Mogoeng's first day on the job

As the speakers came and went at the special joint sitting of Parliament, two distinct views emerged on the role and purpose of the judiciary.

“There is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formulation. The executive must be allowed to conduct its administration and policy making work as freely as it possibly can.

“The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote,” President Jacob Zuma said, qualifying a preceding reaffirmation of commitment to the separation of powers and independence of the judiciary.

ANC MP Luwellyn Landers, apparently rearticulating Chief Justice Mogoeng’s view on the separation of powers, said: “Your (Mogoeng’s) express view is that the judiciary is also independent of pressure groups and other such civil society formations, the media not excluded.

“We have seen a plethora of pressure groups seeking to use the judiciary to reverse the gains of transformation in [sic] the pretext of protecting our Constitution. Many of those who lose battles in legitimate democratic platforms seek to have a second bite through the judiciary.

“We are persuaded that the judiciary should not lend itself to being easily involved in matters that are best solved by the democratic institutions of this country and its democratically elected public representatives,” Landers said.

The last time Zuma said “we” (ie the ecclesiastical polity of the ANC) brought up this apparent judicial interference in the affairs – particularly the policy-making duties – of the executive and the legislature, it set tongues wagging within the legal fraternity.

Particularly scandalous were comments made ANC secretary-general Gwede Mantashe as he attempted to elucidate the party’s position on the judiciary in an interview with the Sowetan. Mantashe said the judiciary’s “hostility” would make the government unstable. “For every small disagreement in Parliament, the opposition threatens to take matters to the court. Once you have that, then you will have a perception that says the judiciary is actually consolidating opposition to government,” Mantashe said, betraying either a dangerous lack of understanding of or wilful disregard for the Constitutionally enshrined right of access to court.

ANC NEC member Ngoako Ramatlhodi also weighed in on the matter in a September op-ed in the Sunday Times. According to Ramatlhodi, apartheid forces succeeded in retaining white domination under a black government by emptying the legislature and executive of any real power and vesting it in the judiciary, Chapter Nine institutions and civil society.

As Daily Maverick has pointed out before, the ANC’s view that the judiciary is an obstacle in the path of unchecked executive power is not a new development.

In stark contrast to these, were views expressed by some opposition parties at Tuesday’s farewell.

“You did not come today to this house to be tactfully told by us, the politicians, that you and the judiciary should bow to the wishes of the majority, ”said Pieter Mulder, Freedom Front Plus leader and deputy minister of agriculture, forestry and fisheries, addressing Chief Justice Mogoeng directly. Mulder said there may be times when the wishes of the majority were in conflict with the Constitution – popular opposition to the abolition of the death penalty spring to mind, and that Mogoeng, as chief justice, must uphold what the Constitution says in those circumstances.

A fresh-faced Lindiwe Mazibuko, delivering her first address to the assembly as leader of the official opposition, said: “There are some in our country who believe they are above the law, who believe that might is right. They enrich themselves at the expense of the poor and use race to divide South Africa's citizens. They wish to destroy our Constitution. They are the bullies of our time.” Not naming the “they”, Mazibuko urged the new chief justice to stand up to bullies.

The image that followed – of Justice Mogoeng sitting with President Zuma and sharing laughs as justice minister Jeff Radebe ever so tenderly lavished adoration on Mogoeng – is, in isolation, not concerning. But given the ruminations from the ANC on curbing the authority of the judiciary, it ought to give pause.

For his part, Mogoeng stood firm on his commitment to an independent judiciary. He said: “We assure the nation of our commitment to (the) separation of powers, the rule of law and our relentless pursuit of the independence of the judiciary so as to perform our Constitutional mandate with utmost integrity and competence.” Mogoeng then proceeded to quote Zuma on the co-operation between and interdependence of the judiciary and other arms of the state – a fair statement, but one that, in the broader context, may put detractors and neutrals alike ill at ease.

Read more:

• Why Ramatlhodi promotes an autocratic kleptocracy, on Constitutionally Speaking.

Photo: Chief Justice Mogoeng Mogoeng. Mail & Guardian.