How SA’s highest court began creaking under Mogoeng Mogoeng

For former chief justice Mogoeng Mogoeng, the years 2015 and 2016 marked the zenith of his leadership of the judiciary.

When the legal community gathered at the Constitutional Court to formally say farewell to deputy chief justice Dikgang Moseneke in May 2016, Moseneke movingly paid tribute to Mogoeng.

He acknowledged their relationship had been uneasy at first, but they had “found each other,” he said. “Each time there was a storm that swirled around this institution, you and I stood firm.”

By the end of the farewell, there was a joyous, celebratory feeling in the air. Our judges had transcended the potentially divisive appointment of Mogoeng by president Jacob Zuma. Our Constitutional Court was strong and in safe hands. All was well.

Yet there were already small signs to the contrary. As far back as 2015 Mogoeng had been criticised for having four acting justices on the Constitutional Court at one time. There is no law limiting the number of acting judges on the highest court, but critics said it was undesirable to have that many. They raised the concern that acting judges do not have security of tenure in the same way. Where they are acting on appeal courts, they are vulnerable to questions about whether their decisions are motivated by the hope of permanent appointment, or even political pressure.

The more acting judges there are on any one bench, the greater the concern.

But Mogoeng seemed unmoved by the criticism.

In 2015 Judicial Service Commission (JSC) interviews, he suggested that acting judges in appellate courts were judges like any others. They had taken oaths to uphold the constitution and the law. To say that they may be moved by a desire for permanent appointment was to accuse them of corruption.

Mogoeng had announced in 2014 that he was keeping a vacancy open on the Constitutional Court and expressed a hope that the next appointee would be a woman. The idea was to give more women judges acting experience on the court — at the time one of the least gender-balanced courts — and so create a bigger pool for potential appointments.

I think I have done more than enough; and as and when my responsibilities demand it, I will not sit in court …

—  Mogoeng Mogoeng

In July 2015 only women were interviewed for a single post on the highest court, and Nonkosi Mhlantla was appointed — the court’s third woman judge.

But the practice of keeping posts vacant and the overuse of acting justices continued. The presence of more than two acting justices became common. In the My Vote Counts case about transparency in political party funding — a highly politicised issue — four acting judges were among those who first heard the case in 2015, and three were involved when it came back in 2018.

Two further developments under Mogoeng’s tenure put him under the kind of pressure that no former chief justice had previously been under.

Before a 2012 amendment to the constitution, the Constitutional Court had jurisdiction to hear only constitutional matters, or “issues connected” with them. After the amendment, the highest court could hear any appeal where there is “an arguable point of law of general public importance”.

The result was a dramatic increase in the number of appeals that came to the court and consequently in the workload of judges — whose numbers remained the same.

Then the chief justice became the head of the entire judiciary and not just the Constitutional Court, with the administration of the judiciary transferred to the judiciary’s own control.

In an interview with the Financial Mail in 2014, the chief justice was brimming with energy and plans for his office and for making the judiciary more independent and justice more accessible and efficient.

But a side-effect of all the added responsibilities was that Mogoeng was often away from his core work — hearing and adjudicating cases.

In January 2018, Zuma established the state capture commission and Mogoeng chose his No 2, deputy chief justice Raymond Zondo, to chair it. The commission was initially only meant to have a life span of 180 days, but more than three years later its work is still not done. In contrast to their predecessors, Mogoeng and Zondo were often away from the Constitutional Court.

The Mail & Guardian reported in November 2018 that, of the 44 judgments the court handed down that year — until November 6 — Mogoeng had been absent for more than half. So far that financial year, he had made 12 trips overseas.

Mogoeng said in an interview that every time he was away from court, it was to do with administrative work for the judiciary or to fulfil international obligations.

“I have no regret, for the record, for having sat in [fewer] cases,” he said. “I think I have done more than enough; and as and when my responsibilities demand it, I will not sit in court … Otherwise the judiciary is going to fail and my other judicial responsibilities will fail because I am trying to silence critics who think I should be in court in every matter, even when there are other equally demanding responsibilities elsewhere.”

Certainly no-one was accusing the chief justice of laziness, but the absence of leadership at the Constitutional Court was a cause for concern.

The real impact of all these factors has only recently become sharply apparent. On Tuesday, the court will begin its fourth term of 2021 with just six permanent justices out of 11 — a first in its history. At the most recent JSC interviews, in October, the length of time judgments from the Constitutional Court are taking was raised with candidates.

Last year GroundUp analysed the turnaround times for the court’s judgments and reported a steady trend: from an average of three and a half months in 2016 to longer than six months in 2020. Mogoeng had championed and pushed through norms and standards for the delivery of judgments, but one of the biggest culprits in failing to adhere to them was his own court.

Judgment in the alleged hate speech case involving Cosatu official Bongani Masuku, arising from comments he made about Israel, has yet to be delivered more than two years after the case was heard.

This is partly because it was put on ice pending a constitutional challenge to the hate speech provision of the Equality Act in the Jon Qwelane case. Qwelane, who has since died, condemned same-sex marriages in a Sunday World column: “Call me names, but gay is not OK.” On July 31 the Constitutional Court found the column “abhorrent” and said it constituted hate speech.

It was expected that a ruling in the Masuku matter would soon follow. It did not.

Two weeks ago, on October 15, the Constitutional Court asked the parties in the case if they had any objection to Mogoeng remaining part of the quorum “in light of the statements made by chief justice Mogoeng in respect of Israel and Palestine which have received public scrutiny”.

This was a reference to a webinar hosted by the Jerulalem Post last year in which the chief justice, when asked about the sometimes “tense diplomatic relations” between SA and Israel, suggested South Africa needed to reflect on its foreign policy approach to Israel. His comments led to a complaint from a human rights group and they were found by the Judicial Conduct Committee to amount to misconduct. Mogoeng is appealing that decision.

But it is unclear why the Constitutional Court is only now, more than a year after the webinar, considering Mogoeng’s recusal.

Then, this week, after asking if there were objections, Masuku and Cosatu were directed to either apply for Mogoeng’s recusal or withdraw their complaint. In addition — in the interests of “full transparency” — the court revealed that the South African Zionist Federation had written to Mogoeng to offer its support in dealing with the complaint against him. The chief justice did not respond or meet with the Zionist federation, said the court.

There have also been repeats of what happened in the 2017 judgment about rules for impeaching a president — errors in judgments that must later be corrected, spelling mistakes and typos. There have been delays in handing down judgments after they have been announced, and cases of documents getting lost — things that should not happen in the highest court.

In 2018, when Mogoeng’s absences from court and continued overuse of acting judges were being talked about, his response was defensive. He told the Mail & Guardian he had heard from a colleague that there were people out to discredit him — academics, judges and politicians were involved. Two academics had “been assigned or have assumed the responsibility to write articles critical” of him, he said.

During JSC interviews in April 2019, the chief justice made repeated references to a campaign to attack or undermine him and said he was sometimes deliberately misunderstood.

He spoke of a “narrative” in which certain judges were always praised as “highly respected, progressive” while others were “conservative”. He said it was “almost as if to send a message to other judges: these should be your role models. Do what they do.”

This was “an avenue for capture”, he said, because the message was: “You’ve got to do what so-and-so and so-and-so are always doing. And in case they never decide against certain interests and certain groupings, then that’s the way to go.”

When candidates for appointment to the Constitutional Court were asked about academic criticism of the highest court’s treatment of commercial law, he said he read these academic articles sparingly — “because you don’t know if there is an agenda”.

He referred in fiery terms specifically to the law of contract and spoke of infusing “considerations of real justice into it”, saying there had been “a lot of protectionism” in this area of the law.

There had for some years been a debate about the role of equity and fairness in contract law. That same year in the Beadica case, which dealt squarely with the question of when courts should refuse to enforce contractual terms, the highest court had the opportunity to clarify this vexed question. The irony was that, once again, the chief justice was not there.

• Part 4 Next week:  Chief Justice Mogoeng retreats