from Africa in Transition

South Africa: Another Political Challenge for Jacob Zuma

September 6, 2011

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Helen Zille, leader of South Africa's opposition Democratic Alliance party, addresses an election rally in Mitchell's Plain township near Cape Town, April 18, 2009. (STR New/Courtesy Reuters)

Zuma’s decision not to meet with Democratic Alliance (DA) opposition leader Helen Zille about his already controversial nominee for the chief justice of the Supreme Court, Mogoeng Mogoeng, is likely to elicit further criticism.

Mogoeng is at present a serving judge on the Constitutional Court of South Africa, formerly a judge president of the North West High Court, and a judge of the Labour Appeals Court. He is also a Pentecostal minister. His critics accuse him of being homophobic, a chauvinist, and that his legal opinions are weak—for a chief justice. Fifty years of age, some see Mogoeng as too young for the job in a society that often equates age with wisdom. In nominating Mogoeng, Zuma jumped over the deputy chief justice who has been critical of him. Some critics see Mogoeng’s appointment as fitting a pattern whereby Zuma appoints the weakest possible candidate to undermine independent agencies of government that he cannot control.

On the other hand, Mogoeng’s defenders see him as the victim of a vicious smear campaign by the largely white-owned press reflecting the views of the business community; that his religion is his own business; and that he has been sympathetic to the rural poor in the Northwest, itself one of the poorest parts of South Africa.

The constitution vests in the president the appointment of the chief justice. But it also requires the president to formally consult with, among others, the parliamentary opposition. The DA objects to Mogoeng’s appointment, and party leader Helen Zille has sent a message to President Zuma outlining the arguments behind the party’s objection. Over the weekend, the press was reporting that she was to meet with Zuma today. However, while the president is reportedly considering the opposition’s written submission, the presidency has now announced that the meeting will not take place.

This is probably a political mistake on Zuma’s part. South Africans are fiercely proud of the independence of the judiciary and the rule of law. While declining to see Zille is certainly not illegal, it would appear to compromise the principle of consultation. Zuma’s office has left open, however, the possibility of a future meeting should the president have questions about the opposition’s position.

Different in so many ways, the recent controversies around ANC youth leader Julius Malema (which I’ve blogged about) and Mogoeng may have this in common. Malema’s economic positions—overthrow of the Botswana government, nationalization of mines, land redistribution--are hot buttons for the white-dominated business community. Similarly, Mogoeng’s alleged homophobia and chauvinism and his Pentecostal rhetoric do not resonate with those who put the rule of law above all else. But over the past decade there has been little improvement in the situation of the country’s black majority. Hence, the calls voiced by Malema and other radicals that the rule of law must be better balanced by righting apartheid’s historic wrongs, even if that violates property rights.

Zuma’s appointment of Mogoeng may be part of his effort to balance his government’s conventional economic policies devoted to open and free markets and property rights with outreach to his party’s largely poor and marginalized constituency. But the business community responds to newly energized radicalism by insisting on the centrality of the constitution and the letter of the law. And Zuma must perform a balancing act.

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