Judiciary: Fact-gathering qualitative assessment

Graham Giles on August 22, 2011 at 6:24 pm

Paul Hoffman is a director of the Institute for Accountability in Southern Africa(www.ifaisa.org) and here are some extracts from the article with kind permission of Business Day.

QUOTES
THE Presidency has been quick to emphasise the length of the experience of the 50-year-old newcomer to the Constitutional Court, whom it favours to succeed retired chief justice Sandile Ngcobo.

It is the quality and nature of the experience and experiences of Mogoeng Mogoeng that ought properly to weigh more heavily than their length.

Serving interminably in a quiet backwater such as Mafikeng is not adequate preparation for the exacting duties that will befall anyone who is the chief justice of SA during the next 10 years.

It ought also to have picked its candidate only after consulting with the Judicial Service Commission (JSC) and leaders of political parties, not before, as has been done yet again, despite the criticism of this modus operandi when chief justice Sandile Ngcobo was appointed by the same president in the same cart-before-the-horse way.

If one conducts a Jutastat search in the South African law reports on the name of the presidential nominee, a disappointing 46 hits emerge, the vast majority of which reflect him as a concurring member of a bench either in the Constitutional Court or the Labour Appeal Court, or in what is now the North West High Court.

This contrasts sharply with the 258 hits that emerge when the name “Moseneke” (Deputy Chief Justice Dikgang Moseneke) is inserted as a similar query in the search engine of Jutastat.

Since his appointment to the Constitutional Court, Mogoeng has written only three judgments for the court and one dissenting judgment of his own in the McBride case 2011 (4) SA 191.

The three unanimous judgments penned by him are Viking Pony 2011 (1) SA 327, Betlane v Shelley Court 2011 (1) SA 388 and Malachi 2010 (6) SA 1.

A reported Labour Appeal Court case in which he actually wrote the judgment could not be found in the South African law reports. There are a few in which he simply concurred in the judgment of a colleague.
His career as a practitioner at the bar is reported as losing counsel twice — 1994 (3) SA 89 and 1994 (2) SA 375, while he was on the winning side once in 1997 (2) SA 423.

There is no evidence that he ever appeared in the Supreme Court of Appeal or the Constitutional Court as counsel, nor does he appear to have taken silk — the North West bar will be able to confirm this.

Only one of his judgments as a high court judge sitting alone is reported, BMW Financial Services 2009 (3) SA 348 — a simple summary judgment application in which he gave leave to defend and then, seven months later, produced a four-pager in which the relevant statute is extensively quoted.

In appeals against judgments for which he is responsible, his decision was confirmed in part by the Constitutional Court in the Chief Lesapo case 2000 (1) SA 409 and held “correct for somewhat different reasons” in the Western Cape government case 2001 (1) SA 500 (CC). In the Union Spinning matter, the full bench of which he was a member was overruled by the Supreme Court of Appeal in 2002 (4) SA 408.

This is not the stuff of which good chief justices of the calibre to which South Africans have become accustomed are usually made, especially not if the Constitutional Court is to become the new apex court in the next few years.

The sad tale of the nominee allowing his wife to prosecute in a criminal appeal before him (also overturned by the Supreme Court of Appeal, but apparently not a reported case) suggests strongly that this young man is not the right person for the job, not yet anyway.

The matter is not urgent. Moseneke is perfectly capable of running the court until a suitable successor to Ngcobo is identified and properly consulted on by the JSC and political parties in a manner that is consistent with the requirements of the constitution.

The way the president is going about the task at hand is destructive of what the constitution sets out to achieve by requiring that an appointment of the chief justice be preceded by consultation.

The folly of the pre-emption of constructive debate in the consultation process caused by deploying the perverse process adopted by the president is demonstrated by the ugliness of the firestorm that has been unleashed.

A constitutionally compliant process does not mean: “Here is my candidate, what do you think?” It involves a fact-gathering and qualitative assessment, after which an appointment follows.

Because the president’s conduct is inconsistent with the constitution, it is invalid and can be struck down as such.

1 Comment

Graham Giles on August 22, 2011 at 6:24 pm

Paul Hoffman is a director of the Institute for Accountability in Southern Africa(www.ifaisa.org) and here are some extracts from the article with kind permission of Business Day.

QUOTES
THE Presidency has been quick to emphasise the length of the experience of the 50-year-old newcomer to the Constitutional Court, whom it favours to succeed retired chief justice Sandile Ngcobo.

It is the quality and nature of the experience and experiences of Mogoeng Mogoeng that ought properly to weigh more heavily than their length.

Serving interminably in a quiet backwater such as Mafikeng is not adequate preparation for the exacting duties that will befall anyone who is the chief justice of SA during the next 10 years.

It ought also to have picked its candidate only after consulting with the Judicial Service Commission (JSC) and leaders of political parties, not before, as has been done yet again, despite the criticism of this modus operandi when chief justice Sandile Ngcobo was appointed by the same president in the same cart-before-the-horse way.

If one conducts a Jutastat search in the South African law reports on the name of the presidential nominee, a disappointing 46 hits emerge, the vast majority of which reflect him as a concurring member of a bench either in the Constitutional Court or the Labour Appeal Court, or in what is now the North West High Court.

This contrasts sharply with the 258 hits that emerge when the name “Moseneke” (Deputy Chief Justice Dikgang Moseneke) is inserted as a similar query in the search engine of Jutastat.

Since his appointment to the Constitutional Court, Mogoeng has written only three judgments for the court and one dissenting judgment of his own in the McBride case 2011 (4) SA 191.

The three unanimous judgments penned by him are Viking Pony 2011 (1) SA 327, Betlane v Shelley Court 2011 (1) SA 388 and Malachi 2010 (6) SA 1.

A reported Labour Appeal Court case in which he actually wrote the judgment could not be found in the South African law reports. There are a few in which he simply concurred in the judgment of a colleague.
His career as a practitioner at the bar is reported as losing counsel twice — 1994 (3) SA 89 and 1994 (2) SA 375, while he was on the winning side once in 1997 (2) SA 423.

There is no evidence that he ever appeared in the Supreme Court of Appeal or the Constitutional Court as counsel, nor does he appear to have taken silk — the North West bar will be able to confirm this.

Only one of his judgments as a high court judge sitting alone is reported, BMW Financial Services 2009 (3) SA 348 — a simple summary judgment application in which he gave leave to defend and then, seven months later, produced a four-pager in which the relevant statute is extensively quoted.

In appeals against judgments for which he is responsible, his decision was confirmed in part by the Constitutional Court in the Chief Lesapo case 2000 (1) SA 409 and held “correct for somewhat different reasons” in the Western Cape government case 2001 (1) SA 500 (CC). In the Union Spinning matter, the full bench of which he was a member was overruled by the Supreme Court of Appeal in 2002 (4) SA 408.

This is not the stuff of which good chief justices of the calibre to which South Africans have become accustomed are usually made, especially not if the Constitutional Court is to become the new apex court in the next few years.

The sad tale of the nominee allowing his wife to prosecute in a criminal appeal before him (also overturned by the Supreme Court of Appeal, but apparently not a reported case) suggests strongly that this young man is not the right person for the job, not yet anyway.

The matter is not urgent. Moseneke is perfectly capable of running the court until a suitable successor to Ngcobo is identified and properly consulted on by the JSC and political parties in a manner that is consistent with the requirements of the constitution.

The way the president is going about the task at hand is destructive of what the constitution sets out to achieve by requiring that an appointment of the chief justice be preceded by consultation.

The folly of the pre-emption of constructive debate in the consultation process caused by deploying the perverse process adopted by the president is demonstrated by the ugliness of the firestorm that has been unleashed.

A constitutionally compliant process does not mean: “Here is my candidate, what do you think?” It involves a fact-gathering and qualitative assessment, after which an appointment follows.

Because the president’s conduct is inconsistent with the constitution, it is invalid and can be struck down as such.

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Judiciary: Fact-gathering qualitative assessment

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