‘The law remains the final word’
Chief justice says President Zuma and his executive have assured him that, from now on, an attitude of respect towards the courts will prevail
Chief Justice Mogoeng Mogoeng is confident that the country will never again witness the kind of large-scale, unsubstantiated criticism that was recently directed at the judiciary by the ANC and its all allies. In an interview with City Press on Friday, Mogoeng suggested the judiciary had made it clear how strongly it felt about the matter and those who had attacked it in the manner they did would by now have realised their mistake.
Mogoeng spoke to City Press a day after a delegation of nine senior judges met with President Jacob Zuma and some of his Cabinet members about deteriorating relations between the two crucial arms of the state they each represented – the executive and the judiciary.
“I’m confident there is a much deeper realisation about just how damaging it could be for the judiciary, as an institution, and our constitutional democracy if these kinds of attacks are sustained and repeated,” he said.
“That is the restraint I believe will cause none of the key role players to ever find it easy to go back to where we come from.”
Mogoeng had requested the meeting, which was chaired by Zuma after senior leaders of the ANC, including secretarygeneral Gwede Mantashe and SA Communist Party general secretary Blade Nzimande, had complained about the judiciary.
They spoke of what they termed “judicial overreach”, and others even alleged that magistrates sometimes connived and met with certain interested parties to predetermine cases.
Mogoeng said he believed in the integrity of those who had formerly hurled insults at judges and magistrates. As part of the government delegation, these people had given assurances – during the frank discussions – that it would not happen again.
“Our departure point is our Constitution. It is the rule of law, and that same Constitution vests the authority to interpret the Constitution and the law to resolve disputes in the courts of this country. That position remains unchanged,” said Mogoeng.
After the meeting, President Zuma emphasised government’s commitment to the independence of the judiciary, the rule of law and the separation of powers.
Zuma said they had agreed in the meeting to exercise care and caution with regards to public statements and pronouncements criticising one another in future.
Mogoeng said there was room for a broader engagement in a a forum such as a seminar to allow more time to dissect and debate whether the judiciary was overreaching.
“Our response is we do not want to be overly defensive ... It’s healthy that we have that debate.”
Mogoeng said that, on their part, the judges had made an undertaking to execute their mandates in a manner that was not contrary to the Constitution.
He added that anyone who had a reason to believe a member of the judiciary had behaved unethically had a duty to “step forward, strengthened by the evidence he or she has”.
“They must use available structures, like the Judicial Conduct Committee or the Judicial Services Commission, to report judges or magistrates who are believed to have erred.”
However, Mogoeng said he was not aware of any conniving judge or magistrate.
Some of the leaders of the ANC were rattled by Deputy Chief Justice Dikgang Moseneke’s remarks in November last year when he questioned the wide-ranging powers that the Constitution bestowed on the president.
This was seen to be directed at President Zuma, who has the power to appoint and fire heads of key state institutions, such as the National Prosecuting Authority.
Mogoeng would not be drawn to comment about his deputy’s utterances, except to say he appreciated the criticism of ANC treasurer-general Zweli Mkhize, who had “responded so well”.
Mogoeng said he had thanked Mkhize for his substantial input. Mkhize had questioned why anyone would stop at the powers of the president and not conduct a review of the powers of all arms of the state.
“[Mkhize] didn’t generalise; he was specific. He spoke about the deputy chief justice and explained himself. We expect of everybody who is inclined to criticise us to be systematic, to substantiate the criticism levelled against any one of us or the entire judiciary, if need be,” said Mogoeng.
He added that there would always be tension between the judiciary and the executive, as had been the case for more than 100 years. “If we ever get to a point where we agree on everything, it will be an indication that our constitutional democracy is fake, if not dead.”
Speaking about criticism against chapter 9 institutions, such as the Public Protector, Mogoeng said it was important to ensure that the criticism did not have the unintended consequence of delegitimising these institutions.
LORD OF LAW Chief Justice Mogoeng Mogoeng is the most senior judge of the Constitutional Court and heads the judiciary of SA. He says the Constitution must ultimately decide the outcome of all disputes