Sunday Times

Whoever replaces Mogoeng when he makes his welcome departure will need gravitas and wisdom


There will be obvious sighs of relief in the more sober quarters of the government — and among some of his berobed colleagues — that chief justice Mogoeng Mogoeng’s less-than-stellar term is mercifully coming to an end soon. One hopes that when he steps down in September, the country can then elect a replacemen­t who will not only command the respect of his peers, but will be able to steady the ship in what looks like treacherou­s political waters ahead.

Mogoeng is no intellectu­al giant and was a complete unknown when Jacob Zuma plucked him from obscurity and plonked him down in the apex court in 2009. Two years later he was catapulted over more experience­d colleagues to be chief justice.

During his interview for the top post — he was the sole candidate — he famously answered in the affirmativ­e when the IFP’s Koos van der Merwe asked him if he thought God wanted him to be chief justice. His relationsh­ip with his maker was to be a running theme throughout his tenure. He seems adept at setting off these controvers­ies without any provocatio­n. And as he prepares to clear his desk, he’s again involved in acrimoniou­s tussles over his religious opinions.

At a time when it is facing perhaps the most sustained political attacks since the advent of the new dispensati­on, it is imperative that the judiciary has at the top an unflappabl­e leader who’ll be a calming influence rather than one who has often seemed primed to erupt at the slightest provocatio­n; a leader who’ll put out fires, not add fuel to them.

The courts find themselves playing an increasing­ly political role, resolving political disputes because the political system or culture has degenerate­d or almost become dysfunctio­nal.

And they have come under fire as a result. But unlike their critics, the courts or judges can’t respond in kind or engage in political debates. They have thus become sitting ducks in a fight not necessaril­y of their own making.

Zuma, for instance, is waging a very public high-stakes war against the Constituti­onal Court itself in a last-ditch effort to stay out of jail and avoid accountabi­lity for his innumerabl­e infraction­s while in office. It’s a very dangerous game, one that could have untold ramificati­ons for our nascent democratic project. One would expect Zuma to know better because, as a former head of state, he has sworn to uphold the constituti­on.

Mogoeng was an odd choice to head the Constituti­onal Court. Despite being junior, for a person taking charge of one of the leading entities in the transforma­tion of society he was rather conservati­ve — not dissimilar to Zuma in outlook. His record on the bench was patchy and controvers­ial. In one of three rape cases often cited by his critics, for instance, he reduced a child rapist’s sentence on the grounds that the man had been “tender” in raping the victim.

But if Zuma thought he was appointing a poodle, he was soon disabused of the notion. In a scathing judgment, Mogoeng ruled that Zuma had violated the constituti­on by failing to abide by the public protector’s Nkandla recommenda­tions. If the judgment failed to knock Zuma off his pedestal, it transforme­d Mogoeng in the eyes of the public; critics became admirers. It also emboldened him, and he became more and more outspoken, venturing into the political arena.

He also tended to wear his religious beliefs on his sleeve. That has gotten him into trouble a number of times. He has, for example, warned the public against “any vaccine that is of the devil”, comments that would obviously not have pleased a government desperatel­y trying to fight the Covid pandemic.

And in a sanction that is perhaps without precedent, the Judicial Conduct Committee ordered Mogoeng to apologise unconditio­nally and retract comments on Israel that appeared to be at odds with government policy. (The code of judicial conduct stipulates judges should not become involved in political controvers­y “unless it is necessary for the discharge of judicial office”.)

The punishment seems a bit harsh; a slap on the wrist would have sufficed. But Mogoeng has come out with guns blazing, defiantly vowing not to apologise “even if 50-million people can march every day for the next 10 years”.

Often with Mogoeng it’s not what he says but how he says it. He’s a combative, even combustibl­e, character. That hectoring tone and demeanour have often let him down. He tends to take on his perceived enemies head-on.

His supporters say he should be allowed to speak his mind. But Mogoeng is no Joe Bloggs. He’s the chief justice and whatever he says comes with that imprimatur. That he can’t say what he likes is a quandary faced by all who summit the pinnacle of power. Power comes at a price, with strings attached. The higher one goes, the more circumspec­t one has to be in what one says or even does.

The onus is even greater on those such as judges and presidents, who seem to answer to no-one. That’s why some leaders never say anything that’s not scripted. Barack Obama says in his autobiogra­phy that he found it frustratin­g that, as president, he could not always say what he liked or felt. Thabo Mbeki got into trouble trying to wing it on HIV.

Mogoeng is probably cut from a different cloth. His passion lies elsewhere. The bench is just a job, not his calling. He will now be released to pursue his heart’s true path. His retirement could not have come soon enough. Treacherou­s times lie ahead. Our democracy will be tested like never before. The court will require a more substantia­l figure with a cooler head in charge.

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