First published in the Daily Maverick 168 weekly newspaper.

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

The context is multilayered but central to it is former president Jacob Zuma’s defiance of the Zondo Commission of Inquiry into State Capture. 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 his old playbook.

In this playbook, the facts become a casualty and conspiracy theories abound. It is filled with accusations of racism and then systematically sows disinformation. Any institution that 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 appointed Judge 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 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 and Jessie Duarte to Tony Yengeni and a raft of others. They are a veritable rogues’ gallery.

As the ANC 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.

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, Al-Bashir had left South Africa, yet it was vital to establish that the state was not above the Constitution.

Gwede Mantashe, the then secretary-general of the ANC, 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 Jessie 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 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, including the Constitutional Court, the Supreme Court of Appeal, the Labour Court and other High Court divisions, according to the now essential website, Judges Matter.

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.

First, and quite bizarrely, Chief Justice Mogoeng Mogoeng declared in the JSC interview of Justice Dhaya Pillay that Minister of Public Enterprises Pravin Gordhan had met him a few years ago and had 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.

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 Judge Pillay. The perception would be that he was trying to influence the appointment process in the future. By the time Gordhan made the comment, Judge Pillay’s candidacy had already been rejected.

Exercising caution

To be clear, judges and politicians naturally may have contact. It would be naive to think their paths would never cross for some reason or another.

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. The larger point about Mogoeng is that he ought never to have led the highest court in the land. From a jurisprudential and intellectual perspective, he trails his predecessors by a country mile. And 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 has always possessed the gravitas, temperament and ethical compass to lead the Constitutional Court.

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. We should be grateful for the principled stance Mogoeng took in the Nkandla matter, for instance. Ironically, under his leadership the Constitutional Court may have mostly lost its intellectual heft, but it hasn’t 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 casts 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 as well as 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 bit of religious zeal and inappropriateness in answering the questions put to him. We all remember when MP Koos van der Merwe asked, “So God wants you to be chief justice?”, and Mogoeng replied, “I think so.”

Mogoeng, like all of us, is entitled to his religious beliefs, but the comment in the interview was misplaced and ill-judged.

During that interview one could also see signs of Mogoeng’s temper, such as when he told the deputy chief justice, “You don’t have to be sarcastic, sir.” This was a rather large hint that Mogoeng was 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 towards mediocrity under Zuma and a deliberate sidelining 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 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 the 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 inclusivity. That many of the individuals on it appear to have a weak grasp of what is required in interviewing candidates makes it difficult for meaningful questions to be asked. These would include serious questions of legal philosophy and interpretation.

Yet we saw Julius Malema behaving poorly. Further, Advocate Thandazani Griffiths Madonsela SC asked whether candidate Lawrence Lever SC’s observation of the sabbath would interfere with his judicial duties. Lever responded that he did not observe the sabbath but he had always performed his duties as required and that the same would be true for judges of other religious persuasions.

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

Added to this, Mogoeng’s extraordinary revelation about his meeting with Gordhan, and that he did nothing about this until he made the 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 overly personal.

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 up to 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 shortlist for a Constitutional Court position.

This raises the question whether the time has come for a set of rules to govern JSC interviews. These 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 would ensure that candidates were able to invoke protection if they believed they were victims of egregious questioning. Surely Madonsela’s question would have fallen into that category?

Simply not true

While there may be concerns about the JSC, the 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: 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 has played right into the hands of those who would claim the judiciary has 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 Jessie 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 has aided and abetted the meddlers. He has done so either by default or design.

The most important decision this year will be who Ramaphosa appoints to be the new chief justice. After all, now that Duarte has said the quiet part out loud, we know what we’re dealing with. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.