Moseneke 'snubbed' for Chief Justice post

And Business Day says it is a snub for Moseneke, calling the nomination a 'chief injustice' and one that suggests concern that Moseneke is regarded as 'too independent' for the post (see report below). Moseneke reportedly angered the ruling party when he remarked shortly before its watershed conference in Polokwane in 2007 that the future of the country did not lie with the delegates at the meeting - where Zuma won control of the ANC - but with the electorate at large. A Mail & Guardian Online report notes that, explaining his choice, Zuma said 'Ngcobo has more experience in that court (than Moseneke). He has been there for a long time. He has very serious credentials in terms of his experience'. The decision, though, is seen in some quarters as a 'stop-gap' (Ngcobo's term expires in 2011), notes Legalbrief - one which leaves ajar the door for Cape Judge President John Hlophe.

Business Day says Zuma hedged his bets and in the process snubbed Moseneke. It points out analysts see Zuma's move as tactical. Appointing Ngcobo gave him time to restore the relationship between the judiciary and the ruling party, which took a battering during Zuma's legal run-ins with the state over his corruption matter. Yesterday, Zuma 'defended his choice', pouring cold water on suggestions that he had overlooked Moseneke. The report says that in the legal fraternity, Ngcobo is regarded as an independent who is not afraid of dissent in judgments. Steven Friedman, of the Universities of Johannesburg and Rhodes, told the paper that while Ngcobo was 'competent' it was a 'pity' that Moseneke was 'overlooked'. 'I regard it as a missed opportunity. Of course, this is not a reflection on Judge Ngcobo, but Moseneke is known to be fiercely independent. He does not come from the ranks of the ruling party and played a leading role in the struggle against apartheid,' Friedman said. Centre for Policy Studies political analyst Aubrey Matshiqi is quoted as saying that 'if continuity at the very top was what was sought, Moseneke would have been the right man. But judging by Zuma's comments some time ago, I suspect the political divide between the Deputy Chief Justice and the President had become too wide'. A report in The Citizen quotes Wits University law academic Kevin Malunga as describing Ngcobo as a 'very capable judge' with a 'skilful mind'. 'It would be difficult to point fingers at Ngcobo,' he said, adding Zuma's move was a 'masterstroke' as it would defuse fears about the appointment of Hlophe. Full report in The Citizen Full Business Day report

Opposition parties expressed regret that Moseneke did not get the post, but nevertheless welcomed the nomination of Ngcobo. IFP Chief Whip Koos van der Merwe said he was 'very surprised that President Zuma did not nominate Deputy Chief Justice Dikgang Moseneke for the post, because he is without doubt the most suitable candidate'. The ACDP echoed the sentiment. Party leader Kenneth Meshoe added: 'We believe what could have led to Moseneke not being appointed was his criticism of the ANC.' Both the IFP and the ACDP nonetheless gave their support to Ngcobo, with the IFP saying it was glad that at least his nomination eliminates Hlophe from the race. DA leader Helen Zille reserved comment, saying as Zuma had to consult opposition leaders about his choice she would speak about it publicly only after talking to the President. The ANC congratulated Ngcobo and praised his human rights track record. Full report on the IoL site

While acknowledging Ngcobo's credentials, a Business Day editorial raises concern about why Zuma passed over Moseneke, who it says should surely have been a shoo-in for the job in the absence of valid reasons why he might be considered unsuitable. It says it is hard to escape the conclusion that his real sin is that he is too independent and therefore unlikely to buckle under political pressure. 'If so, his snubbing is not only an insult to Ngcobo, but will be another warning light to those who were already concerned that the police and prosecuting authority had become too close to the ruling party to be sufficiently objective.' The editorial also notes that Ngcobo was the sole dissenting voice opposing the Constitutional Court's decision to uphold the SCA's ruling legalising the warrants issued for the search of Zuma's premises during his prolonged battle with the prosecuting authority. However, it says that 'this is insufficient basis to assume that he is unduly politically pliable', noting Ngcobo's dissenting judgment may not have won the day, but it was at least legally credible. Full Business Day editorial

Ngcobo's nomination is seen as a 'stop-gap' measure by constitutional law expert Pierre de Vos, who said the appointment left the door open for Hlophe to be appointed in 2011 when Ngcobo's term at the Constitutional Court expires. Asked what would happen in 2011, Zuma said: 'We have appointed him to do the job. When the two years' time comes, we will cross that bridge when we reach the river.' According to a report in The Times, De Vos commended Ngcobo's selection but said he was worried by the uncertainty about what would happen if he steps down in 2011. Zuma has the option of asking him to stay on. Should Hlophe be appointed as a judge in the court, he could be on the inside track to succeed Ngcobo, the report says. Full report in The Times

A report in Die Burger says some commentators have raised eyebrows about the way Zuma took the decision. This, it says, is because the Constitution requires consultation with the JSC and leaders of political parties before the Chief Justice is announced. The Presidency couldn't say whether invitations for such discussions were ever sent out and DA leader Helen Zille said she has had no contact with Zuma on the matter. Full report in Die Burger

Ngcobo, a Fulbright scholar, was appointed to the Constitutional Court in 1999. The JSC had recommended then-Johannesburg High Court Judge Edwin Cameron, but Ngcobo controversially landed the job after the intervention of then-Deputy President Thabo Mbeki, notes a Mail & Guardian Online report. Ngcobo was born in Durban in 1953 and completed his undergraduate BProc studies in 1975, obtaining distinctions in constitutional law, mercantile law and accounting. He was admitted as an attorney six years later, after stints as a clerk and public prosecutor. He spent a year in detention during the 1976 uprisings. At the advent of democracy, Ngcobo served on the newly constituted Independent Electoral Commission. He later took his first permanent position on the Bench in the Cape Provincial Division in 1996, also serving in the Labour Court as acting Judge President. Full Mail & Guardian Online report