If there’s one institution still functioning as it should, upholding the values to which our Constitution aspires, and setting the example, it is the judiciary. It is probably the last institution in this country in which people have hope. It produces the last people to which you can point your children and say “be like that person”. This has been a difficult year for judges. Political fights that should be settled in the political domain have come before them. And each time our judges have done the right thing, applied the law, examined the issues, and given their rulings. None has been as important as the Constitutional Court’s ruling on Nkandla. And none of these judges could have done it without the men who lead them, Chief Justice Mogoeng Mogoeng and his recently retired deputy, Dikgang Moseneke. They are the symbol, the breathing embodiment of our judicial system. It is for this reason that they are 2016 South African Person of the Year Runner-up. By STEPHEN GROOTES.
Legal people like to claim that the only difference between humans and animals is the rule of law, a settled set of rules to which we all adhere. It is the only thing between order and “might is right”, between the right to life and lives that would be nasty, brutish and short. They are not wrong. Imagine, for a moment, a situation in which there was no law, no Constitution, and the person who controlled the governing party was really able to do what they would like.
Now, remember who that person is.
It is only the Constitution that has stopped Zuma from getting away with Nkandla, from not instituting martial law, from simply ruling with an iron fist. If that seems melodramatic, don’t think for a second that the thought hasn’t entered his mind. But our Constitution needs people to interpret it, people to rule on it, people to give it force and effect.
It is easy, particularly in this country, to bend before the wind, to wait for the howling to stop, to just wait for it all to be over. It is much harder to stand up straight, to refuse to buckle, and to push back.
This is what Mogoeng Mogoeng’s Constitutional Court has done.
It could be claimed that he and the courts have only done their duty, that they’ve simply judged the cases before them. But what makes him different is that he has been assertive in doing his duty.
The Economic Freedom Fighters had to ask the Constitutional Court for direct access to get them to hear the Nkandla case. Mogoeng would have been well within his rights to defer the case back to the High Court. Instead, he decided there were very real constitutional issues to be decided. And for his critics, he has made life difficult, because in fact the powers of the Public Protector are very much a constitutional issue.
Then there is the power and passion that is in the judgment. Mogoeng and his Court were very aware of the importance of the case, of its public profile and the political issues that it raised. He did not just issue a media summary, or give a terse statement one arbitrary morning. Instead, there was the full theatre of all of the judges of the court striding in, in their green robes, in front of a packed courtroom, the spectacle being beamed across the nation. Then, in tones that only a preacher could muster, came the sermon, the lecture, and finally, the peroration.
It was designed to teach, to educate, to inform. And more fundamentally, it was designed to show right from wrong. And that there is right, and there is wrong. Zuma’s behaviour over Nkandla, all of it, was wrong. We all knew that, but it was Mogoeng who made it official. And he made it official with ringing statements. The Public Protector is the “embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance”.
This is language that everyone understands.
But it was the ticking off, the public lecture, the scolding of Zuma that really caught everyone’s attention.
“The president thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.”
Zuma, throughout his reign, had never been spoken to like that. And he may never be spoken to like that again.
There is a certain irony in this, a sense of a historical circle being closed. Because the first person Zuma spoke to when he was sworn in for his second term as President, in 2014, was… Mogoeng Mogoeng, who led him in his oath.
To this reporter, who was at the Union Buildings that sunny, wintry day, it looked properly rehearsed, that the two men had practiced their lines. And Zuma swore an oath to God that day. Mogoeng took that seriously.
One wonders what they would say to each other now, if they ever had to share the same physical space for a few moments.
It is sometimes forgotten now, because so much has happened, that the immediate impact of the Nkandla judgment was immense. The ANC’s top six when into immediate conclave, rumours abounded of a special NEC meeting. A day later, on a Friday evening, the Presidency announced that Zuma would address the nation. The last time he had done that had been to announce that over 80 of our fellow citizens had died during the church building collapse in Nigeria. Then, an announcement that the ANC would have a press conference an hour later.
Journalists went into furious activity, senior ANC leaders didn’t seem to know what was going to happen. For the first time, Zuma looked really, really vulnerable – it looked, almost, as if he was going to resign.
Of course, being the man he is, he did not. Instead, he raised our hopes, and then dashed them.
But his live broadcast was a disaster from start to finish. His opening – “Are we ready?” he said as he approached the podium – was late. It was the moment that he sort of apologised that we knew this man was going nowhere.
What made it all so disappointing was that it was so obvious he did not believe what he was saying – he wasn’t sorry at all. All he was doing was something he had to do. It was a purely political act, entirely devoid of meaning for him personally.
You could argue, at this point, that Mogoeng’s ruling was entirely useless, that it did not have the effect that was intended. But that would be to presume Mogoeng was trying to force Zuma out of office. He wasn’t. He was simply applying the law, and it was part of a much longer process. The roots of this may well lie with Mogoeng’s appointment, the ruckus over it, the fact that he was obviously stung by the criticism he faced (including criticism from this very reporter). Mogoeng had already had to lead the judiciary through the moment when government, obviously acting on Zuma’s explicit orders, had deliberately disobeyed a court ruling, and allowed Omar al-Bashir to leave the country.
Everyone has a constituency – part of Mogoeng’s constituency is other judges. He would have been well aware of how important it was for him to lead them. And this he did, through a highly public meeting of the “heads of courts” and then, through a meeting with Zuma. By the time Nkandla came around, he would have been well aware of the complete lack of respect Zuma would have for a court judgment. Which may be why he went so all out in this ruling, in the detail, the use of divine language.
After the Nkandla ruling there were many calls for those who had criticised Mogoeng’s appointment to apologise. This is not necessarily rational, it would be a mistake to “apologise” for criticism just because a judge has made one ruling with which you happen to agree.
But we must also consider Mogoeng’s other behaviour. It is not just leading the judiciary through the Bashir saga, his public comments, his occasional speeches, that have left no one in any doubt about where he stands, and of his passion for this country. The case of the “SABC Eight”, the journalists who’ve asked for direct access to his court, has been kept alive, partly perhaps, to use as a stick against Hlaudi Motsoneng, should it become necessary. It could just have been referred to a lower court, but has not been. This suggests that Mogoeng is very aware of the power of his office, and of how it can be used.
And there is the symbolism of his actions. The Nkandla ruling is proof that the rule of law prevails in this country. A few months later, the CEO of Sibanye Gold, Neal Froneman, said in an interview with Bloomberg that Zuma “had to go” for the good of the country. In that same interview he was asked if he was not worried about retribution for his comments, that government could use its regulatory powers to strike back at him. He said that the legal system still works, and “we can rely on it, in terms of companies. If there is any retribution, we’ll deal with it”. He would not have been able to say that without Mogoeng, and the Nkandla judgment.
And another mining boss, Sipho Pityana, would have found it very difficult to create and lead Save SA without that same legal system, and without that same symbol.
When the history of this sad, tawdry and pathetic time in our lives is written, there will be a few main villains. But there will also be heroes, people who stood up for what they believed in. People who did what was right. People who reminded us that there is right, and there is wrong. And that you can always choose, you can always decide whether you are going to do right, or do wrong.
Among those heroes will be Mogoeng Mogoeng, Dikgang Moseneke and the Constitutional Court of South Africa. DM
Photo: Then Deputy Chief Justice Dikgang Moseneke congratulates Chief Justice Mogoeng Mogoeng on his appointment as the new Chief Justice in the Constitutional Court of South Africa, 8 Sept 2011. (GCIS)
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