Stephen, I have always respected your political analyses and your grasp of the South African political landscape. So, you can imagine my disappointment when I read your tirade against Mogoeng Mogoeng, the chief justice (CJ), in a respected publication that we both write for. I could not help but conclude that this was nothing but a piece of self-justifying nonsense. Self-justifying, because you were among the first people to criticise the appointment of the CJ a decade ago and you predicted that he was going to fail on the “altar of political convenience” – the reason you say he was appointed.

Chief Justice Mogoeng’s freedom of speech could cost lives – a terrifying and yet not surprising final act

You fail to admit that you were wrong about saying that then president Jacob Zuma had appointed him for “nefarious reasons” and about your assumption that he was somehow part of a dark, under-the-covers, State Capture scheme. All you need to do, after 10 years of his tenure, is to acknowledge that he has proved you wrong. Instead, you have tried, desperately, to discount all the evidence of his independence by somehow “proving” that it was “not really his views that made him seem so independent”.

I am sad to say: this is a bare-faced lie and you know it. You spent a lot of time in your article trying to prevent the CJ from taking advantage of the same freedoms that allow you to write such drivel about him.

Your argument states, in summary, that during a pandemic, like in a war, we must all defer to the government and not say anything that may cause panic (and death). So, if the CJ believes that a vaccine may be harmful, he must keep quiet in the interests of the “broader good” (as you quote him, out of context, in one of his judgments). He must keep quiet in case he offends those who are working to save lives. This attitude is not genuine. When the pandemic set in, some of us warned that the large scale, and emergency purchase of PPE would result in corruption and stealing under the guise of “necessary emergency deviations”.

Some people argued, as you are doing now, that we have to focus on enough PPE being given to frontline workers and that we should not be questioning the procurement process – thereby delaying it, which may cost lives. We all know what has been happening behind the scenes. Politicians were stealing in the face of people who are dying while hiding behind the exigencies of a pandemic. A pandemic does not suspend our freedom of thought, Stephen. You have not slowed down holding the government to account because of the lockdown. 

So, when the CJ raises a flag in a prayer that any bad vaccine must not see the light of day, in your well-considered view, this may cost lives. By extension, therefore, he need not question why South Africa has not made a deal with a South African-based company that wants to provide vaccines. He must not question why African countries will be last in line, even when they were first in the vaccine trials… because, this may cost lives: by the West, you suggest, may choose to marginalise Africa if it is questioned. So, the CJ must just shut up and keep his views to himself. 

You have a serious nerve, Stephen, to lecture the CJ on where and when to pray – and how to exercise his freedom of expression. Even in some of the most oppressive of regimes, people are at least allowed to pray in public. You go on to lecture him about when and where to speak in his personal capacity. Politicians do that all the time in Parliament. In fact, you stand out among those who argued in support of the correctness of people voting Zuma out of office by following their consciences, thus exercising their individual freedom – outside of them being members of Parliament of a particular parliamentary caucus. 

This is hypocrisy. Please don’t get me wrong. The CJ can be questioned like everyone else, but you chose the wrong issue to prove your theory that he was going to fail as chief justice – a theory that you rather arrogantly rushed to express prematurely. That, frankly, is shameful. 

Let’s deal with just a few of your contentious engagements:

Mogoeng failed to lead the judiciary against the executive

Using some poor examples, you conclude that the chief justice has failed to lead the judiciary. You discount the meeting that he called between the executive and the president. You forget, rather quickly, that you had in fact praised him when he called this meeting back then, “as someone who was not expected to do that”. Having followed your work closely over the years, I know I am not mistaken about this. For example, the flight of Omar al-Bashir has everything to do with a lawless executive and not with the chief justice. You are not suggesting to us what he could possibly have done without being accused of interference by his colleagues. Your example is dishonest. The CJ has indeed castigated the executive in numerous judgments and without fear or favour in, my humble view. One of the starkest examples, which you have ignored, was how he was not afraid to castigate Minister Bathabile Dlamini during the social grants fiasco. I would be very surprised if you did not praise him for it when it happened. Unless, of course, you are still harbouring bitterness, because he has turned out not to be the political puppet you predicted him to be.

The Nkandla example: pure lies from your side, truly. To argue that somehow he was a mere “reader of the judgment” and that these were not really his views, is simply not true. Mogoeng has never shied away from being a minority judge, as we have seen in several cases involving the executive. How you pick which cases “he didn’t really believe in” and “where he was a mere frontman”, baffles me completely. You can’t produce a judge who can back up your hyperbolic claim that the CJ has failed to lead the judiciary and that his colleagues do not look up to him for leadership.  

He is only speaking out now that Zuma is no more

Sorry, but this is yet another lie. Early in his tenure he spoke out strongly against corruption on the different platforms where he was a public speaker. He is a CJ who is not afraid to speak out on numerous social issues, both outside his chambers, and in his courtrooms. He even got into trouble, within months of his appointment, about his religious views – views that you seem to think he must be apologetic for.

When he was appointed, he made no bones about the fact that he sees this as a calling from his God. At no point did he mute this. Your example that he supported gays and lesbians as proof that he muted this belief system is twisted logic. It certainly does not prove your theory that his religious beliefs interfere with the fact that he protects a secular Constitution. There are many religious people who are not homophobes – just in case you have not come across them. He is most certainly one of them, or he would not be worthy of being the custodian of our Constitution, which, like the Bible, actually says there are no Jews or Gentiles – but that all are created in God’s image.

And so you are telling a lie by saying he is only speaking out now. Go and read his judgments during the Zuma era and you will see that he has never wavered from doing his job properly. 

Read his speeches in the time Zuma was president and tell me whether you can sustain the argument that he has only started speaking out now. In a long-ranging, two-hour interview I conducted with the CJ at Power 987 at the height of the Zuma presidency in 2017, he spoke out strongly on issues of landlessness, for example. And long before the ANC got its act together on this issue, he spoke out about the independence of the judiciary and propagated for the establishment of an independent secretariat for the judiciary. This was when Zuma was still very much in charge. Your assertion that he is speaking out only now is untrue.

 He is reverting to his ‘primary identity’

I think you meant to left-hook this statement as an insult to an accomplished jurist. After all the work that he has done to make the judiciary a bulwark against corruption, you believe that his primary evaluation must be based on his religious beliefs and not on his judicial competence. You – Stephen – have fabricated this false dichotomy and you are using it to ridicule his religious beliefs. You are using it to explain why you say that he has failed to understand the gravitas of his office. You have decided to take his utterances about “consequences” totally out of context and to ridicule them. You know very well what he meant – that he will not be silenced by powerful forces, who would rather have him shut up.

I respect your right to opine about public servants. At the same time, though, you need to respect the freedoms we have fought for and to understand that these public servants also have a right to enjoy them. 

The justices who are Muslims don’t sit in courts at 1pm on a Friday because they choose to express their religion that way. I have not heard anyone insist they come to work at that time – we are a religious-tolerant society, in case you have not noticed (which, I am sad to say, seems to be the case). 

Our Parliament starts with prayer or silent meditation – in public. So, it’s okay for politicians to pray publicly, but not for the chief justice! Our national anthem calls on God to bless Africa – publicly, we have never been ones to shy away from our faith and we embrace religious practices in broad daylight. But, today, someone with your vaunted “savvy” calls on me to pray in private! Is that because you might not like what I am praying for? You can’t possibly be serious.

The CJ is against vaccination 

Your piece assumes that the CJ is against vaccination and you lament that he uses his faith to “fudge” this – and, so, you say it is hard to engage with him. It should be because he has never said he is against it – he has argued, correctly, that this should be voluntary and that bad vaccines (and I am sure you will agree they are possible) must not see the light of day. I don’t see how anyone can disagree with this. 

How this call is comparable to the opposition against ARVs is beyond me. ARVs save lives, but they are neither a cure, nor are they perfect. They are not above criticism as a form of creating life-long dependencies. Scientific and public discussion about their efficacy has not been banned; hence they have kept on being improved over the years. Your analogy with the terrible HIV/Aids dithering feels like a desperate attempt to paint the CJ in a bad light. You fail dismally.

The CJ has been one of the best officers of the court that we could have been blessed with as a country. Under his stewardship, the judiciary has been the last line of defence for our country that has been stolen by both business and politics. 

He is not perfect. Who is? But he deserves a lot more slack from you, Stephen, especially if you could grasp how much the rule of law is under threat. You have a right to be sceptical about any public appointment and a right to your own predictions and assessment of their performance. But, please, please have the decency to admit when you are proved wrong and do not fake evidence to fulfil your doomsday prophecies.

Your piece, that ends by calling the CJ immoral, is highly patronising. You are wrong about Mogoeng and you chose the wrong example and time to try to influence us.

Yours sincerely, 

Dr Onkgopotse JJ Tabane 

PS: I would be happy to debate this issue with you on your radio show, should you wish to do so. DM