An interesting opinion by Judith February in Maverick Citizen titled: “It’s open season on SA’s judiciary – and a flawed chief justice does not help matters” on 20 April 2021 seeks to sum up the state of the judiciary, politics and the interrelationship of the two.

What caught my attention is the view February expressed regarding the chief justice and his leadership: “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?’”, wrote February.

To use February’s words, Mogoeng seems to be brewing a “perfect storm” and bowing out with a bang. According to February, “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.”    

The following comment by one Kanu Sukha in response to February’s piece stood out as an applauding response: “Following an almost 10 years ‘sabbatical’, the CJ is finally in his final days in the 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, (Stephen) Grootes chose to call it a ‘master-stroke’!”

The perspective of a “master-stroke” is one with which I do not agree. In my view, the Constitutional Court misdirected itself with the approach of a pre-judgment request to Jacob Zuma for a mitigation statement from an accused person who never attended or honoured the call to attend court proceedings. What the approach succeeded in doing was to fuel speculation about favouritism and justices fearful and shaking in their gowns to handle a precedent-setting case involving the former president. 

The opinion and the comments must be embraced positively as they call on us to reflect on the next journey in the appointment of the next chief justice. It also encourages a reflection on the performance of Judge Mogoeng at the helm of the South African judiciary. Chief Justice Mogoeng Mogoeng, who February refers to as the “maverick chief justice”, should not surprise anyone with whatever he says or does. Mogoeng is not known to shy away from expressing his views, no matter how unpalatable they may be to others.

The judiciary’s “Trojan Horse” and “maverick chief justice”? Really? Mogoeng has been the subject of fierce criticism since taking over as chief justice, some in my view well deserved. Some may call him an astute figure, the most dominating and the most polarising chief justice to date. For some context, I would like to restate February’s cutting critique of Mogoeng as a person who was never in the first place fit for the position and whose appointment by the presidency of Jacob Zuma was by implication one of the “greatest travesties of our constitutional democracy”.

February wrote that “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.”

Interestingly, while at the Institute for Security Studies, February wrote an article with glowing praise of Mogoeng when he penned a unanimous decision sharply critical of Zuma. “Chief Justice Mogoeng Mogoeng was not the ‘establishment favourite’ to head the Constitutional Court (Concourt); and certainly not as favoured as the erudite Deputy Chief Justice, Dikgang Moseneke. Yet, he has been unpredictable and has shown an independent-minded streak, emboldened by his security of tenure. During the Nkandla hearing, Mogoeng took the lead and managed the process with impressive acuity,” she wrote then.

I do not hold any brief for the chief justice and will not propose to defend him in any way where he is found lacking. But we may need to put things into perspective. Comparatively, I am reminded of the history and operations of the United States Supreme Court and some of its controversial moments under Chief Justice John Marshall.

Marshall, who served as the fourth chief justice from 1801 to 1835 and who joined the court without any prior experience, is not only revered for his transformation of the institutional architecture and operation of the US Supreme Court. The decision in Marbury v Madison in 1803 in which for the first time in history the US Supreme Court declared an act of Congress unconstitutional and established the power of judicial review, established Marshall as a legal powerhouse to be reckoned with, with towering power and influence in the Supreme Court [read here].

Apparently, he could have been impeached for his judicial activism in Marbury v Madison, which thwarted the wishes of a president who appointed him to the bench by giving the court broad interpretation of its delegated powers. The opinion by February is that Mogoeng is far behind his peers and predecessors “from a jurisprudential and intellectual perspective.” But, as a country, we have celebrated significant judgments under Mogoeng as head of the Constitutional Court, some penned by him.

Who can forget the 2017 case of  EFF v Speaker of the National Assembly, where Mogoeng scolded members of the National Assembly for failing in their duty to hold the former president accountable?

The flaming character of the chief justice has always stood forth, on many points, controversially and interestingly. Judges’ speech is not unfettered. When we install the next chief justice, the question must be asked: how much extra-curial and political speech is allowed?

Another comparison is that Marshall is often remembered as the most dominating figure of the Supreme Court who wanted to eliminate dissenting jurisprudence and ensure that the Supreme Court always issued a single opinion by convincing other judges of the court to resolve their differences privately to present a united front through unanimous decisions. Like Marshal, Mogoeng Mogoeng is surely a towering figure both inside and outside the Constitutional Court and the Office of the chief justice. Depending on what you think, this can be both a good and/or a bad thing for the judiciary. 

His religious positions have drawn a mixed reception. It will be interesting to know if Mogoeng Mogoeng is considered to some degree the most polarising and controversial chief justice to date. His Jerusalem saga has produced a raft of opinions and commentaries to an extent that some compare his fate to that of his counterparts in other countries who lost their position on the bench for conduct unbecoming of a judge (read, for example, here).  

According to Stephen Grootes in his Daily Maverick analysis titled: “Chief Justice Mogoeng’s freedom of speech could cost lives – a terrifying and yet not surprising final act,” the chief justice is portrayed as prone to controversy and not shy to promote his identity.

“While there are some in our society who may be surprised that he has made such statements, he was always likely to end up in a controversy on these issues. And, like so many in our society at this moment, he is now basing his actions on the more important aspects of his identity, rather than his identity as the chief justice of the Republic of South Africa,” said Grootes. An ordained pastor and chief justice of the country, Mogoeng produces a tension between the principle of separation of powers and the right of Christian judges who staunchly adhere to religious traditions [read here and here].

Is it a bad thing when the chief justice draws wisdom from his religious sanctuary?  In his 39-page appeal against the Judicial Service Commission (JSC), Mogoeng suggested that no reasonable person should doubt his ability to set aside his religious views and follow the law. Further, that his morality should not be in doubt just because he is a Christian who adheres to Christian traditions. Mogoeng firmly believes that as a citizen of this country and as a Christian he has ample opportunity, within bounds, “of being game-changers in the Israeli/Palestinian situation”. We must not turn a blind eye to how excited the country was when the chief justice slammed Zuma as an errant constitutional being and praised formed Public Protector Thuli Madonsela in biblical terms as “the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath…”.

The flaming character of the chief justice has always stood forth, on many points, controversially and interestingly. Judges’ speech is not unfettered. When we install the next chief justice, the question must be asked: how much extra-curial and political speech is allowed? During her JSC interviews, Judge Fayeeza Kathree-Setiloane explained that she believes judges should only speak through their judgments. She said it is safer for judges to rely on the legal bar to defend judges and the decisions they make.

Mogoeng is considered a black sheep of the judiciary when it comes to involvement in public discourse. February noted that “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.” 

As correctly stated by Judith February, “in the circumstances, the most important decision this year will be who Ramaphosa eventually appoints to be the new chief justice.”  

Mogoeng Mogoeng’s Jerusalem debacle speaks directly in part to the question once posed by US legal scholar and environmental justice advocate, Deborah Goldberg in her article, “How much speech for judges?”. The essay acknowledged that contemporary jurisprudence and normative responses do not provide answers that settle the issue. Thus, as Goldberg stated, “it leaves open the debate about how much judicial speech is required as a matter of law and desirable as a matter of policy.”

This is an intriguing question to answer when you are dealing not only with an ordinary chief justice of the country but also an ordained man of the cloth like Mogoeng in a matter that invokes arguments about freedom of religion and expression. As a preliminary matter, it is important to distinguish the Mogoeng disciplinary issue as more about a case of political question doctrine than an issue of the right to religious belief as his identity.

Courts adjudicate controversies with political ramifications regularly. Still, understanding exactly how much free speech there is for judges is important.

Allow me for a moment to use the following example, which some may find controversial for a secular society. The Book of Deuteronomy in the Bible and prescribes death as the punishment for murder. Should a judge who is also a member of the clergy, and who during his sermons agrees with death as punishment for murder have his or her morality and impartiality be doubted for pointing to this scripture?

The precise contours of the extrajudicial speeches of judges and limitations thereof are murky and unsettled. However, it is hoped that the next chief justice will traverse this thick forest successfully.

As correctly stated by Judith February, “in the circumstances, the most important decision this year will be who Ramaphosa eventually appoints to be the new chief justice.”  

Whatever the decision and whoever the president appoints, I still hang to my previous opinion that South African female judges must be given an equal chance to head the judiciary as chief justice. DM