When two good people stood up and did something to prevent the triumph of evil
Mogoeng Mogoeng and Thuli Madonsela broke mould of pliant minions
● Surveying the battlefield of broken reputations that accompanied the fall of Jacob Zuma, at least two public figures emerge with their integrity intact. And the irony is that neither of them had seemed predestined to have their names inscribed on the very short roll of honour of the Zuma era.
Both Chief Justice Mogoeng Mogoeng and former public protector Thuli Madonsela were appointed by Zuma, their selection marking a break from the list of duds, flunkeys and praisesingers who became the poster children for the excesses of the Zuma era.
The further irony is that Mogoeng’s elevation to the Constitutional Court in October 2009 was greeted with derision by legal commentators — and commentators without the slightest insight into the intricacies of constitutional law.
Former Cosatu spokesman Patrick Craven was among those who spoke out against Mogoeng, saying: “It would appear that Justice Mogoeng’s qualifications and experience meet the minimum requirements for appointment.” Cosatu said that because Mogoeng had been a prosecutor in the Bophuthatswana homeland, there were “serious concerns regarding his role under apartheid”.
The concerns over Mogoeng were mainly about his supposed views on violence against women and children, or what Cosatu called “a lack of sensitivity to a court’s role in protecting the rights and interests of vulnerable groups”.
Undeterred, Zuma promoted Mogoeng to chief justice in mid-2011, even though he was among the court’s most junior members. He was also anointed ahead of then deputy chief justice Dikgang Moseneke, considered politically suspect because of his PAC background. That and a speech he had made at his 60th birthday party in 2008.
Moseneke’s remarks were a pointed jab at
Zuma, newly triumphant over Thabo Mbeki at the ANC’s Polokwane conference in 2007.
Moseneke said his job and that of the Constitutional Court justices was not to please the ANC or the delegates at Polokwane, but to do the right thing by the people of South Africa.
It was political dynamite, and commentators felt it was the reason Moseneke was overlooked in favour of the bantustan prosecutor with odd views on child rape. Here, Zuma may have thought, was a man who might turn a judicial blind eye to his nefarious activities.
He thought wrong, though, and South Africa was all the richer for his “error of judgment”.
When the government openly defied a court order that it arrest Sudanese dictator President Omar al-Bashir, for whom a warrant of arrest had been issued by the International Criminal Court, Mogoeng led a delegation to Zuma to express its concerns at ANC politicians’ attack on the courts.
Mogoeng said then: “Many people have criticised the judiciary and we just want to assure Picture: Vathiswa Ruselo the nation that the judiciary remains committed to carrying out its constitutional mandate and certain issues are dealt with, not to attack anyone. We reiterate principle, and we will not go blowby-blow with any personality.”
He continued: “We are aware of one eyebrowraising, apparent disregard of a court order and we believe this meeting is strong enough to discourage anyone of doing it again, but if it had to happen, we will cross that bridge when we get there because we have confidence that they will make sure such doesn’t happen again.”
For Zuma, though, there was worse to come from Mogoeng, in the form of the Constitutional Court’s judgment on Nkandla in March 2016. Madonsela’s report, Secure in Comfort, on the unauthorised security upgrades to Zuma’s residence, had been rejected by Zuma, who sought to minimise it to “recommendations”.
But Mogoeng left no doubt where the court stood on Madonsela’s powers, stating: “Her investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power.”
He continued: “The president thus failed to uphold, defend and respect the constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers.” And: “The president’s alleged disregard for the remedial action taken against him does seem to amount to a breach of a constitutional obligation.”
If Zuma’s choice of a chief justice proved to be a decision he would come to regret, this was no less true in the case of Madonsela.
What is instructive, though, and telling of the lows of public discourse to which South Africa sank in this sorry era, was the personal insults that Madonsela had to endure, which Mogoeng, by virtue of his gender alone, was spared. For example, the ANC-aligned Congress of South African Students was forced into an embarrassing retreat in March 2014, after its shameful comment about what it called Madonsela’s “big, ugly nose”.
Zuma could not have guessed that Madonsela would revitalise the office of public protector, after it had fallen into powerlessness under Selby Baqwa and, even more so, Lawrence Mushwana, a former ANC MP.
When Zuma tried to dismiss her Nkandla report, she came out fighting in March 2015: “The office of the public protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation.”
Fittingly, Madonsela was in court when in December last year, Gauteng Judge President Dunstan Mlambo rejected, with costs, Zuma’s application to have her State of Capture report, on Zuma’s dealings with the Guptas, set aside.
It took a handful of brave people to pull the country out of the abyss, and back on to the path of hope that was the essence of the post-1994 era of Nelson Mandela. That it took two people appointed by Zuma to do this only adds further spice to this happy conclusion, further proving the Irish statesman Edmund Burke’s dictum: “The only thing necessary for the triumph of evil is for good men [and women] to do nothing.”