Deputy Chief Justice Moseneke opening statement before Judicial Services Commission

August 21, 2011 § Leave a comment

Opening Statement by   at the special meeting of the Judicial Services Commision held in Cape Town, 20 August 2011.

Esteemed members of the Judicial Service Commission (Commission), I thank you for attending this special meeting on such short notice .I welcome you all.

In my capacity as Deputy Chief Justice, I have convened this special meeting at the written request of the President of the Republic of South Africa, His Excellency, Mr Jacob Zuma and in accordance with to the provisions of section 178(7) of the Constitution.  That section provides that if the Chief Justice is unable to serve on the Commission, the Deputy Chief Justice acts as his or her alternate on the Commission.

In a letter to me dated 16 August 2011, the President informs that it is necessary to appoint a new Chief Justice and that in his view “Justice Mogoeng Mogoeng will be a suitable candidate to assume the position of the Chief Justice of the Republic of South Africa”.

The letter records that section 174(3) of the Constitution requires that the President consult, amongst others, with the Commission on the appointment of the Chief Justice.  Pursuant to that provision the President requests the Commission to let him have its views on the suitability of Justice Mogoeng Mogoeng for appointment as Chief Justice.

I caused the letter from the President to be circulated to all members of the Commission.  Responses of some members made it clear that there are differences of opinion on the procedure the Commission must follow when it is consulted by the President as required by section 174(3) of the Constitution.

Thus, this meeting has the singular purpose of determining the procedure to be followed by the JSC when its views are required by the President on the suitability of a nominee he or she intends to appoint as Chief Justice.  Naturally, when the procedure is certain, the time, date and place where the nominee or nominees would submit to an interview have to be fixed.

Before I invite deliberation on this narrow purpose of the meeting, it is proper and necessary that I banish the elephant out of the room.  That elephant is whether I am available to be a nominee or contender or contestant for the position of Chief Justice?

Our country and its people have been exposed to considerable media and public conversations on the nomination of the Chief Justice. Certain media reports have expressed preferences on who the President should nominate.  Of course, that constitutional prerogative vests in the President.

Some organisations have gone further and mentioned me by name as a possible nominee. Others media reports and organisations have purported to nominate me or have said that they would do so if the Commission’s procedure were to permit them.

I thank those within our nation who have shown trust in me and thought that I could serve our country in that crucial position. Equally, I understand and respect the views of those who take a different view.

Let me make it clear that, much as I consider it an honour to be thought of as a potential nominee for the post of Chief Justice of this country, I have never solicited or accepted any nomination and I am not available to accept any nomination, whatever its source, now or after the deliberations of this Commission.  Therefore I am neither a hopeful, nor a nominee or a contender, present or future, for the position of Chief Justice.

In some instances, public speculation nearly suggests that my very life depends on my being appointed Chief Justice.  That is simply not so.  As matters stand, it is a rare privilege to serve my country on its highest Court.  This came after a long and rewarding career, over more than 30 years, as a candidate attorney, attorney, junior counsel, senior counsel, judge of the High Court and later of the Constitutional Court.  I am further honoured to serve as Deputy Chief Justice.  I am indeed prepared to serve on any other court below the Constitutional Court.  I would hope that the usefulness of my contribution on the Court and to the democratic project to create an equal, cohesive and socially just society does not depend on the position I hold or the position I am given or indeed the position I manage to extract for myself.  Every one of us can make a worthy contribution, whatever our position. We need not abandon good sense, the task at hand, or principle in order to get up the ladder of hierarchy or privilege.

If my reckoning is accurate, my term on the Court ends at the end of 2016.  Provided that my will and energy to serve do not wilt, I will continue to serve where I am now, dutifully and in the best sense of a patriotic judge who seeks to make a contribution towards achieving a better life for all.  To accomplish that, I need not be a Chief Justice.

Having cleared the overgrowth, I now invite debate on the issues at hand.

Cape Town, 20 August 2011

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