MISSING IN ACTION?
As the judiciary comes under unprecedented political attack, and concerns are raised about governance at the institution, the chief justice seems strangely silent
hief justice Mogoeng Mogoeng’s remaining months in office may be the most crucial in terms of shaping his legacy, given 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 comments about Covid vaccines and the devil).
The most prominent attack has come from former president Jacob Zuma, who has not only defied a Constitutional Court order
Cto appear before the state capture commission, but also questioned SA’s constitutional foundation. While 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. (The commission asked for a two-year prison sentence to be handed down.)
Instead, Zuma provided a 21-page letter complaining of a “judicial dictatorship” — something that, worryingly, has been echoed by ANC MPs in the current 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 complains for the umpteenth time that he is being treated unfairly and that the judiciary is 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.
Of course, Zuma never was a constitutionalist — and he never made a secret of this, once even musing that he would “change a few things” if he could be dictator for six months.
That the ANC in its wisdom chose such a person to lead the party and the country speaks volumes about its commitment to the constitution at that time.
It’s a picture that won’t have been helped by recent comments attributed to party deputy secretary-general Jessie Duarte.
In a leaked recording from a meeting between Zuma and the ANC top six, Duarte 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”. (Duarte subsequently rounded on the backers of ANC secretary-general Ace Magashule for leaking the recording of her diatribe.)
But the political onslaught has not been limited to the ANC; the EFF and other marginal parties in parliament have also taken up the cudgels.
EFF leader Julius Malema, for example, has made unsubstantiated allegations against the judiciary. At a media briefing late last month, he referred to the rule of law being “applied selectively” in SA, and accused the Zondo commission of representing “a certain faction of society”.
Malema also sits on the JSC as a representative of parliament — though if the recent interviews are anything to go by, the commission has become a platform for him and the EFF to retaliate against political opponents.
For his part, justice minister Ronald Lamola has repeatedly come out to bat for an independent judiciary that’s free from unfair, unjustified attacks from any quarter.
“My position is clear, while a constitutional democracy remains a contested terrain … and at times litigants may be aggrieved, we have to guard the independence of the judiciary and safeguard the rule of law,” he tells the FM.
“Casting aspersions on judges which are unsubstantiated, unfair and untrue should be condemned.”
On Zuma’s latest show of disdain for judicial processes, Lamola says the executive has 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 says. “The rule of law will always have to prevail. We will respect the outcome as decided by the courts.”
As worrying as the political machinations and attacks are, they are accompanied by an equally problematic issue, says Lawson Naidoo, director of the Council for the Advancement of the SA Constitution. He’s 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,” says Naidoo.
Another glaring problem, he says, is the fact that Malema sits on the JSC, which interviews and shortlists judges, yet he is 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,” he says.
Mogoeng, however, has kept strangely mum. Also of concern is that the JSC is meant to report to parliament, but has 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,” says Naidoo. “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.
ANC leaders at the time screamed “judicial overreach”, but Mogoeng held his ground, warning that such criticism could delegitimise the courts.
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.
Chris Oxtoby, senior researcher at the University of Cape Town’s democratic governance & rights unit, agrees that Mogoeng’s response to the latest onslaught has been markedly different.
“He has been very quiet in the face of overt, unsubstantiated allegations,” he says.
But Oxtoby notes that political attacks are one of many challenges facing the judiciary.
He, too, considers governance a problem, referring to the process by which judges are held accountable. Hlophe is but one example of flaws in that process, he says: 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,” says Oxtoby.
Other issues include the JSC failing to play its role, as well as overall resource and administrative challenges within the judiciary.
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.
Casting aspersions on judges which are unsubstantiated, unfair and untrue should be condemned