Long may Mogoeng’s legacy endure
This week marked the end of Chief Justice Mogoeng Mogoeng’s tenure at the helm of the country’s judicial system, an era which will forever be remembered for the Constitutional Court’s vigorous defence of South Africa’s constitutional democracy.
Suspected in certain sections of our society as a puppet of ex-president Jacob Zuma when he ascended to the office in 2011, Mogoeng’s pioneering leadership of the Concourt would live to fulfil the wishes of the forebears of this country’s democratic dispensation; a resounding affirmation of our constitutional order.
It is perhaps fitting to recap what South Africa’s founding democratic president Nelson Mandela said on the occasion of the inauguration of the Constitutional Court on February 14 1995. Mandela opined how it was the task of the ConCourt to ensure the values of freedom and equality, which underlined our interim constitution, were protected.
“People come and people go. Customs, fashions, and preferences change. Yet the web of fundamental rights and justice which a nation proclaims, must not be broken. We expect you to stand on guard not only against direct assault on the principles of the constitution, but against insidious corrosion. Attacks on the basic rights of the people are invariably couched in innocent language.”
Mandela was right. A few years after his passing, with one of his much-loved ANC leaders as president of the country, an assault on our constitution reared its ugly head when Zuma sought to defy the public protector – one of the country’s key constitutional structures.
Zuma’s defiance of the public protector’s remedial actions was couched in innocent language as Mandela had forewarned. Asked to repay the taxpayers’ money he had spent on his Nkandla compound, Zuma argued the public protector’s remedial actions were not binding.
It was the Constitutional Court under Mogoeng’s uncompromising leadership that stopped Zuma dead in his tracks.
Of most significance, the court ruled that the remedial actions of the public protector were binding, a judgment that reaffirmed the importance of Chapter Nine institutions set up to support the country’s democracy.
It was a landmark judgment that would reaffirm the country’s constitution as the supreme law of the land.
Since then, the Concourt has been firm against those who dare undermine the constitution. The main culprit has been Zuma himself. Even in retirement, he was on the order of the Constitutional Court arrested for contempt of court before being sentenced to 15 months in jail for defying the State Capture Commission. It was the first time a former head of state was sent to jail in SA.
Mogoeng’s time at the Constitutional Court was, of course, not without controversy as evidenced by his conflation – at times – of religious beliefs, politics and jurisprudence. He was sharply criticised for supporting apartheid Israel and, of late, for questioning Covid-19 vaccines.
However, all that should not take away that Mogoeng leaves a fearless legacy as an individual who “stood out as the illustrious chief justice, where under his leadership, the Concourt made crucial judgments”, acting without fear or favour.