Blackness not enough for bench: Mogoeng

Chief Justice Mogoeng Mogoeng has warned against “fronting” in the legal profession, saying women and black people aspiring to be judges should have a proven record of dedication to transformation.

Justice Mogoeng gave the inaugural Advocates for Transformation annual lecture, held at the University of the Western Cape on Friday. He is in Cape Town chairing the Judicial Service Commission (JSC) hearings for 19 positions, including the position for the deputy president of the Supreme Court of Appeal and the Judge President of the KwaZulu-Natal division.

But, according to Mogoeng’s own statement before the JSC recently, he did not appear to be much of a champion for the transformation of apartheid laws which he implemented because, as he put it, “it was the law” at the time.

During his two-day JSC interview for the Chief Justice position, Mogoeng came under fire from commissioners and some civil society groups, including Cosatu, for what appeared to be complicity with the apartheid regime when he advocated the death penalty while working as a prosecutor for the then Bophuthatswana government.

“When an urgent application for the stay of execution in the matter came before Theal Stewart CJ, my boss, advocate JJ Smit SC, assigned the duty to oppose the application to me, and I did.

“At the time the death penalty had not yet been abolished. It was the law. The new constitution did not exist. More important (the) Makwanyane (case) had not yet been decided in favour of abolishing the death penalty,” Justice Mogoeng told the commission.

Transformation on the bench has been one of the focal points of the current hearing, with white candidates especially, being grilled on what strides they had made to help transform the profession.

However, Justice Mogoeng said black and women candidates should be looked at as closely.

“If our experience with front-ing in this country is anything to go by, we would be naïve to assume readily that competence or colour pigmentation or gender, without more, would satisfy this constitutional requirement in relation to judicial appointments,” he said.

“If some black people and some women have proved to be willing partners in diverting to the whites and previously advantaged the economic benefits specially packaged for the upliftment of the previously disadvantaged, then potentially the same could happen even within judicial circles if we are not as strict as we ought to be in the selection of judicial officers. Bearing in mind that it is transformation agents we are looking for here, it is not just about colour. It is not just about gender and cannot be.”

On Friday he also lambasted big business, the government and parastatals for repeatedly briefing white senior male counsel assisted by white juniors.

“People often complain about the poor quality of judgments produced by black judges. But that is the fate you are condemning yourself to as South Africans if you continue to maintain these skewed briefing patterns,” he said.

And Justice Mogoeng chastised judges that did not give back to poor communities.

“It should also be a matter of great concern to us when the best among us always have time for prestigious previously advantaged universities, overseas universities and similar engagements, but rarely for those universities previously reserved for black people, and engagements likely to add nothing to their CVs even if they could benefit those that need judicial education. - Sunday Independent