Chief justice Mogoeng Mogoeng’s remaining months in office may be the most crucial in terms of shaping his legacy, given the unprecedented political attacks on the judiciary in recent weeks and criticism of its governance.
The past year has been a trying one for the chief justice, whose term ends in September.
The judiciary he heads is under fire, and he’s faced personal censure for courting political controversy with comments about Israel and criticism for remarks about Covid-19 vaccines and the devil.
The most prominent attack has come from former president Jacob Zuma, who has not only defied a Constitutional Court order to appear before the state capture commission, but also questioned SA’s constitutional foundation.
Though Zuma’s fractious relationship with the judiciary is not new, the tension has clearly risen a few dozen notches.
The latest round in the battle was Zuma’s snubbing of Mogoeng’s directive that he submit a 15-page affidavit outlining what he thinks would be a suitable sanction in the contempt of court case brought against him by the state capture commission.
Instead, Zuma provided a 21-page letter complaining of a “judicial dictatorship” — something that, worryingly, has been echoed by ANC MPs in the latest round of Judicial Service Commission (JSC) interviews to fill vacancies on the bench.
In his statement alerting Mogoeng that he would not be complying with his directive, Zuma complained for the umpteenth time that he was being treated unfairly and that the judiciary was being used against him.
Ironically, the only evidence in the public domain that suggests impropriety on the part of judges relates to pro-Zuma shenanigans — that the State Security Agency sought to pay off judges to rule in his favour and that Western Cape judge-president John Hlophe attempted to influence Constitutional Court justices to find in Zuma’s favour.
In a leaked recording from a meeting between Zuma and the ANC top six, deputy secretary-general Jessie Duarte also laid into the state capture commission and its chair, deputy chief justice Raymond Zondo, accusing him of being antagonistic in dealing with Zuma and having a “prosecutorial attitude”.
But the political onslaught has not been limited to the ANC.
At a media briefing late in March, EFF leader Julius Malema made unsubstantiated allegations against the judiciary, referring to the rule of law being applied selectively in SA and accusing the Zondo commission of representing a certain faction of society.
Justice minister Ronald Lamola has repeatedly come out to bat for an independent judiciary that’s free from unfair, unjustified attacks from any quarter.
“Casting aspersions on judges which are unsubstantiated, unfair and untrue should be condemned,” he said.
On Zuma’s latest show of disdain for judicial processes, Lamola said the executive had provided the state capture inquiry with sufficient powers and “teeth” to “have a life of its own”.
“Unfortunately, Zuma has elected not to participate, but be that as it may, we will await the outcome of the Constitutional Court case,” he said.
“The rule of law will always have to prevail. We will respect the outcome as decided by the courts.”
Council for the Advancement of the SA Constitution director Lawson Naidoo is concerned about the governance of the judiciary — including the silence of the JSC in the face of such political attacks.
“Without a doubt judges are caught in the political crossfire, but what is also of concern to us is the lack of response from the governance structure, the JSC,” Naidoo said.
Another problem was the fact that Malema sat on the JSC, which interviews and shortlists judges, yet he was himself facing two criminal trials.
“The governance structure — the JSC — should be leading on issues such as these.
“The chief justice sits as the chair of the JSC, which is responsible for oversight,” Naidoo said.
Mogoeng, however, had kept strangely mum.
Also of concern was that the JSC was meant to report to parliament, but had not done so in the past few years.
“It is odd that the chief justice has not been more vocal in defence of the judiciary,” Naidoo said.
“He should act as its last line of defence, but we have silence.”
It is not as if Mogoeng has never responded to attacks on the judiciary.
In 2015, he held an unprecedented media briefing, together with his then deputy, Dikgang Moseneke, and all the heads of court, after the Pretoria high court ruled that Sudanese president Omar al-Bashir, who was wanted by the International Criminal Court for crimes against humanity, should not be allowed to leave SA.
Then, in 2019, he called a media briefing to address crude allegations that judges had been paid off by President Cyril Ramaphosa’s election campaign.
University of Cape Town democratic governance and rights unit senior researcher Chris Oxtoby agreed that Mogoeng’s response to the latest onslaught had been markedly different.
“He has been very quiet in the face of overt, unsubstantiated allegations,” he said.
Oxtoby, too, considers governance a problem, referring to the process by which judges are held accountable.
Hlophe was but one example of flaws in that process.
The Western Cape judge-president was only recently found guilty of misconduct by the JSC’s Judicial Conduct Tribunal, in a matter dating back 13 years.
“These allegations hanging over judges and the judiciary over long periods are a very real problem and can have consequences for the credibility of judges and the judiciary,” Oxtoby said.
Mogoeng’s appeal against the Judicial Conduct Committee’s censure of his comments on Israel is pending, but what is clear is that the coming months will determine his legacy as head of the judiciary.
Should he not take a stand and show some leadership, it seems clear — as Oxtoby notes — that he will be remembered more for his conduct off the bench than on it. — Financial Mail