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FAILURE EVEN BEFORE THE START
2017/07/31
The African National Congress is reputed for churning out lofty documents which they regrettably do not live up to.
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Appointment of Mogoeng Mogoeng as Chief Justice

The United Christian Democratic Party welcomes and supports the President’s choice of Justice Mogoeng Mogoeng as Chief Justice. We have observed the controversial remarks from different sources, political and otherwise with dismay and disappointment. Some went as far as alleging that the President did not follow constitutional precepts in his appointment of Justice Mogoeng.

Section 174(3) of the Constitution grants the power to appoint a chief justice solely and exclusively to the president. The president is further required to consult with leaders of opposition parties represented in the National Assembly and also with the Judicial Services Commission, but the consultation is merely that, a consultation, and not a negotiation, mediation, interview, cross examination of the president’s choice, and it is rather disappointing to observe that those that have projected themselves as constitutional experts, do not seem to understand nor respect the constitution in this instance. Consultation is purely a formal exchange between the parties with the intention of ensuring that essentials have been met.

The president announces his nominee and the consultation follows thereafter and it is not the other way round. It is unfortunate that the space to consult has in this instance been abused to question the president’s capacity in taking such decisions and in the process the implied connotation that Justice Mogoeng Mogoeng is not fit for this position. The author here, has taken the trouble of following the discussion trends on the matter and it seems that most of those that question this nomination are disappointed merely because the choice they had in mind was overlooked, or perhaps they eyed the position themselves. Again, this is sad for they have questioned Justice Mogoeng’s capacity unnecessarily. This essentially means that the president’s integrity is questioned and so is Judge Mogoeng’s.

The pertinent issue is that President Zuma abided by the law in announcing this nomination and thus far has not deviated from the pre-set procedures. Yes, Judge Mogoeng is young, and some add that he is inexperienced, but this is not an issue unheard of.Our very own Justice Arthur Chaskalson had no judicial experience or judgements whatsoever when he was appointed Chief Justice. Experience in constitutional court or matters constitutional is no requirement for the position of Chief Justice.

Some question this nomination because Justice Mogoeng did not recuse himself when his wife had appeared before him as prosecutor in the Dube case. But then again, several times Judge Chaskalson’s son had appeared before him and he never recused himself and this had no bearing on him being Chief Justice, why has this suddenly become important?

If any of the arguments advanced had any weight in them, then they should have been raised when he was appointed a Constitutional Court Judge. And also, what is stopping those opposed to this nomination from asking that Justice Mogoeng’s name be withdrawn as a judge if they deem him unfit? I dare say it is because their arguments are biased and have no legal basis or precedence whatsoever.

The whole saga created has swayed the public from looking objectively at the merits and qualities that Justice Mogoeng brings and what other skills he comes with. As it stands, he has been Judge President of a High Court and no other Constitutional Court judge has the experience of being Judge President, and, of course the general public is not told this. Why? Justice Mogoeng’s intellectual capacity that has seen him climb up to be a High Court Judge, a Judge President, a Constitutional Court Judge are sure to benefit him and the country as he steps up to the challenge of being Chief Justice. We are confident of his calibre and wish him very well.

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