"The people you must fear the most are those who agree with everything you say.”

13 September 2011

Judge Mogoeng Mogoeng is a nice man. Honest and likeable. He has had some years of experience as a judge and his faith is clearly important to him. While some of these traits may be necessary, they are not sufficient for the position of Chief Justice. The reams of criticism against his appalling judgements on rape and capital punishment were grounds enough to disqualify him from the post let alone a nomination. I then watched parts of the hearing on television to see for myself who this guy is and was truly disappointed.

More than being annoyed with Judge Mogoeng’s performance, the Judicial Service Commission’s (JSC) oversight, enraged. As they say, “soort soek soort”. Deeply sceptical about this body, I watched them in action. They are truly frightening. Except for a few courageous members, Ngoako Ramathlodi, Fatima Chothan, Karth Govender, Dumisa Ntsebeza behaved like apparatchiks par excellence. Giving lectures instead of asking probing questions to test the judge’s jurisprudential expertise, Commissioners put their vanities on display.

Van der Merwe, Smuts, Schlemmer, and others (unknown to me) asked the kinds of questions befitting a judicial hearing. Alas our affirmative action-obsessed colleagues failed. Their mission was to protect their candidate with sweetheart questions, aptly articulated by columnist Redi Tlhabi from the Sowetan:

“Jeff Radebe, Ngoako Ramatlhodi and all your sympathisers did not do you any favours by asking you easy, patronising questions. My theory is they did this because they thought you needed protection and were not capable of tackling this task head-on. By treating you like a fragile eggshell all they managed to do was communicate their own lack of confidence in your aptitude and competence. Your supporters should have been the ones grilling you relentlessly about your suitability and trusted that you would survive. A tough task is a chance to show your mettle. And this you did, whether people agree with your judgments or not. I beseech you - the people you must fear the most are those who agree with everything you say.”

This is the nub of the matter. Zuma’s intention was to thrust greatness on an obviously mediocre affirmative action candidate, and it partly explains why he made the nomination. Determined to stick the knife into the Deputy Chief Justice, he deliberately wanted someone junior who was not up to the task and who would forever be beholden to him.

Fortunately, Commissioner, Koos Van Der Merwe, did not disappoint. He cut to the chase and hit the jackpot! “Is it true that you said to a friend that God has chosen you for this job?” So wragtig Judge Mogoeng said “Yes” without a hint of irony - the notion of a secular state way beyond his horizon. Skirting issues left right and centre, it was clear he either did not know the answers or knew he would put his foot into it if he tried. He sank deeper into the mire with his response to the question why he had no track record of publications. “Writing is not my passion” said the Judge. It was like asking a school child why she refuses to do her homework and she responds “because I hate writing.”

A prerequisite for some jobs is writing. One does not have to be a novelist to write about your subject. If that were so many academics would be disqualified.  Shockingly, no one followed up this question. It is simply unacceptable for a judge to say he lacks publications because writing is not his passion. That alone was the surest sign that Zuma wanted a lightweight to occupy the highest office in the land.

Lastly, Judge Mogoeng’s repeated claim that his exposure to such a public hearing was unprecedented, made his eligibility suspect. It may be unprecedented in SA, but not in most civilised democracies where many are subjected to rigorous scrutiny for the whole world to see even if they are presidential nominees. Mogoeng should have welcomed the opportunity to display his expertise in public instead of seeing it as a punitive exercise. Regrettably, openness and transparency are no longer hallmarks of ANC governance.

Having heard the Judge personally, I now more fully understand why we have a Julius Malema, a Bheki Cele, a Siyabonga Cwele, and a whole host of fraudulent Parliamentarians ruling over us. The more unfit and the more improper, the more powerful!