Ngcobo a bad choice for chief justice

In the run up to the ANC Polokwane conference in December 2007, Jacob Zuma’s fervent supporters demanded that as deputy president of the ANC he was Thabo Mbeki’s natural successor. The ANC constitution is silent on succession but it has been accepted practice that the deputy is the natural successor. Zuma had criss-crossed the country moaning to anyone who cared to listen that there was a conspiracy to prevent him from being president. There was a sense of entitlement on Zuma’s part and he saw himself as the anointed one! Polokwane came and went and Zuma became president despite serious allegations of corruption hanging over his head.

There has been a concerted effort by Cape Judge President John Hlophe’s supporters to see him appointed as the successor to outgoing Chief Justice Pius Langa. Hlophe appears to have adopted the absurd yet successful Zuma strategy of claiming there is a conspiracy against him in order to draw on the sympathies of those who may be persuaded he is being treated unfairly. Hlophe is a controversial character and that alone should be enough to disqualify him as a judge, never mind his aspirations to be chief justice. The position of judge should be occupied by a person of unquestionable integrity and standing.

The farcical “nomination” of Justice Sandile Ngcobo was a welcome relief to many who did not want Hlophe. Hlophe in 2005 was accused of having said that he allocated an Afrikaans language-rights case to senior Cape High Court Judge Wilfred Thring “because I knew he would fuck up the trial and then it could be set right on appeal”. He was further accused of calling a Cape Town attorney, Joshua Greeff, a “piece of white shit who is not fit to walk in the corridors of the high court”. And we all know of the Oasis scandal!

The president is enjoined by the Constitution to appoint the chief justice and it is not inconceivable that Zuma may appoint Hlophe as chief justice to succeed Ngcobo after two years when his term ends. Zuma’s appointments should be viewed in the context of untested allegations of corruption against him. He has already ensured that other law-enforcement agencies are headed by his sycophants, from the ministry of police and national police commissioner, to the Directorate for Priority Crime Investigations (The Hawks) and the minister of justice. It is expected that he is determined to appoint yet another apologist and sympathiser to head the National Prosecuting Authority.

The Minister of Justice Jeff Radebe has been tasked with driving transformation in the judiciary, which we can read to mean the further appointment of judges who are sympathetic to Zuma and the ANC. Therefore the appointment of Hlophe as chief justice in two years’ time would be in line with the ANC agenda to ensure that no criminal charges are ever visited upon Zuma when he leaves office. Ngcobo, though a respected judge with an outstanding track record, may be viewed with some suspicion given his dissenting judgment in the matter relating to Zuma and Thint. Of the 11 Constitutional Court judges, he was the only one to rule in Zuma’s favour. This raises the question of whether there had been any other considerations for arriving at such a completely different determination to the other judges. It is quite a coincidence that the same judge who ruled in Zuma’s favour would be the “nominee” for the position of chief justice.

The logical person to succeed Chief Justice Pius Langa is Deputy Chief Justice Dikgang Moseneke who has occupied this position since 2005. Moseneke is a man of incontrovertible integrity and has upheld the principle of justice and respected the position he holds as a judge and deputy chief justice of the Constitutional Court. He is not viewed with much adoration by Zuma’s henchmen from Luthuli House precisely because of his independence and integrity. At his 60th birthday before the ANC Polokwane conference he was reported to have remarked: “I chose this job very 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.”

He was vilified by the ANC, ANCYL and Cosatu for honestly expressing what should be guiding a person occupying such a position as his in the judiciary — independence and pursuit of justice. The ANC national working committee, which Zuma is part of, came out with guns blazing and accused Moseneke of showing disdain for the ANC delegates at the conference and that his statement highlighted “the difficulty that many in the judiciary appear to have in shedding their historical leanings and political orientation”.

It appears that Moseneke’s cardinal sin was to be a man of honour and integrity, a guardian of equitable justice and that may certainly count against him. Zuma should in fact appoint him as chief justice precisely because he is impartial. Zuma should apply the same principle he invoked to have himself elected as president of the ANC. Tradition dictates that the deputy chief justice succeeds the chief justice.

Though Zuma is quoted as saying he had “appointed” Ngcobo as chief justice, which would have been unconstitutional as due process in terms of the Constitution had not been followed, he has subsequently denied having made an “appointment”. Interestingly, the ANC immediately released a statement congratulating Ngcobo on his appointment. It may be a forgone conclusion that Ngcobo will be the next chief justice but it is not late for sense at Luthuli House, which now appears to be the seat of government, to prevail.

There is a strong case for Moseneke to be chief justice and he should if the Constitutional Court is to maintain the trust and respect it enjoys from the public.