The yes-man about whom Zuma -- and others -- got it so wrong

NEVER in his wildest dreams did President Jacob Zuma imagine that the man he plucked from an anonymous existence to head the country’s highest court would one day preside over what could turn out to be his career-ending fiasco.

The appointment of Mogoeng Mogoeng as chief justice of the Constitutional Court was meant to achieve precisely the opposite — to fortify Zuma against any possible future prosecution. That, in any case, was the public perception.

After his famous party victory at Polokwane in 2007, Zuma ensured that the Scorpions, his nemesis, was shamelessly killed off and all corruption charges against him were dropped. Once he was in office, the roles were quickly reversed. The hunted became the victor. The National Prosecuting Authority was effortlessly subdued.

He was now master of all that he surveyed, with untrammelled power to appoint people to key positions. He preferred the less competent or those inclined to corruption. They tended to be more malleable. Control of the judiciary was to be the icing on the cake.

When the chief justice’s position became vacant, the deputy chief justice, Dikgang Moseneke, a brilliant jurist with a not dissimilar political pedigree, was overlooked for Mogoeng, a rank outsider. Zuma, it seemed, was up to his old tricks.

A shambolic Judicial Service Commission hearing on his appointment did not help matters. Mogoeng came across as a God fanatic, with a scant record on the bench and a short fuse to boot. The nation watched with some trepidation. Was this the man to walk in the footsteps of Ismail Mohamed, Arthur Chaskalson and Pius Langa? Was the Constitutional Court, ultimate custodian of our democracy, safe in his hands? Whatever the reasons for his appointment, his scholarship or jurisprudence records didn’t seem to be among them.

Probably spurred by a desire to prove his critics wrong, Mogoeng was a pleasant revelation. His detractors — and I include myself — had spoken too soon. He deserves, if not an apology, certainly a reevaluation as to the type of chief justice he’s turning out to be.

Delivering the Nkandla judgment this week, Mogoeng demonstrated in the most emphatic way possible that he — and the court he leads — will be nobody’s poodles. The judgment, in elegant yet digestible prose, was as devastating as it was riveting to watch. That Zuma was on the menu made the judgment all the more remarkable. If Zuma had wanted a yes-man, he’d picked the wrong guy. Mogoeng had completely gone rogue.

But the fact that we’re pleasantly surprised by the moral courage and clarity exemplified by this judgment probably attests to the low opinion we have of our institutions. When the chips are down, we don’t expect them to stand up to political meddling or wrongdoing. This verdict debunks that in no uncertain terms, at least as far as the judiciary is concerned.

It is ironic that Mogoeng in this instance fortuitously joined hands with public protector Thuli Madonsela, another Zuma appointee who’s also thankfully gone astray, to hand their benefactor probably the biggest defeat of his presidency.

But as Madonsela pointed out after the judgment, Zuma’s intransigence, perplexing in its audacity, has probably done the cause of constitutionalism a favour. It has allowed the highest court in the land the opportunity to deliberate and pronounce in clear and unambiguous terms on the roles and responsibilities of public officebearers, the president included.

That the court found against Zuma was no surprise. His legal team had waved the white flag even before the first shot was fired. But it was the court’s strong affirmation of the public protector’s powers that many will find reassuring. There’s no doubt or uncertainty now for Zuma and other wrongdoers to use to escape responsibility.

But the judgment will serve a purpose well beyond this case. One can imagine scholars and officials quoting it ad nauseam in years to come. It was a masterclass, a seminal lesson, not only on how public officials should carry out their duties but how the constitution can come back to bite them should they err. As Mogoeng put it: “Public office-bearers ignore their constitutional obligations at their peril.”

Some may worry that the judgment may have ventured into politics. Instructing the National Treasury to report back to the court, for instance, may seem like judicial overreach. But that’s understandable. It cannot report to Zuma. The court, in this case, happens to be the only adult in the room.

Since the case revolved around the powers of the public protector, one would have expected the court to suggest who or how that individual should be selected, since the president, who appoints them, is also not beyond the purview of their investigation. But that’s a small quibble.

The fact that the matter will now go back to parliament, which has to discipline Zuma, and the ANC, which holds his fate in its hands, points to a lack of accountability in our political system.

Which is why a thorough review of our electoral system is not only necessary but imperative.