A double dose of advice for Mogoeng Mogoeng

By Stephen Grootes 9 September 2011

On Thursday, President Jacob Zuma anointed, sorry, appointed Judge Mogoeng Mogoeng as Chief Justice. It’s been a slightly bumpy ride, but Mogoeng got there in the end. However that little journey is nothing compared to the turbulence that lies ahead. As always, we think a little advice will go a long way. And who better than to dispense than the perennially shy and retiring STEPHEN GROOTES.

Chief Justice. Got a nice ring to it, doesn’t it? It’s grand, imposing, it sort of towers above all the other titles. It’s not like the simple one word “President” which is supposed to sound powerful and often just ends up signifying impotence. It speaks of high office, of being somehow not just first among equals, but actually better than others. Enjoy it. Make a weekend of it. Spend it with your family. Because coming soon is a rather large perfect storm.

The first cold front is going to be your deputy. Deputy Chief Justice Dikgang Moseneke is a big man. He’s huge. Respected, very highly thought of, the man who many would have in your job, with your title. You spoke of your respect for him “as an elder brother…but not as a friend” during your Judicial Service Commission interview. Well, we know that it was tough, but one generally doesn’t tell an elder brother “you don’t have to be sarcastic”. So you need to find a way to make amends. Moseneke is a fair, thoughtful man, he’ll certainly, from what we know of him, accept any private apology you may tender to go with your public one.

At the same time, you need to find a way to publicly signal that you two have made your peace. Bear in mind, you win his respect, you’ll win the respect of people who respect him. But it’s tricky. As judges, you’re supposed to not really speak in public that much. So you will have to think hard. Perhaps you could quote him approvingly in your next speech. Hmmm, maybe not, some people (nasty hacks like myself no doubt) will think you’re just being sarky. Perhaps you need to make some kind of joint speech somewhere. If you were just B-grade celebrities, we’d just arrange for a picture to be taken of the two of you at some upmarket bistro. We can’t do that here, but you get the drift. So, a judicial signal of some type is in order.

I’ll tell you one thing, you deal well with the typhoon that could be about to arrive and you won’t have to worry about gaining his respect, cos you’ll already have it. It’s not the position of Chief Justice in the Constitutional Court that will really give you power. It’s the position of Chair of the Judicial Service Commission that is really going to do it. And there’s nothing like huge power in this country to give you a huge headache.

The Hlophe Hurricane is gearing up again. You know the drill, it’s long, it’s complicated and it matters. And it affects many of your fellow Con Court judges directly. So saddle up. First, say publicly, that you are determined to do the right thing in this case. Then, get as much transparency in the process as you can. You insist that the media is allowed into any hearing that happens and you’ll make loads of new friends. We’re fickle like that. So use that against us. Get us in. Let us watch the process. Make some important points, and you’ll have us all nodding our heads in unison at your brilliance.

And bear in mind that, while Hlophe may look scary, he’s not. Because he has no real political backing, if he ever did, in fact. But check your back. Justice Minister Jeff Radebe is the person to check with by the way. He’ll tell you.

You crack that, you’ll be a hero.

But there’s another pesky group you’ll have to deal with as well. It’s the horrible neo-liberal rainbow flag-waving crowd. The ones who dragged up all those judgments about rape, and who pontificated endlessly about your lack of dissenting judgment in Le Roux vs Steyn. You are going to have to do this quite loudly, almost injudiciously. Firstly, I get that you love the Bible. So do many many other people. You should no longer quote it in judgments. I know. That’s unfair. But that’s just the way it goes sometimes. Secondly, make a speech, in which you talk about why it’s important to protect the rights of everyone. You don’t actually have to go further than you have done already in your interview and in your address on Thursday. But instead of making it sound like a slightly defensive statement, make it a positive, pro-active one.

So speak out against “corrective rapes” and the murders that sometimes accompany them. It’s not hard. You’re a judge, murder is wrong. And it’s not at all odd to speak out against it. But we’ll take notes and make it plain that you’re actually leading on the issue.

Sir, Chief Justice, there is another sad task you have to perform. Just as you have to publicly signal that you and your deputy are on the same page, so you have to signal that you and the person who appointed you are not that close. Again, I know, it sucks. But you have to do it. It’s not that tricky, actually, you say you’ve only met three or four times anyway. The only way you can really do this is through your judgments. Ja, you don’t want to mess too much with that. But just know, in the back of your mind, that if you rule in government’s favour more than three times in a row, people will talk. You can’t stop them. And no one likes to look as if they’re “somebody’s man”. You want to be independent, you must look as if you are at the same time. And the entire country will be following your every word one day when the Protection of Information law case somes your way.

Oh, and one final thing. Enough with the minority dissents, okay? The Con Court needs to look unified. You’re more than welcome to dissent if you agree with another judge on the issue. But if you remain in a minority of one, well, that just won’t look good.

And Chief Justice, you’ve got ten long years ahead of you. So if things go wrong, you’ve got time to make it right. Obviously, a strong start will help. But you will have plenty of time to recover if you misstep.

Good luck! DM


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