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
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’”.
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