/ 9 October 2021

Chief Justice Mogoeng, an end to an erratic era

Chief Justice Mogoeng Mogoeng.
Awkward departure: The increasingly lesser-spotted Chief Justice Mogoeng Mogoeng leaves his post with more of a whisper than a bang, having on the whole kept his more extreme personal views in check and shown himself willing to defend the constitution. (Madelene Cronjé)

Chief Justice Mogoeng Mogoeng retires within days. We don’t know who will replace him and may not know for months but the legal community’s relief at the end of his tenure is unconcealed, and perhaps echoed by his own.

The relief was palpable this week as Deputy Chief Justice Raymond Zondo stood in for Mogoeng at the forced rerun of the Judicial Service Commission’s interviews for candidates to the Constitutional Court. 

The process resulted in the same candidates being recommended for appointment but the tone of the interviews was markedly more decorous than what monitoring group Judges Matter termed the “disastrous April session” where Mogoeng allowed questioning to descend into political ambush.

It was palpable, too, in the exasperated commentary on the dissenting judgment Mogoeng penned in Centre for Child Law v Director General Department of Home Affairs last month. 

The majority ruled that section 10 of the Births and Deaths Registration Act 51 of 1992 was unconstitutional in that it prohibited an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child’s mother or her express consent.

The law impaired the dignity of both unmarried fathers and their children by devaluing the bond they shared, the court said, as it stepped away from an outdated distinction between legitimate and illegitimate offspring. 

For Mogoeng, however, marriage could not be construed as an instrument of unfair discrimination. 

Rather, as it stood section 10 recognised “the undocumented, somewhat informal and unevidenced nature of a relationship other than marriage out of which a child is born”. If the law treated unmarried fathers differently it was, bluntly put, their own doing.

“Marriage is a choice. But, it is also such an important and invaluable social institution that it is not to be decried and wished or spoken out of its necessary existence or role … Marriage sits right at the centre of and has, from time immemorial, been foundational to the establishment of a stable and functional family structure or unit.”

It was hard to follow the legal rationale in Mogoeng’s rambling valorisation of social convention and stereotype. For attentive readers, his warning of the need to stop abusive unmarried fathers, including rapists, from legally imposing themselves on their children’s lives recalled two high court rulings, before he became chief justice, where he appeared to question the concept of marital rape.

As he leaves office, one of the complaints about the current state of the apex court is that its many minority rulings do not further jurisprudential development, but often confuse issues because its justices lack a common understanding of fundamental points of law. 

Another ready example is the recent minority rulings both on the contempt application against Jacob Zuma, and his spurious application for rescission of sentence after he was convicted.

Mogoeng did not hear the case and therefore had no hand in the ruling. The charge against him is rather that he took long leave amounting to early retirement while the judiciary weathered perhaps its worst political storm to date and his court grappled with the interpretation of case law on committal for civil contempt.

The divided bench could have used a leader who reasoned with colleagues to reach consensus. Instead, minority judgments flawed in law and logic saw the light twice, adding nothing to jurisprudence but fuel to the fire of Zuma’s insurrectionists

It was not always so. 

The first years of Mogoeng’s tenure were marked by a sense of relief that the darker fears about his appointment proved unfounded as he stood up to then-president Jacob Zuma, who overlooked then-Deputy Chief Justice Dikgang Moseneke in his favour.

Many shifted uncomfortably when Mogoeng said of the job, “God wants me to take it.”

But he showed the humility to seek the views and wisdom of more seasoned colleagues at the court and, on their telling, an ability to cut to the heart of complex matters. No one has complained that he tried to shoehorn his religion or conservatism into court debates or rulings.

Constitutional law expert Pierre de Vos said that looking back, there is a sense of ambivalence about Mogoeng’s legacy. Any overview suggests that the majority of his judgments “were more or less in line with the thinking of the rest of the court”. 

His 2016 Nkandla ruling (that Zuma had to pay back some money used for improvements to his home), midway through his term, stands as a salutary moment for the court and the country, not so much for any brilliance but for its unambiguous assurance that the judiciary would compel a wayward executive and legislature to obey the constitution. 

“Some say it went too far, that the language was overblown, but it was critical in shielding the integrity of the constitution and the rule of law against the abuse of power,” De Vos said. It’s worth remembering that by then Zuma had muttered about reviewing the powers of the Constitutional Court. 

But in 2015, after the government defied a high court order to detain Sudanese President Omar al-Bashir, Mogoeng led the country’s most senior judges to a meeting with the president, and told the media afterwards: “The constitutional reality is that it is the responsibility that rests on the shoulders of the judiciary to interpret the constitution and the law. That will never change.”

Four years later, as rumours spread on social media that political factions had corrupted the judiciary, he reiterated his warning that gratuitous attacks on the courts were too corrosive to tolerate.

Alison Tilley of Judges Matter noted that Mogoeng’s tenure coincided with “one of the most challenging periods for the bench” and said he confounded fears that he would be a lackey to the president who appointed him.

“He turned out to be a fiercely independent thinker, and led a Constitutional Court that ruled for and against the government on an independent basis.”

Mogoeng’s former colleague on Constitution Hill, retired justice Johann van der Westhuizen, has ventured in the Mail & Guardian that Mogoeng may have saved the judiciary at a critical moment.

But recently, the chief justice increasingly retreated from his role and responsibilities, and the redemptive view of his tenure has made way for one less nuanced. Some commentators think Mogoeng began absenting himself after he became the subject of direct but not undue criticism, including that he was hearing too few cases and spending too much time travelling. 

Tilley remarks that he leaves the apex court in disarray, crying out for an able administrator, as a result of failing to advertise vacancies promptly. At present, it contends with four vacancies, five if you include his own.

“His slightly early retirement came in the face of increasing criticism of his public conduct.”

This includes his insistence to appeal a finding by the Judicial Conduct Tribunal that he breached the Judicial Code of Conduct with criticism of South Africa’s foreign policy on Israel during a webinar in June 2020 and months later at a prayer meeting where he declared that he would never apologise for his views.

He faces a second complaint for decrying Covid-19 vaccines as evil. The public view is diametrically opposed. But Mogoeng’s argument to the tribunal finding in the complaint on Israel, that freedom of religion offered him cover for the remarks, suggests a stung man who has chosen the personal realm over public restrictions when pride dictated.

A change was evident too in his latest judgments, including his dissent in Public Protector and Others v President of South Africa and Others, public protector  Busisiwe Mkhwebane’s appeal against the appellate court ruling setting aside her adverse findings on donations to Cyril Ramaphosa’s campaign to become leader of the ruling party.

Mogoeng, dissenting, made the untenable claim that it “does not really matter” that she had relied on the wrong legislation that had nothing to do with money 

laundering, to find that there was a reasonable suspicion that President Cyril Ramaphosa was guilty of such in the financing of his campaign for the presidency of the ANC.

De Vos said this, and his rumination on birth registrations, showed him going regrettably “rogue”.

Fellow constitutional law scholar Dan Mafora commented that we may have seen an increasing tendency on Mogoeng’s part to project his personal views onto the subjects that he did choose to write about.

Hugh Corder, professor emeritus of public law at the University of Cape Town, said the Nkandla ruling marked the high point of Mogoeng’s tenure, but later years saw tendencies and rulings regrettably that colour one’s view of his decade in the post.

Among these he counted Mogoeng’s ill-tempered dissent from the majority judgment in 2017 where, in response to an application by the Economic Freedom Fighters, the court ordered Parliament to make rules for a process to remove a president. He publically accused his colleagues of embarking on “a textbook case of judicial overreach”..

“Perhaps appropriately because it is a religious metaphor, I would describe the tenure of Chief Justice Mogoeng Mogoeng as a curate’s egg, good in parts,” Corder said. 

The choice of a new chief justice is again fraught. The legal fraternity agrees that the highest court ideally needs that rare person who combines both juristic excellence and superb administrative skills to correct the weaknesses that form part of Mogoeng’s legacy.

By all accounts, Mogoeng will slip into retirement without fanfare. If he has chosen to speak it is colourfully but elliptically in the context of his church. 

Those who cheer at his awkward departure are not wrong, but may do well to remember that when all was at stake, he turned out to be the unlikely chief justice we never knew we needed. What he leaves behind could have been worse and can be fixed, should Zuma’s successor choose his successor wisely.

*This story was updated to reflect comment from Hugh Corder, professor emeritus of public law at the University of Cape Town