Is Moseneke fit for top judicial Job of Chief Justice of the Constitutional Court ?

     By Bishop Clyde N S Ramalaine on Friday, July 29, 2011 at 2:09pm

               He has shown lack of judgment in the past

 The evolving developments around the extension of the term of service of the Judge President of the Constitutional Court, has been accruing in jolted commentary.

It is now self-evident that an error was committed in the advice extended to the President who had used his discretion informed by a statute which could not prove consistent with constitutional articulation. Such statute enabled the President to apply for the extension of a Judge’s service should such judge have come to the end of his usual term age designation.

At first, Chief Justice Ngcobo relented to the vote of confidence on the part of the President to extent such, but with the legal applications lodged with the Constitutional Court, the Judge surprised all when he announced this past Tuesday to withdraw his acceptance to extend his term for a further five years as requested by the President.

Political parties across the divide were quick of the mark to shower praise and heap honour on the nobility even selflessness of a Judge Ngcobo. They argued he placed the judiciary at the centre in respecting embrace of office. Some hold he did not detract such honour duly bestowed upon the judiciary in presiding over a case in which he was the contestation not for compromise or any violation any ethical code but necessarily to condone a flawed process.

As I pen this note the Constitutional Court’ 57page summation advocates it has ruled unanimously that the extension of the term of the chief justice was inconsistent with the constitution. We had expected such for the process proved flawed, not vindictively but arbitrarily.

The truth is South Africa is soon to have its fourth Chief Justice, for its first was Judge Arthur Chaskalson, followed by a Judge Pius Langa and off course Judge Sandile Ngcobo whose term will run out a fortnight from today. The search for such new Chief Justice had begun in all earnest and the Minister of Justice and Constitutional Development Jeff Radebe has committed that the President will meet the deadline of appointing a Chief Justice by the stipulated time of Judge Ngcobo vacating such lofty post.

There is consensus that Judge Ngcobo proved selfless with his volunteered withdrawal of an earlier accepted request for extension. Those who have made the fight for constitutional adherence and respect their duty namely FUL and CASAC are necessarily satisfied with the findings and respecting the findings. We must concede democracy in constitutional embrace is alive in South Africa today as it always had been for the last 17 years.

The race being an open one warrants questions to be raised as to whether the Deputy Chief Justice Dikgang Moseneke is not entitled to be given the green light. Social comment on Facebook has been running wild in emotional blackmail of the President to appoint Deputy Chief Justice Moseneke as necessary a sign of maturity on the President’s part.

Those who believe that Moseneke necessarily ought to get the nod, argue he has the experience for he had been serving under all three Chief Justices and with such experience, and expertise the Deputy Chief Justice’s appointment should necessarily be a forgone conclusion.

If I heard correctly, according to the Constitutional Law & Process expert Dr. Richard Calland, from UCT, the appointment of the Chief Justice can literally be anyone it need not be necessarily the any serving judge for such is purely the prerogative of the president, which he reaches in consultation with judiciary and the political parties, yet it remains his decision.

I am of the view that those who contend an assumption on the part of the Moseneke Lobby (not that the Deputy Justice has anything to with such lobby), for his appointment as a natural foregone conclusion is necessarily firstly a false attempt at dictating to the President the ambit and context of his jurisdiction. The same without being cognisant of such prerogative extended by section 173 and 174 of the Constitution, as a privilege of the Presidency.

Secondly it is also flawed for it seek to advance the notion if Deputy Chief Justice Moseneke don’t get the nod it would purely be due to his earlier uncalled for political utterances he made at a birthday party during a very troublesome epoch in our post apartheid democratic discourse. The remarks made by Judge Moseneke, the same I am assuming he must often have considered his proverbial Mt. Everest, needs contextualisation as vacillating on two platforms.

Firstly, Judge Moseneke I shall assert failed to read in legal astuteness the office he holds, this does not necessarily mean judges have no right to a political opinion, but it does mean that prudence for such opinion must dictate the meridian of expression.

Secondly the Judge allowed himself to be swayed by his deep convictions on a political matter he necessary had to distance himself from given the prevalence of such mired party political context and the his office’s venerated unbiased expectation.

We must not forget what the Judge said, we can never assume nor infer the state of the Judge when he vocalised his views, for it would be unfair to infer – yet we must understand the context of a birthday party connoting a justifiable assumed relaxed atmosphere.

Judge Moseneke said, “I chose this job carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people”

This necessarily constituted a political view expressed by the Deputy Chief Justice when such simply uncalled for and neither proficient if at all necessary given the office he holds.

This for the record was not the first time the deputy Chief Justice was found offside in failing to discern the requirements of the office he holds.

Thirdly the emotion contained in such opinion is further legitimate prove that there always exists the potentiality of the Deputy Chief Justice in the future prove expressive in an unfortunate sense. This emotional outburst of power, derived from the position when one fails to appreciate the actual context of this office is what I find troublesome.

Fourthly, a need to express one politically is another critical point, which may clout the judge’s interpretation of what is expected from him when he is appointed to serve.  The deputy chief justice is the only sitting Constitutional Judge in the history of constitutional democracy as experienced in South Africa to have warranted a need to express himself on a political matter. We appreciate that Deputy Chief Justice Moseneke comes from a political background as PAC leader, yet such political expression remains unwarranted. This does not mean judges have no right to political opinions but it does mean that prudence about such opinions must dictate the meridian of expression.

The tone and colloquial syntax in the expression of such unfortunate remarks must tell us that Judge Moseneke subtly violated the code of such office in pronouncing out of turn in a heated political context, bearing in mind that the case of Mbeki’s removal could have ultimately served at the Constitutional Court.

In such case would we have to assume the Judge would have proved honourable and unbiased in his participation when he already had shown stake by pronouncing on a political matter in which he cited the possible first respondent or ‘accused’.

We must not forget that Judge Moseneke was a politician and for that matter, he was not an ANC politician. Stating this here is to ask if the Judge has matured to appreciate the distinction between independence of mind/ thought and the interest of the office he holds as sacrosanct by injunction in tandem with the duty for which he was entrusted.  I am deliberately not focusing on experience, skills and expertise for that is not in contention here if he must be considered for the position.

Therefore, if President Zuma opts to give Judge Moseneke the nod, it would be because he has full confidence in the judge to hold the office of the highest court with the necessary dignity and honour such implicitly demands.

Equally, so should President Zuma prefer not to appoint Deputy Judge Moseneke it must not be seen as a punishment ad-in-finitum predicated on a grudge, it would or could be because the President exercised his prerogative.

In concluding it could have helped if the Deputy Justice who singularly in the last 17 years from all in Constitutional Court embrace found the need to express himself politically, had offered more than an explanation but an apology for such behaviour.

In the absence of such apology, which was never captured or covered one may surmise the Deputy Chief Justice as still holding such views, the same I shall contend proved very unfortunate to express oneself on, for it brought the office he holds somewhat in disrepute.

This appointment has little to do with entitlement on the part of the deputy chief justice, it also has little to with vindictiveness on the part of the President it has everything to with the highest office in judiciary being revered by both President and judge in which contestation is not the subject matter but confidence to serve with honour.

The critical issue, as summarized by ANC Secretary General Gwede Mantashe, is that the threat that pronouncements by prominent judges might render government ineffective is fast becoming a reality. All forces that seek to reverse transformation use the courts to effect this.

If judges preside over a case whose outcome is likely to benefit them, do they qualify to queue up for the benefit? Does it mean the principle of conflict of interest is selective?

Then again, what do I know? I am just a preacher and part of the thinking masses

Courtesy of  the published “Through the Prism of My Soul” an anthology of Political Analysis and Commentary


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