Mogoeng absent for more
His absences from court this year have been criticised, but the Chief Justice defends his contribution to the judiciary
An indignant Chief Justice Mogoeng Mogoeng bristled in the face of the concerns swirling in the legal fraternity about his many absences from the Constitutional Court and that the highest court has, for large swaths of this year, had four acting judges on the Bench.
So far this year, the Constitutional Court has handed down 44 judgments, up to November 6. Mogoeng has been absent for 25 of these matters — more than half.
With Deputy Chief Justice Raymond Zondo chairing the commission of inquiry into state capture, this has meant numerous absences of the court’s two most senior judges, compounding a situation in which there are two long-running vacancies at the court and further holes created by the long leave taken by judges.
As a result, 16 of the matters handed down by November 6 were heard with four acting judges on the Bench. The Constitutional Court Bench consists of 11 judges and eight judges constitute a quorum. This means that at times the acting judges comprised half the Bench. One of these was the highly politically significant case brought by Corruption Watch, in which the court found that the appointment of the former national director of public prosecutions, Shaun Abrahams, was invalid.
Members of the legal fraternity said this situation was far from ideal. Reasons included uncertainty at the court, incoherence in the development of the court’s jurisprudence and the potential incentive for acting judges not to rock the boat when contributing to judgments — whether concurring or dissenting — with an eye on a permanent appointment. Even if that potential did not materialise, there was a danger of a public perception that it had, lawyers said.
In an extended interview with the Mail & Guardian, Mogoeng insisted his absences from court were work-related and justified.
He conceded that having four acting judges sitting at any given time was not ideal. But he stood by his decision to leave two of the vacancies at the court open for more than a year so as to allow for the pool of potential candidates to be widened.
The Judicial Service Commission recently advertised these vacancies and intends interviewing candidates during its April sitting next year. Mogoeng dismissed concerns that the presence of acting judges would have a detrimental effect on the court’s collegiality and the development of its jurisprudence, or that acting judges would behave unethically or against their oath of office because they were seeking permanent appointment to the Constitutional Court.
He said there was “a need for certainty”, but that this “has got nothing to do with incompetence. It has nothing to do with the unsuitability or the assumed unsuitability of those who are acting as judges. This must be addressed properly: any of the judges that we invite to act at the Constitutional Court has a wealth of experience not only as a lawyer but also as a judge, so this false notion that because someone is acting as a judge instability is bound to set in, or a measure of mediocrity or incompetence is bound to set in, must be clarified.”
He said there were occasions during a judge’s acting stint “when you realise that they are not as their reported judgments suggest that they are. That they require more experience from where they come from before they are suitable for appointment at the Constitutional Court but incompetence is never an issue.”
Mogoeng bridled against the notion that the delay in permanent appointments affected the court’s jurisprudence, because “the jurisprudence we develop is not necessarily a particular judge’s jurisprudence. There are some judges who develop a particular style of writing, there are some judges who are more forceful in the articulation of the issues than others. But we all contribute ultimately to the jurisprudence that is churned out by the court.”
He added that if acting judges did not dissent it should not be misconstrued as professional docility or an attempt to inveigle oneself into the court.
Over the past two years, Mogoeng has increasingly been absent from the court. Based on Southern African Legal Information Institute records, last year the Constitutional Court handed down 48 judgments. Mogoeng was absent from 19 of those.
In the 2016-2017 financial year Mogoeng made two overseas trips. This ballooned to 11 trips in the 2017-2018 financial year. In the 2018 calendar year, Mogoeng has made 12 overseas trips, including a week-long visit to the Supreme People’s Court in China in April, to attend the Ninth International Meeting in Justice and Law in Havana, Cuba, and to deliver the 2018 Sir Salamo Injia Lecture in Papua New Guinea in October.
The Papua New Guinea lecture meant the chief justice did not attend the Southern African Chief Justices’ Forum Conference in Malawi, which was held over the same period.
The 2018 trips cost taxpayers R919752 for Mogoeng’s travel and R2 234 894 for his entourage, according to information provided by the OCJ. Over the past two financial years, the OCJ said the total cost of travel for Mogoeng was R1 967 499. The cost of travel for his entourage over that period was R5 738 457.41.
Mogoeng usually travels with his wife, who flies first class with him, and two staff members, who fly business class.
Mogoeng’s absences from the Constitutional Court do not compare favourably with his predecessors. According to estimated calculations by the M&G and the nongovernmental organisation Judges Matter, former chief justice Pius Langa missed 19 of the 121 cases heard when he headed the court. Arthur Chaskalson missed five out of 342 cases heard when he was chief justice. Mogoeng’s immediate predecessor, Sandile Ngcobo, appears to have missed five out of the 58 cases heard during his time as chief justice.
But Mogoeng pointed out the changing contexts and functions during the various tenures, especially since amendments to the Constitution had created the office of the chief justice, which administers matters involving the judiciary.
He reiterated that his position was not solely reserved for hearing cases, but he also spent time away from the court to do administrative work for the South African judiciary and to fulfil international obligations.
“You can even get my schedule, go through it and check, which one you think was an unnecessary waste of resources and time, that I should have been in court instead,” he said. “I have no doubt that any fair-minded person would arrive at the conclusion that it was necessary for this man to undertake those trips.
“I have no regret, for the record, for having sat in [fewer] cases. I think I have done more than enough; and as and when my responsibilities demand it, I will not sit in court … Otherwise the judiciary is going to fail and my other judicial responsibilities will fail because I am trying to silence critics who think I should be in court in every matter, even when there are other equally demanding responsibilities elsewhere.”