Mogoeng, from pariah to saviour
On a brittle Johannesburg autumn morning two weeks ago, it took about an hour for Mogoeng Mogoeng to go from being nobody’s chief justice to everyone’s.
In that time, Mogoeng read out the court’s unanimous 52-page judgment which found that President Jacob Zuma and the National Assembly had breached the Constitution by rejecting public protector Thuli Madonsela’s proposed remedial action on Nkandla, the president’s private residence on which R247-million of public funds had been splurged.
The judgment vindicated a citizenry outraged by Zuma’s perceived impunity – in action and word – on Nkandla, the Marikana massacre, the sacking of the finance minister, Nhlanhla Nene, his unseemly relationship with the Gupta family and the appointment of apparent cronies to strategic positions in the parastatals, the prosecuting authority and the state’s security apparatus.
Something shifted on March 31 2016.
A nation – whose elite stare constantly into the abyss of a “ruined state” while its majority still struggle daily with ruinous inequality – reminded itself that it had a judiciary that was independent-minded and functional.
A chief justice, who five years earlier had been construed as a Zuma lackey whom very few people wanted, had been recast as the saviour of the nation’s constitutional democracy – which was, convincingly, not broken down.
A week later, as he settles into a chair in a Cape Town hotel during a break in the Judicial Service Commission’s (JSC) interviews of aspirant judges, Mogoeng seems unaffected by the country’s mood swing. He says matter-of-factly he has been “rather too busy to indulge in the luxury of paying much attention to anything else but the week at hand” – the relentless schedule of interviews.
After a bit of prodding, Mogoeng concedes that “there can be no denying that [the public attention on the judiciary] has been heightened now more than ever before”.
Mogoeng was trending on social media. He was trending at taxi ranks and around dinner tables, where many were made to eat their words about him. The shift was remarkable, dramatic even, and people seemed surprised by both the judgment and its clear criticism of Zuma’s behaviour, and their own U-turn on Mogoeng.
The chief justice suggests this was because the notion that he was “a puppet was so entrenched, so fossilised that in the minds of many, it became a fact. Not withstanding all that has happened … there are many people in our country who have a mental block. They can’t just see it is possible that I never was – or assuming that I was – a puppet, that I have the capacity to move from a state of being a tool to the state of being an independent person. So I think it is through that lens that whatever I do, whatever I say, is viewed.”
Some people, Mogoeng says, don’t realise how seriously he, and he would like to believe all judges, “take our oath of office and affirmation”. Judges, according to him, must apply the law and Constitution unequivocally, which is what he did in writing the Nkandla judgment.
“It’s a very, very serious and irrevocable contract that I have made with the people of South Africa, never to be breached. That is where I stand.”
He says the public have been tuning into the judiciary and its role “for a while now” because of “crucial” moments over the past year.
These include, he says, the heads of court and senior judges meeting in July last year, which was followed by the judiciary coming out, with one voice, to respond to often vitriolic criticism levelled at it by politicians.
End to ‘attacks’
Then there was the meeting between the judiciary and the executive on August 28, which was followed by a “historic” joint press conference held by Mogoeng and Zuma.
These were essential, Mogoeng says, and “the barrage of attacks on the judiciary virtually came to an end” afterwards. “So it was necessary that we reassert the position of the judiciary, fearlessly, as we should, and help the public and members of the other arms of the state appreciate what role the judiciary is supposed to play, and their commitment to do so without fear, favour or prejudice.”
But it is the judgment, like the president’s apparent proxy war with Finance Minister Pravin Gordhan, that appears to have galvanised the public imagination and anti-Zuma sentiment.
The 10 other judges of the Constitutional Court had agreed with Mogoeng, the “first among equals”, who penned the ruling. Sometimes, judgment-writing on Constitutional Hill can be a collaborative process. Was there much input from the other judges?
“There was, the truth be told, minimal input from my colleagues,” Mogoeng says, adding that it was easy to get consensus on it. “We had a few things to iron out, but it was not a difficult thing to secure consensus.”
Unsurprising, perhaps, since Zuma’s lawyers made dramatic concessions during argument that he was, despite refusing to acknowledge it for almost two years, bound by the public protector’s recommendations. And, judges, mindful of the separation of powers, very rarely overreach themselves in cases of this nature.
Mogoeng may have been resurrected as South Africa’s Constitutional crusader but, a mere five years ago, he sat, a pariah, before the commission that he now chairs and was interrogated publicly for an unprecedented two days for the position he currently holds. It was brutal viewing as everything from his intellect to his record on rape sentencing was questioned.
Mogoeng readily says: “You may not believe this, I enjoyed it.
“The only thing that hit me hard was when I remembered my mother and her inability, and my father’s inability, to pay my tuition fee at my university, which rendered it necessary for me to get funding from a homeland government where I was located, not by choice, but by apartheid design. [This] led people to say that I was a puppet of the apartheid regime when I worked there as a prosecutor, paying back what I owed.”
Growing up in Koffiekraal, or GooMokgatlha, in the rural North West, Mogoeng’s upbringing, although materially impoverished, was infused with a strict moral rectitude. His mother, a domestic worker, and his father, a menial labourer, were barely educated but were “strict”, as were his aunts and grandparents who helped to raise him for a time during his formative years.
That background helped him get through the 2011 interview and spurred him on to tirelessly institute structural changes to the judiciary, including a case-flow management system and minimum norms and standards for judges, which has sped up the dispensing of justice.
Were there any other factors that got him through the baptism of fire?
“You want the truth? The truth is what people have been mocking me for, for so many years: I trust in Jesus Christ. He has helped me. I pray unto him, he answers my prayer, so that capacity to be calm, that capacity not to hold a grudge, stems from that.”
During the JSC interviews last week, it emerged that Western Cape high court Judge Rosheni Allie, in a scattershot attack on some of her colleagues, had described Mogoeng, in WhatsApp messages, as “an individual with no conviction or insight”, prone to imperial tendencies, including having “eight bodyguards” while running a “sick road show” of conferences and meetings to research minimum norms and standards for judges several years ago.
The chief justice’s response was that, although he found Allie’s comments “surprising” and “unfortunate”, he would not be considering any action against her.
“I know many people will fail to appreciate this and think that I am faking it – I forgive people in advance. Before you offend me, you are forgiven. It took me long to realise that, when you bear grudges, when you hate, you’re actually tormenting yourself … I realised that hating people and bearing grudges actually empowers them and actually gives them control of your joy and of your peace, because, when you succeed and I hate you, gone is my joy … That is my attitude.
“So I am not going to take any action against Judge Allie. She doesn’t even have to ask for forgiveness from me. I have forgiven her before I even knew what she had done.”
Forgiveness for apartheid by black people and the reconciliation process that followed the country’s first democratic elections in 1994 have been increasingly perceived by movements like #FeesMustFall as part of the reason that South Africa’s national project is failing.
Mogoeng believes there should be “collective responsibility” for the country’s racial failings, and that more programmes and legislative attention should have been paid to the race question.
“Remember, there is a focused programme, whatever its shortcomings, to address the land question. It’s there, it has been legislated for.
“And, two, economic empowerment, that problem is being attended to. Whatever the shortcomings, there is something in place because it is one of those serious problems of the past. The preamble of our Constitution says we must heal the divisions of the past. It’s not something that we should have taken for granted in the manner that we have.
“It will take that kind of project [to shift people away from the indoctrination of apartheid that will] take us away from those sorts of stereotypes, so that we don’t pretend to be united and reconciled, and we really are a united people and a reconciled people.”
Niren Tolsi is a freelance journalist who writes about the judiciary, social justice and Test cricket.