There’s no justice, chief – there’s just us

August 27 2015, Pretoria. The serene tranquillity of the corridors of the West Wing is broken only by the sharp click-clack of Chief Justice Mogoeng Mogoeng’s brogues as he marches with his customary briskness towards President Jacob Zuma’s office in the Union Buildings – a meeting that in the light of ongoing tensions between the executive and judicial branches of government he courageously sought but that now fills him with a certain dread.

Zuma, looking up with an air of surprise from the teacup he is meticulously stirring: Chief Justice?

Mogoeng: Mr President, were you not expecting me? Are you surprised to see me?

Zuma, with a sterner demeanour: Nothing ever surprises me, Chief Justice.

Mogoeng, breathlessly, as if eager to spit out a long-prepared speech, yet making himself speak slowly, for greater effect: Well, thank you for agreeing to meet. My fellow judges and I are concerned about relations between our branch of government and yours. In particular, they are disturbed by the hostile tone of some of the public comments made by you and your ministers. They believe that there is a concerted attempt to intimidate the judiciary and that the rule of law is being undermined.

Zuma: Really? Whatever makes them think that? Who among your brother and sister judges says so? Let me have names so I can invite them for tea.

Mogoeng: Mr President, they spoke in confidence to me …

Zuma: … in confidence to you? I assumed that if you were coming with such serious allegations, you would have a clear mandate. Do you not have one?

Mogoeng, somewhat thrown: Oh, err, yes, I do, Mr President. The heads of court meeting requested that I request this meeting. The al-Bashir thing was the last straw for them.

Zuma: Do you people have no appreciation of international relations? Do you not understand that it is not in the interests of South Africa to arrest a brother African president on our soil?

Mogoeng: Our job is to apply the law, Mr President. And that is precisely what the high court in Pretoria did in that case. But your government misled the court. It disobeyed a court order.

Zuma: We had no choice. And you should not have put us in such a difficult position. We had good reasons – of the highest political order. Our responsibility is to maintain good diplomatic relations with the leadership of rest of the continent. We were not going to jeopardise those for some Western International Criminal Court that has no legitimacy in Africa.

Besides, Chief Justice, did Judge President Dunstan Mlambo give any consideration to the order he was making? How exactly would he have liked us to have arrested President Omar al-Bashir? At his hotel, like a Fifa scoundrel? Or as he boarded his presidential jet? We would have been disobeying our own law! I granted him immunity. Imagine what a laughing stock I would have been had I disregarded my own proclamation!

Mogoeng: Mr President, as the court said in its judgment, a Cabinet or presidential proclamation cannot trump a statute. You disobeyed your own Parliament and then you disobeyed a court of law. When an executive picks and chooses the laws it wants to follow, and tramples over the other two branches of government, we are headed for authoritarianism and autocracy.

Zuma: Big words, Chief Justice. But I know certain things.
[pause, for sinister effect, and with an unmistakable sneer]
I know that the Constitution is sovereign. You judges rule the country, not me. I bow down at the feet of your constitutional authority. You are Number One, not me.

Mogoeng, querulously: Mr President, are you being ironic?

Zuma, with his famous chuckle: Do I seem like a man who does irony?

Mogoeng, with the air of a man who very definitely does not do irony: Because it’s not what you said in 2009, when you called for a “big campaign” to remind people that you rule the country, not the judges.

Zuma: That was directed at conservative white judges.

Mogoeng: But, Mr President, with respect …

Zuma: Chief Justice, even I know that when lawyers say “with respect” they usually mean the opposite.

Mogoeng, flustered yet resolute: Mr President, the problem is this: when you do not choose your words very carefully, there are dangers.

When you speak about judges not knowing their place, when you speak about reviewing the powers of the Constitutional Court, when your minister talks about counter-revolutionary judges …

Zuma: That was the secretary general of the ANC, not a minister of mine.

Mogoeng: But your ministers for further education and minerals have both accused the judiciary of being “anti-transformation”.

Zuma: Well, you are stopping us from getting things done!

Mogoeng: No, Mr President, we are applying the law and upholding the Constitution – and may I remind you that it was the ANC that chose constitutionalism over parliamentary sovereignty. Often we are ensuring that people’s constitutional rights are not trampled on by your administration.

We have protected people’s right to access to health care including HIV treatment, to decent schooling, to welfare payments, their right not to be evicted without due process. It’s not our fault if government keeps messing up.

I understand that it’s frustrating, that government is hard because the problems are big and that you want to blame someone else when things don’t go to plan …

Zuma: What are you, my psychiatrist?

Mogoeng: No, Mr President, I am your chief justice. And I am asking you to respect us, not insult us.

Silence. Both men look across the table at each other, unflinching.

Zuma: Mogoeng, do you recall who appointed you to your high office? Perhaps I should remind you from where you come.

In late 2009 a list of seven names came to me, from which I had to select four to become Constitutional Court judges, and my advisers told me that you were the judge president of the smallest division in the land and had been put on the list as a makeweight.

I ignored them. We had met once or twice, and I liked your no-nonsense approach and your traditional values. You spoke a South African language with a proper, local accent. Not that posh English of your predecessors as chief justice or, though I can barely bring myself to mention his name because he is apparently so eager to limit my powers, your deputy, Dikgang Moseneke …

Mogoeng, leaning forward hopefully: Well, I remain honoured that my president saw potential …

Zuma: Don’t flatter yourself, Chief Justice. I did not see potential. I saw obedience.

I thought you would understand that we are the elected government of this country and we must be free to govern as we decide that our people would see fit for us to govern, not you and your colleagues.

Mogoeng, mouth open, like a fish, fighting for air: Mr President, I am distressed to hear you speak in such terms …

Zuma: The problem with people like you is that, once appointed, you think that you got there on merit …

Mogoeng: Isn’t that a variation of a famous quote?

Zuma, ignoring him: I know what’s going on, Mogoeng. My people have been watching and they have advised me: you are taking this whole independence thing far too seriously. You are determined to prove that you are not my lackey. You are hellbent on making people have to eat their words.

Mogoeng, puffing up his chest: Yes, I am, Mr President. Like that arrogant professor of law down in the Cape – Richard Calland.

Zuma: I’ve no idea who you’re referring to. Never heard of him.

Mogoeng: Mr President, the one who said you don’t read.

Zuma, frowning: Ah yes.
Pause and then another deep chuckle: The same one that wrote in his book that I, the one who doesn’t read, appointed you, the one who doesn’t write!

Mogoeng, a tad embarrassed at having walked into this: I believe he was referring to my track record of writing reportable judgments, which, incidentally, has greatly improved in the past year or two …

Zuma: I am glad to hear that. I presume the Chief Justice gets the cream of the crop when it comes to clerks …

Presidential aide, entering the room apace: Mr President, I am sorry to interrupt you, but President Putin is on the phone, and he says it’s urgent. He says there’s a slight problem with “the transfer”.

Zuma: Excuse me, Chief Justice. Enjoy the rest of your day!

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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