A reputation restored
06 Sep 2011
ON Saturday we witnessed a tough hearing before the Judicial Service Commission for chief justice nominee Judge Mogoeng Mogoeng. Typical of conversations involving legal practitioners, it was at times brutal, abstract and overly laced with ambiguity in the lines of questioning and in the answers given. Regardless of what one's preconceived views about the suitability of Mogoeng for the position of chief justice are, the JSC process has left me with a sense of disappointment and some hope at the same time.
Since Mogoeng was nominated by the president of the republic, Jacob Zuma, a few weeks ago, we have been forced to hear only one version of the situation about both the person nominated and about the process followed. A major campaign was launched mainly through the media about what was perceived to be an attempt by the president to undermine the judiciary by appointing someone so incompetent and unsuitable that he should never have been a judicial officer in the first place. All sorts of evidence was then provided day in and day out to suggest that there was not a single reason Mogoeng deserved to be considered for the position. His judgments, which we are told are either too few or too mundane to quote, were unearthed systematically to drive home this single view.
Only those who would have known something else about Mogoeng could have considered him still suitable after several weeks of incessant analysis against his nomination by legal minds, legal institutions, lawyer associations, the bar, advocacy groups and even political parties. All media portals, including talk shows on radio and television, the press, the Internet and social media were saturated with the same message backed by new pieces of evidence.
The provision of evidence in the form of quotes from some of Mogoeng's judgments helped firm up the sense that he is so homophobic and is such a chauvinist that he is unsuitable to lead the Constitutional Court. Secondly, the analysis suggested that he has very little intellectual capacity to talk of and, therefore, would not be able to provide the necessary leadership to esteemed constitutionalists who sit on this senior court. His religious views were also inferred from his membership of a Pentecostal Church. Of course, someone volunteered a picture of Mogoeng sharing drinks with Zuma years ago when the president had visited the North West in his capacity as the deputy president.
Mogoeng, who has been quiet during all this time, confirming in my mind that he perhaps lacked intellectual capacity and that he had no defence against what had become the truth, used the hearing to launch a spirited refutation of what now seemed like mere allegations, inferences and perceptions of lobbyists than the truth I had come to think they were. I found myself, and I am sure many other open-minded citizens did too, doubting what had been put forward through the media.
It emerged from the hearing that critics had selectively quoted from his judgments, especially parts he would have referred to as mitigating factors and deliberately ignored his comments on aggravating factors, merely to cast him as a homophobe and a chauvinist. It appeared that he has made many more judgments of note than were admitted to by critics. His passion for the poor and the countryside appeared to be a factor in the kinds of cases he chose, cases that are not then deemed quotable. It emerged also that many much younger and much less experienced judges have been appointed to a similar position in countries many critics hold out as paragons of moral standards and excellence. It actually emerged, without any refutation, that Mogoeng is among the most experienced judicial officers currently in the Constitutional Court. By the end of Saturday, Mogoeng came across as a passionate advocate of access to justice, especially for the poor and the marginalised in society, including women and children.
He came across as humble enough to admit his errors and to be willing to learn even more. In that sense, the humanity in him shone brighter. Of course, passion for something is seen in a bad light by some in the judiciary who believe that cold faces and language equal objectivity.
I became worried by what seems to have been such a passionate campaign to discredit and humiliate the nominee that there was no regard for the damage this caused to the judiciary and the dignity of the person. The damage, I think, is big. I was also disturbed by the hurt Mogoeng has endured and how it would impact on his leadership of the court. But I was encouraged by his spirit of generosity and willingness to win sceptics over, even though he admitted that there are some who will never accept. Time will tell.
• Siphamandla Zondi is the executive director of the Institute for Global Dialogue. He writes in his personal capacity.