It was utterly predictable that, in his last days as the Chief Justice of South Africa, Mogoeng Mogoeng would once again generate diverse opinions on his tenure as the leader of the judiciary. Questions have been raised as to what would be regarded as his legacy.
Mogoeng Mogoeng’s role as the Chairperson of the Judicial Service Commission (JSC) for the interviewing of justices to the Constitutional Court was the latest controversy that put him in the spotlight that was described by Casac as unlawful and irrational. In this instance, the Chief Justice failed to defuse the partisan gerrymandering that brought to light the regression from good conduct by the JSC.
Presented with political questions, Mogoeng Mogoeng was complicit in the chaos that the JSC descended into instead of setting an example and perhaps putting politicians and other non-legally trained members on the JSC interview panel in their lane.
Not one to shy away from controversy, his opinions on the Palestine-Israel conflict earned him friends and foes alike. He was seen by some as significantly and profoundly pro-Israel. As Stephen Grootes put it in Daily Maverick:
“To fully assess the difficult past 10 years of our democracy is impossible in one article, even in one book. To a large extent, though, it is fair to say that Mogoeng’s term has been defined by two things: the man who appointed him, former president Jacob Zuma, and the Chief Justice’s own strongly held, and often publicly stated, religious beliefs.”
The Chief Justice’s approach and involvement are some of the issues outside of court that were disturbing on a number of levels. In particular, Mogoeng overstepped the ethically acceptable engagement of judges in public discourse and the need to avoid politically sensitive issues, depending on how you read it. But, Mogoeng has always made it clear to whoever cares to listen that he was a man of God, and would not align himself to any approach that stifles his freedom of religion and expression.
Mogoeng had some decisions sharply criticised. For instance, his Constitutional Court ruling in Jacobs v State was described by Professor Pierre de Vos as representing “an embarrassing chapter in the Court’s lustrous 25-year history and tarnishes the reputation of our highest court”.
Mogoeng Mogoeng also presided over a judiciary that faced multi-dimensional attacks. Then secretary-general of the South African Communist Party (SACP), an ally of the ANC, Dr Blade Nzimande, denounced South Africa for gradually slumping into “judicial dictatorship” in the form of “a coordinated liberal offensive” designed to attack “almost any decision by the president and the executive”. The former secretary-general of the ANC, Gwede Mantashe, lambasted the courts under Mogoeng for “acting as if they were the political opposition and in so doing seeking to arrest the functioning of government”.
One of the reasons that the Constitutional Court was able to achieve a relatively broad success and the judiciary remained undeterred in discharging constitutional responsibilities was the leadership provided by Mogoeng Mogoeng during his tenure. Edwin Cameron, former justice of the Constitutional Court described him as “a man of serious purpose, deeply committed to the Constitution. His headship has been strong-willed, insistent, clear-sighted, uncompromising, redoubtable in energy, determination, principled commitment and insistent in the clarity and purity of his voice. He has advocated for truthful leadership against corruption, against resemblance and lies, and for constitutional accountability.”
Many may want to differ from the view by Cameron. However, it will be disingenuous as a country to focus too much on his negatives and pay willful blindness to the fact that, as the leader of the judiciary, Mogoeng ensured that the foundation on which the Constitution was built, judicial independence, human rights and freedom, were not substantially eroded. He brought a positive outlook to the country’s judicial history of the Constitutional Court.
President Cyril Ramaphosa said that “today we pay tribute to Chief Justice Mogoeng for endowing South African jurisprudence and the democratic order more broadly with judicial integrity and resilience which has impacted positively on the lives of citizens and advanced accountability”, as he acknowledged Mogoeng for a decade of “outstanding service and leadership”.
Ramaphosa hit the nail on the head with regard to the exemplary leadership demonstrated by Mogoeng and his tenacity to pick a fight with the executive in order to protect the judiciary. He showed stern leadership against the politicisation of the law and the judiciary when in 2015 he led an extraordinary meeting with then-president Jacob Zuma and members of the former president’s Cabinet about the Omar al-Bashir matter and Mantashe’s attack on the judiciary.
Consequently, the government agreed that “court orders should be respected and complied with”. Zuma also pronounced the “responsibility to the people of South Africa to uphold the Constitution of the republic”. On the other hand, Mogoeng reaffirmed a collective commitment of the “judiciary to executing our constitutional mandate only in a manner required of us by the Constitution and the law”.
One of the views expressed by Mogoeng, which is relevant to the unfolding search for the next Chief Justice, is the observation that the judiciary has been primarily composed of men. Please excuse me for mentioning this at this point. However, one wonders if Mogoeng would support the appointment of a female Chief Justice from among those who were nominated for the position.
Put differently, it would be interesting to know if Mogoeng would welcome his successor to be a woman or agree that the time is over for the JSC and the president for being fishers of men. It will also be interesting to know if Mogoeng anticipated the political melee over his successor, and whether, as an unwavering institutionalist, he would support a female Chief Justice.
Adios, Chief Justice Mogoeng Mogoeng. You will go down in history as the South African version of US Chief Justice John Roberts. Both chief justices defied expectations of being lackeys to the presidents that appointed them.
To use the statements in The Wall Street Journal, on a discussion around Roberts at the helm of the US Supreme Court, Mogoeng has demonstrated that “for leaders, holding the centre without compromising your authority, your relationships or your principles is a daunting challenge. It requires a delicate balance of aggression and restraint, hard work and tactical savvy, personal charisma and alligator skin.” DM