To be championed by the opposition is something of a dubious honour. Sure, it beats being backed by no one at all, but it also — by default — automatically puts you up against the mighty ANC. And, by extension, the wishes of the people.

The opposition's objections to the way in which President Zuma has gone about nominating the next chief justice are not simply the result of a knee-jerk desire to be oppositional. Whether they would have reacted so vehemently, however, had their preferred candidate — Justice Dikgang Moseneke — been nominated, is another matter entirely.

In principle, yes, Zuma's method of 'consultation' is deeply flawed, but this would have been slightly less significant had the opposition concurred with his nomination. It is, perhaps, because he knew that the opposition would not agree with his choice, that Zuma bypassed protocol.

Groomed for the job

Because, despite his assertions to the contrary, it is odd that President Zuma nominated Justice Sandile Ngcobo ahead of Deputy Chief Justice Dikgang Moseneke. It is odd because Justice Ngcobo's stint on the Constitutional Court bench will come to end within two years. But, even more than this, it is odd because Justice Moseneke has been groomed for the job.

As Zuma well knows from his own experience, while holding a 'deputy' position does not entitle automatic succession, it does create that expectation. Furthermore, having filled the position of deputy chief justice since 2005, Justice Moseneke — while perhaps not the most experienced judge on the bench — is the most equipped to take up the duties of the chief justice.

So why did Zuma choose Justice Ngcobo instead?

Those with a propensity to dwell on such matters may argue that Zuma made his choice based on ethnicity — the Zulu Ngcobo trumped the Sotho Moseneke. Some may claim that it is because Moseneke's apartheid-era alliance lay with the PAC and not the ANC. Others may see it as personal payback (or reward) as Justice Ngcobo was the only dissenting voice in the Constitutional Court's majority ruling against Zuma.

But, by far, the most reasonable assumption to make is that Justice Moseneke is paying the price for his commitment to the principle of the independence of the judiciary.

'It's not what the ANC wants'

At the end of 2007, Moseneke sparked the ire of the ANC when he made the following comment at his birthday party: "I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It's not what the ANC wants or what the delegates (at Polokwane) want; it is about what is good for our people."

This is by no means an unorthodox position for a judge to take. Furthermore, it is a sentiment which Moseneke expressed in his interview with the JSC when he was nominated for the position of deputy chief justice. Setting out what his goals as deputy chief justice would be, Moseneke said:

"To make sure that the judiciary is efficient. It does what the Constitution requires it to do and its independence is just simply a 'no go' area. It is uncompromisable (sic). It is a foundation and a cornerstone of democracy so I would make it part of my duty to safeguard that from any quarter a threat might emanate."

Indeed. Even when that quarter is the ruling party.

Without fear, favour or prejudice

It is precisely because of the importance he places in an independent judiciary that Moseneke has been overlooked. Earlier this year Zuma said:

"I think I will be very sensitive (to Moseneke's 2007 comment) and I think that this is the reason why we always say judges should know what they say. You can't just stand up and say I don't care what this ANC and it's the ruling party (sic). You are just declaring war. Why should you say that when you are a judge?"

For the record, you should say 'that' when you are a judge because it is your duty to do so. It is your duty to be impartial and to uphold justice for all without fear, favour or prejudice. This is exactly what Moseneke — knowing full well what it might cost him personally — was willing to do. And that is why he should be entrusted with the custodianship of the country's judiciary.

Justice Ngcobo is, by all means, fit to take up the mantle of chief justice; but Justice Moseneke has, without a doubt, been unfairly overlooked. And, in the process, Jacob Zuma has dented his own credibility.

"I think it is appropriate to say my undisclosed premise as a judge is I hate oppression; I hate inequality; I hate stereotypes; I hate prejudice; I hate unfairness because I have seen that. I have lived that and my pledge, I think, to this nation is I would never fail them on that score.

"I would bring the best of my ability to the fore to protect every single person worthy of protection under the sway of our law in courts and that would be so because it is my own personal article of faith," said Moseneke in his interview with the JSC.

Time and again Moseneke has proved his mettle. He deserves the support of the nation; even if the task of championing his cause has fallen to the opposition.

BRIEF BIOGRAPHY
Born	December 1947
Spouse	Kabo Moseneke
Struggle cred	Arrested at the age of 15, detained and convicted of participating in anti-apartheid activities. Imprisoned on Robben Island for 10 years.
Education	While on Robben Island, Moseneke completed his schooling and his first two degrees: BA in English and Political Science (Unisa) B Iuris (Unisa) LLB (Unisa)
Legal career	1976: started his professional career as an attorney's clerk at Klagbruns Inc in Pretoria. 1978: was admitted as an attorney and practiced for five years as an attorney and partner with Maluleke, Seriti and Moseneke. 1983: was called to the Bar and practised as an advocate in Johannesburg and Pretoria. 1986: appointed visiting fellow and lecturer at Columbia Law School. 1993: elevated to the status of senior counsel. 1993: served on the technical committee that drafted the interim constitution of 1993. 1994: appointed the deputy chairperson of the Independent Electoral Commission. 1994: acting appointment to the Transvaal Provincial Division of the Supreme Court. 1995: left the Bar to pursue a full-time corporate career. 2004: appointed to the bench of the Constitutional Court. 2005: appointed deputy chief justice of South Africa.
Awards	The KWV Award of Excellence The Black Lawyers Association Excellence Award (1993) The Unisa School of Business Leadership Excellence Award (1997) Black Management Forum Empowerment Award (1998) International Trial Lawyer of the Year Award (2000) Soweto Achiever Award (2002) Honorary professorship in Banking Law, Unisa (2002) Honorary professor in the Department of Mercantile Law, Unisa (2004-2006) Doctor of Laws (honoris causa), University of the North Doctor of Commerce (honoris causa), University of Natal Doctor of Technology (honoris causa), Tshwane University of Technology.

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