MO­GO­ENG MO­GO­ENG: JUDGE ME ON MY OWN MERIT

His ap­point­ment raised pub­lic ire, but the chief jus­tice has gone on to earn the re­spect of his crit­ics

CityPress - - Front Page -

It was Septem­ber 2011 when Pres­i­dent Ja­cob Zuma an­nounced that labour court Judge Mo­go­eng Mo­go­eng would be­come the coun­try’s fourth chief jus­tice. At the time, the lit­tle-known judge was slammed as a Zuma man, doomed to fail in the job pre­vi­ously oc­cu­pied by the ven­er­ated Arthur Chaskalson and Pius Langa. For­mer DA leader He­len Zille was among the first to cast as­per­sions on the newly ap­pointed chief jus­tice, ques­tion­ing if he had the req­ui­site out­stand­ing le­gal skills, or if he was sim­ply “usual” or “ad­e­quate”.

Zille wrote to Zuma, ask­ing for an ur­gent meet­ing to ad­dress con­cerns that Mo­go­eng’s his­tory as a judge showed he had con­sis­tently failed to dis­play the “un­wa­ver­ing ad­her­ence and com­mit­ment to the Con­sti­tu­tion” re­quired of a chief jus­tice.

In a state­ment, she later wrote she did not be­lieve Mo­go­eng had re­vealed him­self, in his past judg­ments, to be “suit­ably de­fen­sive of the au­ton­omy of the ju­di­ciary”.

Zille was in good com­pany. Labour fed­er­a­tion Cosatu ques­tioned Mo­go­eng’s nom­i­na­tion be­fore he was ap­pointed, sug­gest­ing he was so bad he should not even have be­come a judge.

Cit­ing the case of State v Moipo­lai, in which Mo­go­eng re­duced a 10-year prison sen­tence for rape to an ef­fec­tive five years on ap­peal, Cosatu said it was con­cerned his judg­ments re­flected “a mind-set and val­ues that are in­con­sis­tent with the Con­sti­tu­tion and, more specif­i­cally, a lack of sen­si­tiv­ity to a court’s role in pro­tect­ing the rights and in­ter­ests of vul­ner­a­ble groups”.

“The ba­sis for his de­ci­sion ap­pears to re­late to the fact that they were pre­vi­ously in a con­sen­sual re­la­tion­ship as com­mon law hus­band and wife,” Cosatu said, adding that Mo­go­eng viewed mar­i­tal rape as a less se­ri­ous of­fence. Zille changed her tune this week. “I was wrong,” she said. She be­gan to be­lieve in the or­dained pas­tor from Ga-Mok­gatlha, 30km north of the North West town of Groot Marico, when she at­tended a Ju­di­cial Ser­vice Com­mis­sion ( JSC) hear­ing he chaired in Cape Town.

“He is a very strong chief jus­tice and puts the Con­sti­tu­tion first. He also pro­tects court in­de­pen­dence,” she said on Fri­day.

On Tues­day, Mo­go­eng led a full Con­sti­tu­tional Court Bench, hear­ing one of the most highly politi­cised cases in re­cent times. At its heart was the man who ap­pointed him a few years ago.

Two op­po­si­tion par­ties, the DA and the Eco­nomic Free­dom Fight­ers, were seek­ing a rul­ing on the le­gal stand­ing of Pub­lic Pro­tec­tor Thuli Madon­sela’s re­port, which found Zuma ben­e­fited un­duly from the R246 mil­lion up­grades to his Nkandla home, as well as a declara­tory or­der that he vi­o­lated the Con­sti­tu­tion he had sworn to up­hold.

Dur­ing the pro­ceed­ings, which he said would sit un­til 7pm if need be, Mo­go­eng seemed to ask Zuma’s ad­vo­cate, Jeremy Gauntlett SC, and Par­lia­ment’s ad­vo­cate, Lindi Nkosi-Thomas SC, the ques­tions all those watch­ing on TV wanted to know.

Was it not the re­spon­si­bil­ity of the Na­tional As­sem­bly to hold the pres­i­dent to ac­count based on Madon­sela’s find­ings, “rather than con­duct an in­ves­ti­ga­tion de­signed to show that the Pub­lic Pro­tec­tor was wrong?” and “Was it not ap­par­ent when the Pub­lic Pro­tec­tor was mak­ing bind­ing rec­om­men­da­tions or sug­ges­tions?” The son of ru­ral folk, who sold their cat­tle to put him through his law de­gree at the then Univer­sity of Na­tal (now in­cor­po­rated into the Univer­sity of KwaZulu-Na­tal), also lamented the cost of things, say­ing one could buy some­thing for R20 in the shops, but govern­ment spends R50.

And when Gauntlett told the court the in­fa­mous fire pool cost R2.6 mil­lion, he asked: “A pool?”

Gauntlett con­ceded that “the pres­i­dent is re­quired to carry out re­me­dial ac­tion” re­gard­ing Madon­sela’s re­port. “The Pub­lic Pro­tec­tor’s re­port has to be com­plied with.” Mo­go­eng drew laugh­ter when he asked Gauntlett: “What has been asked for here that you dis­agree with?” Mo­go­eng had all the big-match tem­per­a­ment needed for Tues­day’s sit­ting, his de­meanour un­changed from that which he dis­plays in ju­di­cial in­ter­views and JSC hear­ings.

One of­fi­cial close to him at work says he is a “worka­holic who will work many hours un­til the work is done”, fa­mously in­ter­view­ing Os­car Pis­to­rius’ trial judge, Thokozile Masipa, for the judge pres­i­dent po­si­tion in the North Gaut­eng High Court un­til mid­night.

A col­league, who spoke on con­di­tion of anonymity, de­scribed him as a “straight­for­ward man who, if he doesn’t like some­thing, will tell you straight”.

by ABRAM MASHEGO

One of his close friends, a se­nior law pro­fes­sional, told City Press: “He is a very in­de­pen­dent man; he is not swayed by any­one. He un­der­stands the law and al­ways gets the job done. To me he is one of the best ap­point­ments we have made. “He knows that he is be­ing watched.” In 2013, Mo­go­eng took on those who be­lieved he was Zuma’s “yes man” when de­liv­er­ing the se­cond Onkgopotse Tiro Me­mo­rial Lecture at Univer­sity of Lim­popo’s Tur­floop cam­pus. He said he did not un­der­stand why it could be sug­gested he was Zuma’s man when it was pro­ce­dure for the pres­i­dent to ap­point the chief jus­tice.

“All judges af­ter 1994 were ap­pointed by the pres­i­dent. Does this mean that those ap­pointed by [for­mer] pres­i­dents Nelson Man­dela and Thabo Mbeki will do ev­ery­thing to please them, or is it only those ap­pointed by Pres­i­dent Zuma?” he asked.

“All [for­mer chief jus­tices] were nom­i­nated by the pres­i­dent. Does it then mean that they were in the pocket of a politi­cian?”

Mo­go­eng’s religious views earned him an­other lam­bast­ing af­ter he sug­gested, at the se­cond an­nual African Law and Re­li­gion Con­fer­ence at Stel­len­bosch Univer­sity in 2014, that “all man­ner of ills would be turned around sig­nif­i­cantly if re­li­gion were to be fac­tored into the law-mak­ing process”.

Mo­go­eng ad­mit­ted to jour­nal­ists the crit­i­cism heaped on him had stung, and that it had made him “a bet­ter judge”.

He is mar­ried to his child­hood sweet­heart, Mmaphefo, and they have three chil­dren: Jo­hanna, Mo­gaet­sho and Oteng.

His brief bi­og­ra­phy, pub­lished on the ju­di­ciary.org web­site, de­scribes his life as “like a ful­fil­ment of the scrip­ture in Zechariah 4:10, which reads: ‘De­spise not the day of small be­gin­nings’”.

To­gether, Mov­ing Gaut­eng City Re­gion For­ward

08600 11000

hot­line@gaut­eng.gov.za

WORK­ING TO IM­PROVE SER­VICE DE­LIV­ERY AND DE­VELOP COM­MU­NI­TIES

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