If all agree that Chief Justice Mogoeng Mogoeng has effectively ended his term five months early after revindicating his right to speak freely where others may have felt inhibited, the jury is divided on the significance of the step.
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Mogoeng’s decision to take long leave from the beginning of the month comes as the Judicial Service Commission (JSC) is set to deal with two controversies — one involving him personally — that are unlikely to be resolved by the time his term officially ends on 11 October.
On 4 June, the commission will deliberate on the finding of gross misconduct against Western Cape Judge President John Hlophe, which stems from a complaint filed in 2008, a year before Mogoeng became chief justice.
Justice Sisi Khampepe, who is acting head of the judiciary in Mogoeng’s absence, will now chair the commission when it hears representations from Hlophe and decide whether to endorse the Judicial Conduct Tribunal recommendation that he be impeached.
One week later the JSC will meet again to consider written representations by Mogoeng, as well as the complainants, in his appeal to a ruling by the Judicial Conduct Committee (JCC) that he apologise for venturing into political terrain by questioning South Africa’s policy towards Israel.
The chief justice had until last week to file his arguments. He is disputing a finding that he flouted five articles of the Judicial Code of Conduct and has refused an instruction to read a scripted apology, which included a retraction of his earlier insistence that he would not recant “even if 50-million people were to march every day for 10 years for me to do so”.
Mogoeng confounded the prospect of apologising for his June 2020 pro-Israel remarks with renouncing his Christian faith, saying: “I will not apologise for believing in my God.”
Alison Tilley, the coordinator of Judges Matter, said it was plain that he chafed at the strictures of his role in terms of speaking his mind. “He has apparently been very uncomfortable with the constraints around a sitting judge speaking publicly on controversial issues.”
Earlier this year Mogoeng drew fire for suggesting prayer was the answer to the Covid-19 pandemic and vaccines were from the devil, prompting another complaint. It echoed a statement in the early days of the pandemic where Mogoeng’s focus was on prayer, not the practicalities of reorganising the courts.
In defending himself before the JCC, Mogoeng invoked the right to express himself as a private citizen when he was not in court. But the JCC disagreed, saying: “He cannot cease to be chief justice and be like any other citizen for as long as he is in office. That is a comfort he left behind when he accepted the office which he now holds.”
Retired public law professor Hugh Corder said there was nothing sinister about Mogoeng taking accumulated leave that he would otherwise forfeit, but given the three times he strayed into controversy in the past year, his effective early departure seemed “sensible and beneficial”.
“He would have to recuse himself when the JSC sits on 11 June, so in that sense it is a good thing,” he told the M&G.
Corder raised Mogoeng’s remarks on vaccines but also his more recent chairing of JSC interviews to fill vacancies at the Constitutional Court, where the chief justice recalled an encounter five years ago in which cabinet Minister Pravin Gordhan asked him how Judge Dhayanithi Pillay, currently acting at the apex court, had fared.
Pillay was perhaps not considered a favourite for the nomination she missed, but the tone of Mogoeng’s remarks, and the fact that they followed a scathing attack on her and the minister by Economic Freedom Fighters leader Julius Malema did not sit well with Gordhan or legal commentators.
“A judge, and in particular the head of the judiciary, has to be brutally careful about entering into public controversy,” Corder said.
Mogoeng’s years as head of the judiciary are scattered with fervent, folksy expressions of faith that raised fears that religion would trump his commitment to the constitution. His peers vouch that this never happened, in the same way that he protected the independence of the judiciary in the politically fraught era of former president Jacob Zuma. It was in this light too, that he cast his decision to appeal the JCC ruling, and if he was woefully misguided, his remarks on the Middle East came with the disclaimer that he was bound by the policy adopted by the executive. His sin was not to deny the separation of powers, but to reject the rules guiding the judiciary on this score.
“It’s almost as if it was designed to trash you, to reduce you to nothing,” Mogoeng told a prayer meeting in March of his refusal to read out an apology.
“So I am going to appeal for the sake of the judges and the magistrates who will find life impossible if they were to be subjected to this kind of thing.”
His leave comes as the Constitutional Court’s register reflects a wealth of outstanding rulings, among them the Zondo commission’s application for a contempt order against Zuma.
Mogoeng did not sit in on the pleadings when the commission argued in March that the former president be imprisoned for contempt.
Lawson Naidoo, of the Council for the Advancement of the South African Constitution, said the timing of the chief justice’s departure was awkward for the bench.
“He is, of course, entitled to leave but he is leaving the judiciary in the lurch,” Naidoo said.
In 2015, Mogoeng issued a media statement warning that repeated, unfounded attacks on the judiciary risked destabilising the courts.
He did so after the then ANC secretary general, Gwede Mantashe, complained that the North Gauteng and Western Cape divisions of the high court had a “negative attitude towards the government”.
Mogoeng said at the time: “There have been suggestions that in certain cases judges have been prompted by others to arrive at a predetermined result. This is a notion that we reject. Judges, like others, should be susceptible to constructive criticism. However, in this regard, the criticism should be fair … General gratuitous criticism is unacceptable.”
Five years and several legal defeats later, Zuma declared open season on judges, in particular on those who wear the green robes of the Constitutional Court, and the ANC’s deputy secretary general, Jessie Duarte, picked up where Mantashe left off.
“Why is it that whenever we go to the North Gauteng [Pretoria] high court we know that we will lose the case? … It should be a judiciary that does not have a sisterhood and brotherhood in any political party,” she was heard saying in a leaked audio conversation.
This time Mogoeng has not pronounced himself on the onslaught, leaving Justice Minister Ronald Lamola and bar councils to do so. Similarly, it was Gauteng Judge President Dunstan Mlambo who announced restrictions at the courts countrywide in March 2020 as Covid-19 spread.
The Constitutional Court is scheduled to hear two more cases in this second term. The last, involving Zuma and the office of the public protector, is set down for 27 May. So far, two hearings are scheduled for August and none for September, meaning that even should he briefly return to work that month, as his spokesperson has insisted he will, Mogoeng is unlikely to hear any further matters.
“The chief justice’s four-year cycle to take his long leave commenced on 1 July 2018 but he was unable to take it due to his judicial and extra judicial commitments,” his office said.
It was at Mogoeng’s request that Khampepe was named as acting deputy chief justice to take over all his obligations.
She also retires later this year, and there is some doubt as to whether Deputy Chief Justice Raymond Zondo is open to promotion after chairing the state capture inquiry.
For a smooth handover, President Cyril Ramaphosa could be expected to begin consultations with political parties and the JSC within the next months about a successor.