So long, Mogoeng Mogoeng – an improbable choice for Chief Justice

10 Oct 2021

Chief Justice Mogoeng Mogoeng is due to retire today as his term on the Constitutional Court comes to an end. The question to ask now is: How has he changed our country and what mark has he left after his term has ended?

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.

An important follow-up question would be to ask if he has really changed our justice, or our country.

When he was first nominated to the position by Zuma in August 2011 there was fury from the commentariat. “Why Why Mogoeng Mogoeng?” asked this publication. We suggested that this was another attempt by Zuma to weaken independent institutions by selecting a candidate whom he knew would not stand up to him.

We, and possibly Zuma, were wrong: it did not end the way the president intended, with Mogoeng overseeing the part of the process that saw the apex court handing Zuma a jail term.

So, too, did Mogoeng’s time in office begin and end with incidents about his religion.

It may almost have been forgotten now, but in 2011, at the end of his interview with the Judicial Service Commission (JSC), he confirmed that he believed God wanted him to be Chief Justice. The decade of Mogoeng is ending with a furore over his religious comments and vaccines.

To assess his time in office is to perhaps start with how improbable it was that he would ever get to that position, or even be appointed to the Constitutional Court.

He does not have a track record in the Struggle, or as a defender of rights in the courts. Rather he worked as a prosecutor during apartheid, became a judge and then Judge President of North West. So far removed was he from the main legal battles of the day, that, in 2009 when he was interviewed for a position on the Constitutional Court, many people did not give him much heed.

During that interview, he spoke like a preacher, and about how he had tried to improve case flow management in his division. At the time that division had only six courtrooms – Gauteng then had thirty – making it hard to assess how successful he had really been.

Mogoeng was perhaps a beneficiary of the politicisation of the JSC. During those 2009 hearings, to select four Constitutional Court judges, the commission held three days of interviews (including an astonishing late-night interview with Western Cape Judge President John Hlophe). After meeting for just 25 minutes then JSC spokesperson advocate Marumo Moerane came outside and read off the list of nominees from a hand-written piece of paper.

It was clear then that the interviews were all but a sham, and that the list had been preselected.

Mogoeng has also been accused of trying to perpetuate that process. Earlier this year it emerged that he went into the JSC interviews with a prearranged list of candidates which was then selected.

Despite holding those interviews again (after a threat of court action from the Council for the Advancement of the South African Constitution) the same list of nominees has been sent to the president.

The same appeared to hold true for Mogoeng’s JSC interview for the position of Chief Justice in 2011.

It was an incredible scene, held in two hotels across the road from each other in Cape Town (the interview overran, from the Saturday into the Sunday). They were presided over by the Deputy Chief Justice, the man who had been overlooked for the position of Chief Justice again, Dikgang Moseneke.

Mogoeng was so obviously junior to so many people in the room, and it must have been a very difficult time for him.

At one point, he came close to losing his temper, telling Moseneke, “You don’t have to be sarcastic, sir.”

He apologised several times for the comment.

But it was towards the end of the drama that the former IFP MP on the JSC, Koos van der Merwe (who in another life had crossed the floor from the National Party to the IFP in the old whites-only Parliament) made a massive intervention.

Van der Merwe asked Mogoeng if it was true that he had told someone that “God wanted you to be Chief Justice?”.

His answer, as reported in Daily Maverick 10 years ago, was this:

“I want you to know,” he said, “I am one of those people who believes there is a God, and God does speak, so when a position such as this one comes up, knowing my limitations… without God’s strength I will fail, and fail dismally. I prayed, and I got a signal that it was the right thing to do.”

“So God wants you to be Chief Justice?” followed up Van der Merwe.

“I think so,” came the reply.

It was a bizarre moment. Of course, it did not deter Zuma in any way. He pressed on with his nomination and appointed him to the position.

During this process, it emerged that Mogoeng and Zuma had actually met each other before he was nominated. In a fascinating Mail & Guardian report, advocate Khotso Ramolefe explained how he had helped Zuma at one point, and Zuma asked if he could come to dinner. Ramolefe said he invited Mogoeng, then Judge President of North West, because “I didn’t want to be sitting all alone with Mr Zuma at my home, although I could have done that. But I thought I would share the experience with an old friend of mine.”

Ramolefe was no supporter of Mogoeng’s appointment, saying, “But I have no doubt in my mind that the decision the president has made now, sadly, has its genesis in that meeting in my home.”

The Mail & Guardian also reported that Ramolefe “said he believed that Zuma and Mogoeng stayed in touch after that meeting”.

As Mogoeng started his duties as Chief Justice, the first order of business was the fact that he was considered very junior to the person who was his deputy, in Moseneke. It is on the record now that the two worked at their relationship, and clearly came to a position of some mutual respect.

That said, Moseneke still relates in his latest biography, All Rise: A Judicial Memoir how then Constitutional Court judge Zak Yacoob felt moved to tell Mogoeng, in front of other judges, to stop using the phrase “God bless you” at the end of his emails. Yacoob had explained how, as a young child, when he was going blind, everyone in his family (his father was an Islamic priest) and himself prayed to God that he could keep his sight. Their prayers failed.

As Moseneke tells the story: “You see Mogoeng,” Yacoob explained, “if there was a God, he would [have] heard these devout prayers.”

If it is true that Mogoeng had become a silent supporter of the person who appointed him, this was perhaps the moment that Mogoeng was dragged away from Zuma by his judicial constituency. If he failed to lead judges against Zuma, then he would lose pretty much everything he worked for.

It is, depending on where you sit, perhaps a damaging anecdote, a story that gets to the heart of the issues that Mogoeng’s religions have brought to the fore.

In the years after this, through 2012 and into 2014, while there were important cases, the problems around Mogoeng appeared to recede somewhat.

By 2014 things were changing.

In one instance, Mogoeng held a press conference, after making several comments around religious issues. In that conference he promised to uphold the rights of gay and lesbian people, saying that he had promised to do so, he had sworn an oath to do so.

I suggested at the time that I “felt myself quite liking” Mogoeng.

This was partly because of the way he treated journalists like myself, but it was also because the fact that he had sworn an oath to uphold the Constitution could suddenly be quite important.

It seemed possible that whatever his beliefs, his promise, sworn as an oath to God, to uphold the Constitution could be the most important thing about him. And later, as it became clear that Zuma had failed to uphold his oath to uphold the Constitution, one had to wonder how Mogoeng felt about it.

At that stage what may have been the two biggest moments in Mogoeng’s time in office were still in the future.

While they related to two separate incidents, one followed the other, and perhaps more than anything, will define the longer-term assessments of Mogoeng’s time in office.

The first was the fact that Zuma’s government allowed then-Sudanese leader Omar al-Bashir to leave the country in defiance of a court order.

The second, of course, was the Nkandla judgment, which found Zuma had broken his oath of office.

The Bashir incident was a major test of the power of the rule of law and the power of politics.

Bashir was invited by Zuma as part of an African Union summit. It was, perhaps, a rare display of ego by Zuma. He would have been aware of his government’s obligations to detain Bashir as part of the International Criminal Court. It was an obligation signed up to by his party, the ANC.

And yet when a high court ruled that Bashir must be detained he was still able to skip the country, in a series of events still not adequately explained.

This was a high-profile snub of the judiciary. And a major problem for Mogoeng.

He now had a constituency of judges who would look to him for leadership. And because this was an existential crisis for the judiciary (a judge’s order had been rendered literally impotent in public), if he failed to lead, they would look elsewhere for leadership. Plus, Moseneke was still Deputy Chief Justice, and in a position to speak out.

The result was Mogoeng’s unprecedented meeting of the Heads of Courts, and organisations representing lawyers and advocates. The meeting was held at OR Tambo International Airport. The press conference afterwards was held live on eNCA, but not on the SABC (this was the time that Hlaudi Motsoeneng was in charge of the public broadcaster).

Moseneke was there too. His silent approval gave Mogoeng the support he needed.

If it is true that Mogoeng had become a silent supporter of the person who appointed him, this was perhaps the moment that Mogoeng was dragged away from Zuma by his judicial constituency. If he failed to lead judges against Zuma, then he would lose pretty much everything he worked for.

Mogoeng was not alone in this. At the start of Zuma’s time in office several religious leaders, including Rhema Church’s Ray McCauley, tried to get close to Zuma. As their constituencies started to understand how corrupt Zuma was, they had to be seen to distance themselves, or lose their constituencies.

Perhaps the culmination of this process was the Constitutional Court’s Nkandla judgment, which may well be the longest-lasting piece of Mogoeng’s judicial legacy.

In essence, the ruling was about whether the Public Protector’s remedial actions had to be carried out, about whether they were mandatory. But the context was not just about Zuma and the Public Protector, it was also about the fact that Parliament had also failed to act against Zuma.

When the case finally got to the Constitutional Court, Zuma had already made several concessions, and in some ways the judgment may have already been a fait accompli.

That said, the way in which Mogoeng handled it was important.

Firstly, he wrote the judgment himself, he was clearly aware of its significance and how this was about the rule of law and the political power of the president.

Secondly, it helped that this was a unanimous judgment, and clearly there was leadership involved in that with the other judges on the court.

Thirdly, and importantly at the time, was the way in which it was delivered. He delivered it personally, and in full, not just reading the media summary as was often the case before.

"If there be any vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire in the name of Jesus." - Chief Justice Mogoeng Mogoeng

The power of his delivery, in his oratorical cadence, the way it was put, clearly and properly, was significant on its own.

This was the highest court in the land making a finding that the president had failed in his oath of office. Mogoeng was acutely aware of that, and of his place in this.

Mogoeng may also have felt disappointed in Zuma, on a personal level. It was Mogoeng who administered the oath of office for the start of Zuma’s second term in 2014, who stood next to Zuma when he swore to uphold the Constitution. And Mogoeng himself had previously said how important he believed his oath was to him.

And now, here was Zuma, clearly breaking his oath, and it was Mogoeng’s job to make that judgment.

Perhaps that played a part, perhaps it did not. But Mogoeng would have been more than human not to have felt complicated emotions at this.

The implications of that ruling are still felt today, and will be for some time. Much of the power of the Public Protector’s office still comes from it. It was an important boost for the power of the independent Chapter 9 institutions.

In the period immediately after that, Zuma started to lose political power. And when he lost the power of the Presidency, the major fixed point of our politics over the last nine years was lost. This had huge repercussions, for the ANC, and for other political parties, who appeared to almost lose their way.

Mogoeng may also have felt slightly adrift.

It was during this period, as the pandemic started in 2020, that he participated in a virtual discussion about the Middle East.

And it was because of his comments there that he was found guilty of “becoming involved in political controversy”.

It was never properly explained why he took part in that event. The Middle East raises a host of incredibly contentious and difficult issues. It was completely foreseeable that anything he said would get him into trouble.

And that this trouble was unnecessary.

More was to come. As the pandemic was gearing up for its second wave in December last year, he made his famous comment about vaccines: “If there be any vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire in the name of Jesus.”

Mogoeng was sharply criticised for this comment, including by this writer in these pages (this criticism also resulted in a fiery response from Onkgopotse JJ Tabane).

It was a bizarre thing to say, and again, incredibly contentious.

While it is not possible to know the inner thinking of our Chief Justice, in his final days, it may be that he felt his faith drove him to intervene in these moments, that he had nothing to lose, and that he must speak out.

The final days of Mogoeng’s term may not have been happy ones.

He presided over the JSC interviews for a final time. His handling of the interviews for positions on the Constitutional Court was considered to be so bad that Casac said it would go to court to argue that they must be re-held.

The JSC did not even put up a fight, it simply agreed to do so.

Remarkably, this may be because evidence emerged that Mogoeng had had a shortlist of judges from the start, and that this was the same list as the judges who were eventually nominated, in much the same way he himself was appointed to the Constitutional Court 12 years ago.

And Mogoeng himself went on sabbatical, not even spending his final few days in office. He would have watched the re-run of the JSC interviews on YouTube or TV like the rest of us.

As he now enters retirement, the question to ask is, how has he changed our country, what mark has he left after 10 years as Chief Justice?

It is not certain if he steps aside with the respect of the nation, or of the legal profession, or even of his fellow judges.

There is the Nkandla judgment, to be sure. And perhaps, behind the scenes there are important contributions around case flow management or the establishment of the Office of the Chief Justice.

But for the moment, Mogoeng may be remembered for what he always was, an improbable choice for the position of Chief Justice. DM

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