In June 2015 Sudan's president Omar al-Bashir, wanted by the International Criminal Court for crimes against humanity, came to SA to attend an AU summit.
The South African government said it thought he had immunity from arrest as a head of state, but he did not. On a Sunday, the Southern African Litigation Centre went urgently to court to compel his arrest. To arrest him would have been a major diplomatic incident for SA.
In the high court that Sunday, the government asked for a one-day postponement to get affidavits together. This was granted, but in order to prevent Al-Bashir’s flight in the meantime, the court ordered that he was not allowed to leave; and “to effect service of this order on the official in charge of each and every point of entry into, and exit from, the Republic”.
The next day, the case was called once again before a specially constituted full bench of three judges, presided over by Gauteng judge president Dunstan Mlambo. When court started at 10am, once again the affidavits were not ready and the case stood down until 1pm.
At 1pm the government’s counsel, William Mokhari SC, was asked to give an assurance that Al-Bashir was still in the country. Mokhari said that, according to his instructions, he was; and he repeated this during the course of the argument.
At about 3pm the court ordered that Al-Bashir should be arrested. But immediately after the order, Mokhari told the court that Al-Bashir had left earlier that day.
The government later said in an affidavit that he appeared to have left on a flight from the Waterkloof air force base at about 11.30 that morning.
Such an apparently flagrant breach of a court order — brazenly perpetrated even as the court was sitting — was unheard of. It was “disgraceful conduct”, the Supreme Court of Appeal (SCA) later said.
A stern judgment from Mlambo followed. This in turn elicited a storm of criticism from politicians. The ANC secretary-general at the time, Gwede Mantashe, said sections of the judiciary were driven to “create chaos for governance” and named the high courts in Pretoria and Cape Town. A statement put out by a tripartite alliance summit decried judgments “of certain regions and judges” that were “consistently against the state”.
On July 8, 27 of SA's most senior judges — led by chief justice Mogoeng Mogoeng — filed grave-faced into a conference venue in a Kempton Park hotel for a press conference. Though not in court, they wore their judicial robes.
Mogoeng said the judiciary had sought a meeting with President Jacob Zuma to discuss “the dangers of the repeated and unfounded criticism” of the judiciary. He was flanked by every judge president and their deputies, bar two.
Mogoeng said the judiciary was assuring the nation, and the world, that SA’s judges remained steadfast in their obligation to uphold and protect the constitution and their oaths of office. “To judges, this obligation and the oath are sacred,” he said.
The meeting between the judiciary and the executive duly took place and, according to former deputy chief justice Dikgang Moseneke in his memoir All Rise, “the executive rolled out afresh the usual and, I must add, tired accusations of judicial bias against the government and of judicial overreach”.
Moseneke writes: “We remained unbending. We stuck to the mantra of judicial office.”
The executive rolled out the usual accusations of judicial bias ... We remained unbending
— Former deputy chief justice Dikgang Moseneke
The standoff over the flight of Al-Bashir brought SA close to a constitutional crisis. It was avoided only by a disavowal by the state of any knowledge of how he left the country.
The judicial show of force led by Mogoeng was a memorable act of leadership. Another was his Nkandla judgment.
Public protector Thuli Madonsela’s “Secure in Comfort” report came out in 2014. But it was only to come before the Constitutional Court in February 2016, by which time the government’s and parliament’s efforts to protect Zuma from political and public pressure to “pay back the money” had become almost farcical.
The National Assembly had set up two ad hoc committees to look at this report and others, including one compiled by the police minister. After endorsing the minister’s report exonerating Zuma from liability and a similar report by its previous ad hoc committee, parliament cleared Zuma of all liability.
The EFF, in an audacious move, approached the highest court directly — permissible only in exceptional circumstances or if the Constitutional Court has exclusive jurisdiction, both of which were hotly disputed in this case. The hardest part of the EFF's case would be getting its foot in the door. But on the day of the hearing, Zuma’s counsel, Jeremy Gauntlett SC, conceded the main aspects of the case. His concern was that the judgment should not be written in a way that could set the president up for impeachment. “This is a delicate time, in a dangerous year,” said Gauntlett, a likely reference to local government elections that year.
The legal question at the heart of the Nkandla case — whether the remedial action of the public protector was binding in terms of the constitution — was not an easy one. A lot of the legal heavy lifting on the effect of the public protector’s remedial action had been done in the extensive argument that had already gone through the high court and the SCA in a dispute about another of Madonsela’s reports, about Hlaudi Motsoeneng and the SABC.
In law, the Nkandla judgment confirms the meticulously reasoned judgment of SCA judge Mahomed Navsa in the SABC case. But the Nkandla judgment did so much more than that. In ringing terms — complete with biblical references — it affirmed the importance of the office of the public protector in the constitutional scheme.
No less powerful were its descriptions of the roles and duties of the president and parliament under the constitution. The president, it said, is the “national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project”.
The National Assembly was “the embodiment of the centuries-old dreams and legitimate aspirations of all our people. It is the voice of all South Africans, especially the poor, the voiceless and the least˗remembered.”
Amen! The Nkandla judgment not only vindicated the rule of law, it was a sermon to the nation, as justice Edwin Cameron once described it.
Niren Tolsi in the Mail & Guardian said: “The judgment vindicated a citizenry outraged by Zuma’s perceived impunity — in action and word — on Nkandla, the Marikana massacre, the sacking of the finance minister, Nhlanhla Nene, his unseemly relationship with the Gupta family and the appointment of apparent cronies to strategic positions in the parastatals, the prosecuting authority and the state’s security apparatus.”
The tone and style of the Nkandla judgment would later find its way into other judgments of the Constitutional Court, in circumstances perhaps less appropriate. When, in the recent Zuma contempt judgment, justice Sisi Khampepe described the former president’s attacks on the highest court as “sacrilegious”, it is hard not see a thread running directly back to the Nkandla judgment.
The tone and style of the Nkandla judgment would later find its way into other judgments of the Constitutional Court, in circumstances perhaps less appropriate
But at the time the judgment was what the country needed. The shocking allegations that gave rise to the “State of Capture” report — that the Guptas were in the business of handing out cabinet positions — had come tumbling out in March 2016. Madonsela’s report came out in October, leading to more litigation by those implicated. In October 2017 a judgment of the SCA effectively meant corruption charges against Zuma were reinstated.
By 2017, lawfare was intensifying and litigants were testing the boundaries of the separation of powers. In March that year, Zuma’s late-night cabinet reshuffle — something normally considered the heartland of executive discretion — was challenged in court.
The EFF and the United Democratic Movement even went to the Constitutional Court to solve disputes about the processes of parliament — an area in which the courts, because of the separation of powers, trod with trepidation. In June the Constitutional Court — in a decision penned by Mogoeng — found in favour of the UDM in the case, which concerned a secret ballot for a motion of no confidence in the president.
But a few months later Mogoeng broke ranks with his colleagues on the apex court, labelling a judgment by his colleague Chris Jafta, compelling parliament to draft rules for the impeachment of the president, a “textbook case of judicial overreach”.
A dissenting judgment is not in itself remarkable. But this one was, in number of respects. Jafta said the label was unprecedented, “misplaced and unfortunate”, and justice Johan Froneman penned an entire separate judgment to address Mogoeng’s characterisation. There was nothing wrong with robust debate he said, “but to attach a label to the opposing view does nothing to further the debate”.
As Jafta delivered the judgments in court — two days after Christmas — Mogoeng interrupted him and handed him a piece of paper, insisting that Jafta read out loud a different summary of his dissenting judgment — to Jafta’s visible surprise.
There was another disconcerting feature: Mogoeng’s judgment criticised Jafta’s judgment for something it did not say. Jafta’s judgment said the impeachment rules must be made “without delay”, but Mogoeng took issue with the judgment for setting a 120-day time limit.
The version of the judgment in the law reports makes no reference to time limits, suggesting it was later corrected. There were also typos and spelling mistakes — unusual at that stage in judgments from the highest court.
The many pressures that were building, and the hairline cracks that were showing across the chief justice's varied areas of responsibility, were thrust into the limelight.
The judgment was a harbinger.
• Next week: The retreat of Mogoeng
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