Opinionista Judith February 20 April 2021

It’s open season on SA’s judiciary – and a flawed Chief Justice does not help matters

The judiciary, which has been such an effective bulwark against impunity, is in the line of sight of the powerful. Chief Justice Mogoeng Mogoeng, with his muddled thinking and thin skin, has aided and abetted the meddlers.

Judith February

Judith February is a lawyer and author of ‘Turning and Turning: Exploring the Complexities of South Africa’s Democracy’ (PanMacmillan)

South Africa is in the midst of a perfect storm – and the judiciary is in the eye of that storm.

The context is multi-layered, but central to it is former president Jacob Zuma’s defiance of the Zondo Commission. The matter is now within the remit of the Constitutional Court. Unusually, Chief Justice Mogoeng Mogoeng asked Zuma to submit suggestions as to what kind of sanction he should face for defying the Constitutional Court’s order that he testify at the commission. Perhaps unsurprisingly, in reply, Zuma has taken a sheet out of the old playbook.

In this playbook, the facts become a casualty and conspiracy theories abound. 

The playbook is filled with accusations of racism and then systematically sows disinformation. Any institution which seeks to hold the powerful and corrupt to account is singled out as “biased” or the tool of (white or black) monopoly capital. It matters not that Zuma himself appointed Deputy Chief Justice Raymond Zondo or that as president of the republic he was a central actor at the height of the State Capture project. The playbook of deception pays no heed to deception. It is tired and obvious but sows the inevitable chaos.

Of course for such constitutional vandalism to take place one always needs enablers. Zuma is surrounded by many of them, all keen to save themselves from scrutiny in some way – from Carl Niehaus, Ace Magashule, Jessie Duarte to Tony Yengeni and a raft of others. They are a veritable rogues’ gallery. 

As the ANC increasingly lost its way and the courts became a line of defence against impunity, so the discomfort with the judiciary has increased. 

Anti-constitutional utterances from some within the ANC are not new. This is also worth recalling, if only to indicate the degradation of the ANC itself and the hollow shell it has become.

Let us cast our minds back to 2015, when the High Court in Pretoria ruled that our government’s failure to arrest then Sudanese president Omar al-Bashir was unconstitutional. By the time the judgment was handed down, Bashir had already left the country, yet it was vital to establish that the state is not above the Constitution. The then secretary-general of the ANC, Gwede Mantashe, launched an attack on the courts, citing them as “problematic” and further declaring there were “some sections” of the court system driven by a desire to “create chaos for governance” in South Africa. His deputy, Duarte, followed suit with similar criticisms.

Going even further back, to 2012, the ANC’s Ngoako Ramatlhodi launched a harsh attack on the judiciary while delivering a lecture in honour of 1940s ANC president AB Xuma. Ramatlhodi accused the judiciary of seeking to undermine the executive.

Zuma himself has launched several direct attacks on the judiciary. When he calls the Constitution “their” document, we all know what he is trying to do when he eschews ownership of it. In a world of cheap populism and easy answers, this thinking has gained traction.

And now, as Zuma cocks a snook at the Zondo Commission, it is open season for attacks on the judiciary. 

Last week, the Judicial Service Commission (JSC) started a marathon session to interview 88 candidates over two weeks to fill 31 vacancies at courts including the Constitutional Court, the Supreme Court of Appeal, the Labour Court and other high court divisions, according to the now essential site Judges Matter. 

It is crucial that we hold all politicians, no matter who they are, to the same standards. Had this been a minister Malema, the outrage would probably have been far greater. 

At a time of already heightened tension between the judiciary and the governing ANC and the EFF’s Julius Malema, a few things happened to intensify matters even further. 

First, and quite bizarrely, Chief Justice Mogoeng Mogoeng declared in the JSC interview of Justice Dhaya Pillay that Public Enterprises Minister Pravin Gordhan had met him a few years ago and asked, “How did my friend, Judge Pillay do?”, referencing Judge Pillay’s 2016 JSC interview. 

The Chief Justice, who it must be said has been acting somewhat erratically lately, decided to raise the interaction at this very delicate moment in our country’s politics. 

Perfect storm. 

It would appear untoward for Gordhan to have made the appointment to speak to the Chief Justice (even regarding another matter, as Gordhan has explained) and then to have raised the issue of Judge Pillay. The perception would be that he was trying to influence the appointment process in the future. By the time Gordhan asked the question, Judge Pillay’s candidacy had already been rejected.

To be clear, judges and politicians naturally may have contact. It would be naïve to think their paths might never cross for some reason or another. Former US President Barack Obama famously invited Ruth Bader Ginsburg to the White House for lunch and hoped that he could subtly persuade her to retire. She didn’t of course. 

While Gordhan’s “intervention” may have been somewhat different, for politicians the best route to follow would always be to exercise caution in these interactions. Gordhan ought to have been more circumspect. 

It is crucial that we hold all politicians, no matter who they are, to the same standards. Had this been a minister Malema, the outrage would probably have been far greater. 

The challenge of course is the maverick Chief Justice, who always manages to surprise. The larger point about Mogoeng is that he ought never to have led the highest court in the land. Certainly, from a jurisprudential and intellectual perspective he trails his predecessors by a country mile. And of course one of the greatest travesties of our constitutional democracy is that Justice Dikgang Moseneke was overlooked to head up our apex court. Moseneke’s judicial record speaks for itself and he always possessed the gravitas, temperament and ethical compass to lead the ConCourt. 

But Zuma had other ideas. Those backfired on him and many were pleasantly surprised that Mogoeng held the line against Zuma and for the independence of the court itself. As citizens we should be grateful for the principled stance Mogoeng took in the Nkandla matter for instance. Ironically, while under his leadership the ConCourt may have mostly lost its intellectual heft, it has not succumbed to executive-mindedness. 

Yet, there is something quite rudimentary about some of Mogoeng’s actions and his thinking. His more recent statements on Israel and the efficacy of vaccines have raised eyebrows and a complaint has been brought against him. Mogoeng has of late found it especially difficult to retain judicial distance. His repeated media interviews have caused an awkwardness for their sometimes injudicious soundbites. It does of course cast a light on the role of judges in society and how aloof or apart from it they have to be in order to be (or be perceived to be) dispassionate. 

These recent statements and his handling of the Gordhan issue cast serious doubts on his leadership even as he ends his tenure. But this should not be a surprise to anyone. In his interview for Chief Justice, he showed more than a modicum of religious zeal and inappropriateness in answering the questions put to him. We all remember his reply to MP Koos van der Merwe who asked, “So God wants you to be Chief Justice?”, to which Mogoeng replied, “I think so.” 

That Mogoeng did not interject and object to this line of questioning is revealing and completely untenable. South Africa is a constitutional democracy where freedom of religion is sacrosanct. The undertone in the question was of religious intolerance and an almost casual anti-constitutional sentiment. 

Mogoeng, like all of us, is entitled to his religious beliefs. These should not be pilloried, but the comment in that interview was misplaced and ill-judged. On more than one occasion during that interview one could see just a bit of Mogoeng’s temper flare, as when he told the Deputy Chief Justice, “You don’t have to be sarcastic, Sir.” This was unfortunate and was a rather large hint that Mogoeng was actually not possessed of a judicial temperament.

That he followed in the footsteps of Ismail Mohamed, Arthur Chaskalson and Pius Langa was, to many, a travesty. But Mogoeng was reflective of the slide to mediocrity under Zuma and a deliberate side-lining of the brilliant Moseneke. 

What was brought into stark relief last week is that Mogoeng has also been an ineffective leader of the JSC. It has dragged its heels with regard to the complaint relating to the Judge President of the Western Cape, John Hlophe’s misconduct.

Last week’s JSC hearings were uneven and lacked the thoughtfulness one would expect from a body such as this. 

The JSC is only as strong as its individual members and their commitment to judicial integrity and independence. Its composition is complex and was an attempt by the drafters of our Constitution to ensure transparency and also inclusivity. That many of the individuals on it appear to have a weak grasp of what is required in interviewing potential candidates, makes it difficult for meaningful questions to be asked. These would include serious questions of legal philosophy and interpretation. Being able to engage fully with candidates’ judgments is surely intrinsic to the process? 

Yet, we saw Julius Malema behaving poorly. Further, advocate Griffiths Madonsela SC asked whether a candidate, Lawrence Lever SC’s observation of the Sabbath would interfere with his judicial duties. Lever responded that he doesn’t observe the Sabbath but he has always performed his duties as required and the same would be true for judges of other religious persuasions.

That Mogoeng did not interject and object to this line of questioning is revealing and completely untenable. South Africa is a constitutional democracy where freedom of religion is sacrosanct. The undertone in the question was of religious intolerance and an almost casual anti-constitutional sentiment. 

Added to this, Mogoeng’s own extraordinary revelation about his meeting with Gordhan and that he did nothing about it until he made the surprising comment in Judge Pillay’s interviews suggests he has fully lost his way. His questioning of Judge Piet Koen, a candidate for the Supreme Court of Appeal, was thin-skinned and overtly personalised. 

So, the poorly handled JSC interview process seems to call for a greater understanding within the JSC itself about the role of judges, how they craft judgments and what independence of mind actually means. The law is a complex animal and it is dangerous, as was the case in Judge Pillay’s interview, to make assumptions about the basis of a judgment on a superficial analysis of both the facts and the law. It leads to clumsy conclusions. More than that, however, it was Mogoeng’s failure to halt the intemperate questions by Malema to Judge Pillay that caused the interview process to descend into a farce. 

“I am going to argue in a closed session that you are nothing but a political activist. You are no judge, and you deserve no high office,” Malema said. 

This was a rant unbecoming of a JSC member. Mogoeng as chair cosied into this unholy alliance with Malema and other ANC MPs.

As it happened – and not surprisingly given how the week went – Judge Pillay did not make the short-list for a ConCourt position. 

We do not need to speculate about the politics being played out, especially after hearing ANC Deputy Secretary-General Duarte in a leaked recording recently. 

It therefore begs the question whether the time has not come for a set of rules to govern these JSC interviews. Those rules would relate to the tone of questioning but could also provide guidelines as to when the chair ought to step in and ensure that questioning is appropriate in tone and content. This will require some nous on the part of the chair but will also ensure that the candidates are able to invoke protection via the rules if they believe they are victims of egregious questioning. Surely Madonsela’s question would have fallen into that category? Rules would provide some parameters even while encouraging in-depth and intellectually flexible questioning.

While there may be certain concerns about the JSC, the screaming headlines about a “crisis” in the judiciary are simply not true. The overwhelming majority of our judicial officers do their jobs with integrity and independent-mindedness. Words matter. How we speak about the judiciary, our judges and our Constitution, matters. It is in the interests of Zuma and his merry band of populists, both inside and outside of the ANC, to cast aspersions on the judiciary and muddy the waters of the conversation about Zuma, the Zondo Commission and the Constitution. 

We must pay attention, as it is a calculated game, designed to create chaos and undermine the legitimacy of our courts. We must see it for what it is. 

ANC MPs openly aired Zuma’s defence and his sense of grievance about the judiciary at the JSC last week. One MP referred to the potential of South Africa becoming a “judicial dictatorship”. Mogoeng’s recent conduct and inability to lead wisely, for whatever reason, has played right into the hands of those who would claim the judiciary holds a bias in favour of President Cyril Ramaphosa, for instance.

We do not need to speculate about the politics being played out, especially after hearing ANC Deputy Secretary-General Duarte in a leaked recording recently. 

There, she speaks of trying to “find a solution” for Zuma’s legal travails. She says, “It’s not like we can’t see what’s wrong with Zondo” and the “machinations” at the commission. “What is really at stake here is whether or not there is a possibility to find a solution for comrade Zuma in the situation he finds himself in?”

She then provides advice that Zuma should not go before Judge Zondo.

The judiciary, which has been such an effective bulwark against impunity, is in the line of sight of the powerful. Mogoeng, with his muddled thinking and thin skin, has aided and abetted the meddlers. He has done so either by default or design. 

In the circumstances, the most important decision this year will be who Ramaphosa eventually appoints to be the new Chief Justice. 

After all, now that Duarte has said the quiet part out loud, we know precisely what we are dealing with. DM 

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All Comments 10

  • I would hope the author is put forward for Chief Justice – she appears to possess all the brain cells that God’s chosen one and the usual bunch of clowns so obviously lack.

  • By default cANCerous criminals won’t be fond of the judiciary and their critisicms are viewed in that light. However, if the normal, honest citizenry loose faith in the judiciary surely the red lights flicker for our democracy. The acid test lies in the credibility of this pillar, not individuals.

  • MM was always suspect since out of nowhere he was Zuma’s choice and with his display of non-rational religious fervour during his interview. He got a public opinion boost by his surprising and welcome actions on Zuma but now he has reverted to what was assumed he would be.

  • An astute analysis of the interplay of politicians and the judiciary. The less said about double faced and uber opportunist Duarte, the better. Regarding MM’s unwise comments regarding Gordan’s alleged question to him…was he obliged to answer/respond to it…and thus invoke/imply impropriety ?

  • Your submissions are of the highest order! SA has sunk so low through the odious/slimy zuma, his vile cronies and shenanigans. It is high time to deal decisively with these evil scumbags – no mercy – as the country has to move on to better prospects and lives. We have been prisoners for too long!

  • Following an almost 10 year ‘sabbatical’ the CJ is finally in his final days in office showing his true colours of being the Trojan horse of the judiciary. Where else would a judge ask the ‘defendant’ to provide a cure for their misdeeds? Regrettably Grootes chose to call it a ‘master-stroke’!

  • Much brilliant analysis here, Judith. Of course there is a cozying up to Malema with that titbit. The complaint against the CJ will come before the JSC and he needs someone in his corner. It can’t escape us, two public officials claiming god has appointed them have both been disasters.

  • “She (Jesse Duarte) then provides advice that Zuma should not go before Judge Zondo.” Thereby showing the ANC’s real intention with the Zondo Commission – a smoke screen….and in her own words “It’s not like we can’t see what’s wrong with Zondo” and the “machinations” at the commission.

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