South Africans – one supposes much like the citizens of other Afro-Asian countries acting out their independence in the 1950’s and 1960’s – think of their country and system of government as “new” – implying a fresh and original start. However, I doubt whether any other “new” country has been so pre-occupied with constitutional issues and debates as South Africa. This is both good and, I suspect, not so good.

For example, last weekend – in other words for a full-day and a half – South Africans who were interested had a ring-side seat – obviously before their own television sets – at the appointment hearing of a new Chief Justice. What an extraordinary experience! – as the Judicial Services Commission debated the suitability or otherwise of President’s Zuma’s highly controversial candidate – Judge Mogoeng Mogoeng – for Chief Justice. In the end a majority of the 23 members (many of them known government supporters) of the JSE approved Judge Mogoeng Mogoeng for the position.

While he might have been President Zuma’s preferred candidate, he does not have much support among constitutional lawyers. In fact, many of my learnered friends believe his appointment is little more than a disaster, that he has neither the intellectual ability nor the legal skills to provide the vision which the third arm of government needs or the strength to maintain the integrity and independence of the judiciary in the face of strong pressure from the other two branches of government – particularly as the South African polity is not the most auspicious environment for constitutionalism.

Speaking for myself, I’ll go along with Business Day which editorialised that Judge Mogoeng had to be given a chance. Wrote the newspaper: “Justice Mogoeng Mogoeng has visited a form of trial-by cross-questioning by the Judicial Services Commission and emerged on the other side if not unscathed, then at least fully intact. .... What the process has revealed is neither a totally disfigured portrait of a Judge nor a totally unblemished one”. So I say with Business Day: “Give Mogoeng a chance.” In any event, he is about to be tested very soon. His willingness and ability in resisting pressure from the executive and maintaining the independence of the judiciary is likely to be tested by three major challenges, all of them with tremendously important bearings on civil liberties in this country.

The first is the Public Protector’s report which was dealt with in the last Insight. The Public Protector is one of the institutions in the constitution intended to strengthen constitutional democracy. We dealt with it in some detail partly for the benefit of international readers but also because in terms of the rule of law, individual and corporate relationships to the state, it is the most important institution in the constitution after the Constitutional Court itself.

As we explained in the previous Insight, the Public Protector is in the news because of certain investigations and decisions which the present Public Protector Advocate Thuli Madonsela has made. She investigated two lease agreements for the police headquarters in Pretoria and Durban, and she found them improper and invalid and her findings implicate police Chief Bheki Cele and Public Works Minister Ms Gwen Mahlangu Nkabinde in wrong-doing. In terms of her functions, she gave the Department of Public Works and the police thirty (30) days to submit action plans to her office and sixty (60) days to implement remedial actions. This has happened to Madonsela’s satisfaction. However, in the original finding she required President Zuma to take appropriate action against the two persons involved – the Police Commissioner and the Minister of Public Works. President Zuma in terms of the law had until Tuesday to respond but failed to do so. The matter was raised by the Opposition in Parliament, and anybody watching the snippet on television would have been ashamed at the ANC and President Zuma’s attitude.

ANC parliamentarians, by constantly describing the Public Protector’s findings as “allegations” and suggesting that parliament has the authority to discuss and amend her report, and President’s Zuma’s failure to respond decisively and expeditiously – he has toyed with Advocate Madonsela – don’t seem to realise the damage that their attitude and actions are doing the constitution and its institutions.

In terms of the constitution, after investigating a matter and reporting it, the Public Protector can take appropriate follow-up action – which includes subpoenas. And Advocate Madonsela, in an address to the Cape Town Press Club this week (Tuesday) said she will do what is necessary. And believe me, aside from having the authority, she is not a person to be taken lightly. So the country could be faced with a major constitutional crisis in this regard.

Secondly, parliament’s approval of the bitterly contested Protection of Information Bill, which is bound to become law before the end of the year is likely to be taken to the constitutional court on grounds that it infringes the constitutional right to freedom of information and expression. This is because it allows the Government wide discretion in classifying state information to be vital to the security of the state and therefore not accessible to the general public and, of course, specifically to journalists.

And the third issue which is already heading to the constitutional court by way of an appeal is a court decision earlier this week declaring the slogan “shoot the boer” (Dubul’ i Bhuma) to be hate speech. The Judge in this matter happens to be white and the main complainant is AfriForum, an Afrikaans civil liberties organisation – factors which ought to be irrelevant but in our highly race conscious society unfortunately are not.

So we will very soon know whether Chief Justice Mogoeng Mogoeng has the ability to lead the court in resisting executive and party political pressure, and ensuring that the constitution is applied as its drafters intended.

PS: We at Omega have ourselves experienced the value of the Public Protector in a conflict which we are having with department of state over a contract for which we tendered and which we believe involved serious irregularities. More about this in a subsequent Insight.