Chief Justice Mogoeng Mogoeng.
If there’s one sure-fire way to annoy Chief Justice Mogoeng Mogoeng, it is by taking too long to deliver outstanding reserved judgments. This was clear from the Judicial Service Commission (JSC) interviews this week in Cape Town. The chief justice is a stickler when it comes to the speedy resolution of cases.
In spite of the criticisms about Mogoeng, his faith and the perception that his tendency was towards the conservative, he is fast earning a reputation for pushing for court backlogs to be cleared.
Since his appointment as chief justice, Mogoeng has intervened to promote the smooth running of the courts. While it is clear that he has a long way to go, he introduced national and provincial efficiency enhancement committees last year.
At the time, he said cases were postponed too often and judgments were delayed for too long. As a result, he said, the public is losing faith in the system.
Mogoeng complained about this at the JSC interviews in April, although those interviewees said their case loads were too heavy. Mogoeng said there was a particular problem with reserved judgments in the high courts in Pretoria and Johannesburg.
An issue above all else
Mogoeng has asked all judges president for information on the number of outstanding reserved judgments in their respective divisions. When candidates arrived to be interviewed in Cape Town this week, Mogoeng knew how serious the situation was in each of their divisions.
Candidates had barely settled in when Mogoeng asked them about their outstanding judgments.
One particularly promising candidate for the Eastern Cape division made the fatal error of telling Mogoeng that he took six months to deliver one of his judgments because he was busy.
Advocate Thembekile Malusi appeared to be the strongest candidate of the lot who applied for the vacancy in Bhisho. Highly intelligent, articulate and experienced as an acting judge, Malusi gave all the right answers to questions on transformation, separation of powers, and constitutional matters.
But then there was the matter of his reserved judgments.
Malusi said he sincerely regretted the delayed judgments, and offered a heartfelt reply explaining that he did not want to make excuses but that he had simply had time constraints. Mogoeng interjected, his voice suddenly elevated.
Journalists in the room breathed a knowing sigh, and settled into their chairs, as they prepared for Mogoeng’s inevitable speech.
‘Justice delayed is justice denied’
In his day, the chief justice began, one did not sleep until judgments were delivered “because we have a nation to serve”. A lengthy, animated aria ensued, with Mogoeng lamenting court backlogs because “justice delayed is justice denied”.
“When you speak about the smooth running of the courts you are speaking to my heart,” he said.
In this case, Malusi, acting in the high court in Bhisho, had taken six months to deliver a reserved judgment.
“I don’t understand,” Mogoeng said. “You get out of court, before you sleep, you read the file, the issues are fresh, and you write the judgment.”
Commissioner Mike Hellens SC said it was important to write judgments while the matter was still fresh in a judge’s mind.
“Taking too long to write it is like eating cold pap on a winter’s morning. You’ve got no feel for the matter,” Hellens said.
The chief justice said: “Just for the record Mr Malusi, I actually like you. I’m impressed, but for the reservations I have about your reserved judgments. If you are not appointed, don’t give up.”
In the event that Malusi was not recommended for the post, Mogoeng said the advocate should reapply, but in the meantime clean up his act and ensure that his judgments were delivered faster in the future.
Problems run deeper
But it is unfair to single out Malusi. Each candidate received questioning on their outstanding judgments. But for some candidates this was not their primary hurdle to being appointed; some cases appeared so dire that their reserved judgments, and Mogoeng’s pet peeve, were the least of their concerns.
Problems in the Free State and Eastern Cape divisions were discussed in the interviews.
The Free State division is wrestling with the fallout after Western Cape Judge Nathan Erasmus was parachuted in to act as the judge president in that division. He was appointed without the knowledge of Judge Mojalefa Rampai, who complained bitterly about the matter in his previous interview with the JSC, in April this year.
Rampai’s candidacy for the position of judge president angered activists who wrote to the JSC. The Judges Matter Coalition pointed to two judgments penned by Rampai.
In Mabitse vs S, Rampai reduced a child rapists’ sentence from 10 to eight years. This was due to a lack of visible physical injury inflicted on the child.
While the rape “remains a despicable misdeed”, Rampai wrote, “lack of brutal force is a factor which diminishes the moral blameworthiness of a rape offender’s actions”.
For the love of mitigation
In another appeal, S vs Dail, Rampai reduced a man’s sentence from 20 to 15 years. The man had murdered his wife by stabbing her 38 times. Rampai used the fact that the man had epilepsy as a mitigating factor.
He also said: “It must not be forgotten that this was a crime of passion.”
“I think his brutal actions were abnormal. The aggression he displayed by repeatedly stabbing his spouse, as he did, was probably a manifestation of deep-seated emotional turmoil and hurt. It may well be that his epileptic condition was implicated in the brutal force he unleashed on the victim.”
Judge Jake Moloi, also vying for the position of Judge President of the Free State division, also complained of a lack of co-operation in that high court. He said minutes were circulated very late and there was a lack of communication between the judges. There were also severe infrastructure problems in the courts, he said.
Moloi fared better on the matter of reserved judgments. He said he had never taken longer than two weeks to deliver a judgment, “and even then it must be a complicated matter”.
Legal fumbles
Then there were the candidates for the position in Bhisho.
Acting judge Sardia Jacobs was grilled on a rape case involving a four-year-old which she presided over. Jacobs had not called the four-year-old to testify and the child was not psychologically evaluated to determine whether she was fit to do so.
Another candidate for that vacancy, Chuma Cossie, had also acted as a judge. She had so many directorships that one commissioner said he had “lost count” of all the companies Cossie was involved in.
Cossie promised to resign her directorships if appointed as a judge and said only two companies of which she was a director were presently active.
Cossie also fumbled over a question about the separation of powers.
First, she said Parliament was “sovereign”. Then, Parliament was “supreme”. ANC MP Dr Mathole Motshekga and Mogoeng, visibly incredulous at Cossie’s error, recommended that she consult the Constitution on the matter. Parliament has not reigned supreme since apartheid.
“I’ll update myself,” Cossie said.
No candidates were recommended to fill the Bhisho vacancy. Two candidates, advocates Kate Savage and Gayaat Salie-Samuels were recommended to fill two vacancies in the Western Cape High Court.
Judge Mahume Molemela was recommended for promotion to the judge president of the Free State division.