetuated myths about rape, indulged in victim-blaming, and was ambivalent about gay rights.
Mogoeng was nominated ahead of the expected appointee, Dikgang Moseneke, who had served on the ConCourt for nine years and as Deputy Chief Justice for six. Mogoeng’s meteoric rise under the Zuma administration raised concerns about his independence.
The JSC’s decision to appoint Mogoeng, together with the partisan conduct of the JSC’s political appointees, suggest that the JSC has been captured by political interests.
This must stop.