Legalbrief | your legal news hub Monday 27 September 2021 Moseneke not available for CJ job Deputy Chief Justice Dikgang Moseneke has told the JSC his is not available for consideration for the vacant position of Chief Justice - not now or in the future, writes Legalbrief. According to a report in the Sunday Times, Moseneke, who chaired the commission's deliberations on the appointment of the new Chief Justice at the weekend, told commissioners during a closed session that he preferred to serve out the remainder of his term. In his statement at the meeting in Cape Town, Moseneke said he felt honoured by those who saw him as a suitable candidate to lead the judiciary, but that he was not available for the job. 'Let me make it clear that as much as I consider it an honour to be thought of as a potential nominee for the position of Chief Justice, I have never solicited or accepted any nomination and I am not available to accept nomination whatever its source, now or after the deliberations of this commission. Therefore, I am neither a hopeful, nor a nominee or a contender past or future for the position of chief justice.' The paper claims to have been told by a source close to Moseneke that the respected jurist felt uncomfortable with the whole debate being personalised around him, and with different parties nominating him outside of the proper process. Full Sunday Times report The JSC will not call for further nominations for the Chief Justice's post other than President Jacob Zuma's nomination, Judge Mogoeng Mogoeng. There had been 'lengthy deliberations' and a 'secret ballot' and the majority of the commission had decided they would not call for further nominations, JSC spokesperson CP Fourie said, according to a report on the Mail & Guardian Online site. 'The JSC deliberated on whether it would call for further nominations other than that made by the President and resolved by a majority that it is neither permissible nor desirable to do so. The JSC will convene a meeting to which it will invite the nominee of the President to submit to an interview for the purpose of determining the suitability of that candidate to be appointed as Chief Justice,' he said. 'The proposed date for the public interview is Saturday, 3 September, in Cape Town.' The JSC will also invite various law bodies to make written submissions on the Mogoeng's suitability for the position. These include the General Council of the Bar, the Law Society, the Magistrates Association and the Department of justice and Constitutional Development. Full Mail & Guardian On line report See also a report in Die Burger The JSC's decision has been questioned by the Freedom Front Plus and the Institute for Accountability in Southern Africa, according to a Business Day report. The institute's director, Paul Hoffman SC, reportedly told the paper the commission's decision not to call for additional nominations was the wrong interpretation of the Constitution. The Constitution states that the President, after consulting with the commission and leaders of the parties represented in the National Assembly, appoints the Chief Justice. Hoffman said Zuma should have called for nominations and then proceeded to make a choice. 'In a multiparty democracy; this does not mean that the President should nominate the candidate and that political parties and the commission agree with his choice,' Hoffman is quoted as saying. The Freedom Front Plus yesterday requested Zuma to submit more names for consideration. Pieter Mulder, the party's leader, said the Constitution states a requirement of the appointment of a new Chief Justice is that leaders of opposition parties be consulted when such an appointment is made. Full Business Day report DA justice spokesperson, Dene Smuts, said the party would only comment on Mogoeng's nomination when DA leader Helen Zille gave Zuma her reply on Mogoeng's suitability for the position and after the JSC has had an opportunity to interview the nominee. The DA has also called for the Mogoeng interview to be public, notes a report on the News24 site. Other opposition parties have strongly opposed Mogoeng's nomination on the grounds that he lacks the necessary experience, especially on constitutional issues. And, according to a second report on the News24 site, AfriForum says it will seek legal opinion on the constitutionality of the process followed by Zuma in announcing his nomination. First report on the News24 site Second report on the News24 site Mogoeng has the support of a colleague. One of the arguments being used against his appointment - that he failed to recuse himself even though his wife, Mmaphefo Mogoeng, was a state attorney in a matter before him, is challenged by long-time colleague and current North West Judge President Monica Leeuw in an article (Judging the judge) in the Sunday Times. She is quoted as saying: 'He didn't see anything wrong (with his wife appearing before him), especially because he wasn't presiding alone; he was with a colleague and it has happened in the Constitutional Court. He used that as his guide. Chief Justice Arthur Chaskalson's son (Matthew) appeared on several occasions before his father. It's family isn't it?' Judging the judge report Mogoeng's religious beliefs are the subject of an article in Rapport, which says that if he believes what his church preaches, he will be in conflict with the Constitution. It says the Winners Chapel International church believes homosexuality is a perversion and members can buy the Bishop's book on how to get divine deliverance from it. The church was founded and is guided by Nigerian Bishop David Oyedepo, says the report. It believes in faith-healing for various diseases and has published the testimony of a man whose prayers it claims brought a baby into the world after the mother had been pregnant for five years and seven months, but was unable to deliver the child. Mogoeng delivers 'pastoral services' for the church, but does not preach, church leaders said. Paul Hoffman, of the Institute for Accountability in Southern Africa, is quoted as saying Mogoeng's religious convictions raise the possibility of a conflict between church, state and the Bench. 'What will happen if he feels his religion convictions are more important than his work?' Full report in Rapport Another Mogoeng judgment has received media attention. Rapport and City Press have highlighted an unreported judgment in the North West High Court in which Mogoeng, reviewing the case of a woman brutally assaulted by her boyfriend, reduced the man's sentence. The woman was tied to a vehicle with wire and dragged at a 'fairly high speed' behind the car for some 50 metres on a gravel road. The papers say that after hearing the matter on review in 2001, Mogoeng held that the two years sentence of Eric Mathibe was 'too harsh by any standards', noting, among other things, that he had been 'provoked' by the complainant. Mogoeng noted the complainant did not sustain 'serious injuries'. She had several abrasions on her stomach, right leg and both knees. The victim was in pain, but Mathibe refused to let her have medical treatment on the day of the incident. He took her to consult a doctor the following day. The trial magistrate defended the sentence by saying assault on women was a problem in the district and that the crime was 'barbaric and ancient'. Mogoeng changed the effective sentence to a fine of R2 000. Full report in Rapport Full report in City Press Mogoeng's first case if appointed could be the decision over the independent arms deal contract inquiry, says a report on The New Age site. It notes Terry Crawford-Browne's application to the Constitutional Court is set to be heard in front of a full Bench of judges on 20 September. The report says Mogoeng's detractors will closely follow proceedings when the court decides on the application, which may open up a political can of worms if President Jacob Zuma is forced to appoint a commission of inquiry into the arms deals that took place in 1999. Zuma is opposing the application. While the decision on Crawford-Browne's application will not rest solely with Mogoeng, legal experts have questioned Mogoeng's independence and whether he can take decisions against the executive. Full report on The New Age site .