‘No ulterior motives’ for Mogoeng move
● Chief justice Mogoeng Mogoeng’s long leave means that he has effectively vacated office five months ahead of his retirement and will, unless he cancels his leave, not be returning. It means that the Constitutional Court will be operating in its May term with only seven permanent judges and that Mogoeng
will not be there to chair the Judicial Service Commission (JSC) meeting that will determine whether Western Cape judge president John Hlophe is guilty of gross misconduct.
However, speculation of ulterior motives — for example, that he took leave to avoid signing an arrest warrant for former president Jacob Zuma — is misplaced.
Constitutional Court judges are entitled to three-and-a-half months of “vacation leave” for every four-year cycle as a judge of the highest court. In a statement on Thursday, the office of the chief justice clarified that Mogoeng’s leave became due on July 1 2018 but he has been too busy to take it until now, and it would have been forfeited if he had not taken it. It has also happened before that appeal court judges have taken their leave just ahead of their retirement.
The chief justice’s last day is October 11, but the leave period is calculated on the basis that it excludes recess time. Though Mogoeng’s request for long leave did not indicate an end date, the three-and-a-half-month period would bring the end of his leave time past his retirement date. All signs are that he has indeed gone for good.
Mogoeng announced his long leave to the JSC on the last day of the JSC interviews, on
April 23. It was the end of a reportedly tense day, particularly the interview of Western Cape chief justice Daniel Thulare, during which Mogoeng publicly clashed with EFF leader Julius Malema. However, Mogoeng’s letter requesting his long leave was sent a couple of days earlier — on April 21 — putting paid to speculation that his leave was connected to that fight.
Speculation that he was avoiding signing an arrest warrant for Zuma is also based on little law and no facts. The chief justice did not sit in the application by the state capture commission that the former president
should be held in contempt of court. Mogoeng would therefore, whether on leave or not, have nothing to do with the Constitutional Court’s order in that case.
The court has not handed down its judgment yet and it is not a given that it will order imprisonment. If the court does sentence Zuma to prison, an arrest warrant may not be necessary — depending on how the order is written. If a warrant is required, it is highly unlikely that the chief justice would be the one to sign it.
The chief justice’s long leave will also have no impact on the outcome of the complaint
against him for the comments he made on SA’s foreign policy on Israel. Mogoeng was ordered by the Judicial Conduct Committee to apologise for his remarks that SA’s policy could do with a rethink and to retract a statement that he would never apologise. He has appealed that decision, and whether or not he is on leave, and even after retirement, that process will continue.
What the long leave does mean, though, is that the highest court will be without Mogoeng and without deputy chief Justice Raymond Zondo for its May term, as the state capture commission has been extended until the end of June. The ConCourt is supposed to sit with 11 justices and is quorate with eight.
President Cyril Ramaphosa is still to make two appointments to the court, leaving it with only seven permanent justices currently sitting. However, there are two acting justices — KwaZulu-Natal High Court judge Dhaya Pillay and Northern Cape judge president Pule Tlaletsi.
Justice Sisi Khampepe has been appointed to act as a deputy chief justice. In addition to these duties, she will, in terms of the Superior Courts Act, “exercise the powers or perform the functions” of Mogoeng in his absence.
The chief justice is, under the constitution, also the chair of the JSC. JSC spokesperson Dali Mpofu SC confirmed this week that Mogoeng will not participate in the June meeting that will decide whether the embattled Western Cape judge president will be referred to parliament for an impeachment process over a 2008 complaint of misconduct by all the then justices of the Constitutional Court. It is unclear who will sit in for the chief justice. Mpofu said the public will be informed in due course.
However, it may well be that Mogoeng would have, in any event, seen fit to recuse himself from that meeting given that Hlophe has laid a separate complaint of judicial misconduct against him — connected to a more recent dispute between Hlophe and his deputy at the Western Cape High Court — that is still pending.
Whatever the reasons for Mogoeng’s early departure, it appears to be part of a recent pattern. The chief justice raised eyebrows when he did not even sit in the application for Zuma to be held in contempt, given the tradition that the leaders of a court preside in the most politically sensitive cases.
When the Sunday Times inquired of his spokesperson Nathi Mncube why Mogoeng was not there, the question went unanswered. When reporters asked why Mogoeng chaired the recent JSC interviews via Zoom, the answer that came was a non-answer: that every commissioner was entitled to do so.
And when Zuma and Malema publicly raised allegations, with no factual basis, of judicial corruption, the chief justice maintained an obdurate silence — despite clamours for comment and in sharp contrast to when similar allegations were raised previously.