In May 2020, the final episode of Zooming with the Zumas, a YouTube dialogue between former president Jacob Zuma and his son Duduzane, was aired. In it, Zuma made a startling claim. He said — with not a shred of evidence — that there were judges who had “unfortunately pronounced that ‘Zuma will never win a case in my court’ ”.
He was, he said, being treated by the courts of a democratic SA the way he had been treated by apartheid’s courts.
The former president’s epic delaying strategy to avoid prosecution was running out of runway. He was due back in criminal court on arms deal corruption charges the following month.
And, despite a complicated dance with the state capture commission involving letters and public statements, it was increasingly clear that Zuma would not voluntarily give evidence before the commission — and that its chair, deputy chief justice Raymond Zondo, was not going to let the matter go. With diminishing options, Zuma and his supporters, particularly the social media sock puppets, ratcheted up the rhetoric against the judiciary.
In the face of increasingly vicious public attacks against some of the judges of SA's courts, chief justice Mogoeng Mogoeng maintained an obdurate silence
In the face of increasingly vicious public attacks against some of the judges of SA's courts, chief justice Mogoeng Mogoeng maintained an obdurate silence. He declined media requests for comment, and would not even explain why he was not commenting.
This was in stark contrast to the media conference he had given in September 2019, when he came out strongly in defence of his judges, calling on those who hid behind anonymous social media accounts to come forward with their allegations of judicial corruption, and promising to investigate them. No-one came forward with any serious allegations. The attacks stopped for a while.
Mogoeng’s silence seemed in keeping with a broader trend: from 2020, at times when the chief justice would have been expected to step up to lead, he seemed to retreat.
In January 2020, the Western Cape High Court erupted into public controversy as a misconduct complaint and counter-complaint between the division’s embattled judge president, John Hlophe, and his deputy, Patricia Goliath, were made to the Judicial Conduct Committee (JCC). Goliath accused Hlophe of a host of wrongdoings — most significantly that he had assaulted a junior judge, Mushtak Parker, in his chambers, and referring to a “domestic incident” at Hlophe’s Pinelands home, after which she said his wife, judge Gayaat Salie-Hlophe, had called her in distress and had required stitches in her hand. Hlophe in turn accused Goliath of “meddling” and being racist.
The complaints pulled in Salie-Hlophe and Parker and at least 10 other judges who — after Parker backed Hlophe’s denial of the assault — complained that this was contrary to what he had told them.
It was an ugly dispute. But when the Cape Bar Council asked Mogoeng to informally intervene “as the leader of the judiciary” and encourage Goliath and Hlophe to take special leave (suspension was not in law an option at that point), Mogoeng refused, saying “the chief justice does not have the power to have a judge go on leave of any kind or to suspend a judge”. This was true, but the exercise of a legal power was not what the Cape Bar was asking for.
The pandemic was an unprecedented challenge for the running of SA’s courts, with every court sitting a potential superspreader. The approach of the office of the chief justice was to give high-level directives and leave it to the individual courts to fill in the gaps. The jury is out on whether this was the best approach, but it was unexpected for Mogoeng, who always seemed to put his best foot forward in a crisis. Some courts rose to the occasion, moving quickly to remote hearings where they could. Others struggled.
One thing Mogoeng was firm on was that the courts must be available for people to challenge the lockdown laws. This proved to be an important means of holding accountable a state whose power had been greatly increased by the declaration of a state of disaster. Most notable was the case of Collins Khosa, whose death at the hands of the state led to a code of conduct for the enforcement of lockdown laws by security forces.
But if the chief justice was giving leadership on the courts’ operational, day-to-day challenges, it was quietly and in the background.
Instead, Mogoeng himself became embroiled in controversy as the subject of two complaints of misconduct. In June 2020, he participated in a webinar hosted by the Jerusalem Post with SA’s chief rabbi, Warren Goldstein. When he was asked about the sometimes “tense diplomatic relations” between SA and Israel, he suggested SA needed to reflect on its foreign policy approach to Israel. He quoted the Bible and said “as a Christian” he had to “love and pray for Israel because I know hatred for Israel by me and for my nation will — can only — attract unprecedented curses upon our nation”.
When the face-off between Zondo and Zuma moved to the Constitutional Court, Mogoeng was, once again, not there
In March 2021 the JCC ruled that his remarks amounted to misconduct — though not impeachable misconduct — and directed him to apologise. He did not, instead appealing the ruling. The appeal is still to be determined.
The other complaint, which had been laid in December 2020, was about a prayer he gave at Tembisa Hospital. In his prayer, he said that “if there be any [Covid-19] vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA ... may it be destroyed by fire”. The complaint on this is also still being determined by the snail-paced judicial disciplinary process.
As the state capture commission trundled towards its court-ordered deadline, things came to a head with Zuma, who, when he failed to secure Zondo’s recusal, walked out of the commission in breach of a lawful summons.
But when the face-off between Zondo and Zuma moved to the Constitutional Court, Mogoeng was, once again, not there.
The application that Zuma be sentenced to prison for contempt of court for breaching an order by the Constitutional Court to abide by the commission’s summons was unprecedented. Zuma chose not to oppose it and give his side. It was a heavy burden on the highest court, which also had to make this decision without the benefit of any lower court having considered it. Then, when Zuma finally entered the fray, asking for the order to be rescinded, the country was in the grip of a wave of social unrest.
It was a time when a leader was needed. When the Sunday Times asked Mogoeng’s spokesperson why the chief justice did not sit, he gave no answer. That it was Mogoeng who had chosen Zondo to chair the commission would have been an unconvincing reason to sit out a case of such magnitude when the Constitutional Court was already under immense work pressure.
In the contempt judgment, the majority ordered that Zuma be imprisoned for 15 months. But the judges were apparently bitterly and rancorously divided — a division that persisted into the rescission decision.
The divisions had echoes of the famous split in the 2017 judgment over the rules for impeaching a president — in which Mogoeng had called the majority decision by justice Chris Jafta a “textbook case of judicial overreach”. Here, justice Leona Theron labelled the majority decision “unconstitutional”.
Ironically, Jafta here was in the minority with Theron. Yet his response to Mogoeng back in 2017 could apply with equal force to the judgment in which he now concurred: “Conceptually it is difficult to appreciate how the interpretation and application of a provision in the constitution by a court may amount to judicial overreach. The constitution itself mandates courts to interpret and enforce its provisions. The discharge of this judicial function cannot amount to overreach whether one agrees or disagrees with a judgment that construes and applies the constitution in a particular way.”
Perhaps Mogoeng had lowered the bar of respectful dissenting judgments for everyone.
Over the years, Mogoeng’s judgments were increasingly raising eyebrows. His dissents in two cases involving the public protector are instructive.
In July 2019 a Constitutional Court majority awarded personal and punitive costs against the public protector, Busisiwe Mkhwebane, because she had been dishonest in how she had conducted litigation. Mogoeng agreed that Mkhwebane had done wrong, but he said her conduct was not sufficiently bad to warrant an order that could bankrupt her.
He said: “It ought therefore to take extraordinary circumstances for such costs to be justifiably awarded. That decision ... requires deeper reflection, tightly guided by an unmistakably strong sense of justice. After all, courts exist not to crush or destroy, but to teach or guide, caution or deter, build and punish constructively… The law ought not to be applied mechanically, regardless of whether the outcome yields justice or inequity.”
This characterisation of the role of courts was unusual. Courts exist to settle disputes by applying the law to the facts. All this talk of teaching, guiding, cautioning and building seemed more appropriate for a church.
In the judgment, in July this year, on the public protector’s CR17 report — the 2017 campaign that saw President Cyril Ramaphosa elected ANC president at the party's Nasrec conference — Mogoeng said Mkhwebane’s reliance on the wrong legislation to make a finding of possible money-laundering did not “really matter”. Despite Ramaphosa’s lawyers arguing that her report was reviewable because she made a material mistake of law, Mogoeng said it was in any event up to the police and National Prosecuting Authority to investigate and prosecute — “hers was to alert them and ask them to investigate”.
Though the law is supposed, like the Rev Martin Luther King jnr's moral universe, to “arc towards justice”, legal certainty is equally important for the rule of law. Supreme Court of Appeal judge Malcom Wallis said in a 2016 public lecture that the aim of the law is not litigation. It is actually to avoid disputes — by having clear rules of engagement. “A rule of law based solely on the exercise of judicial discretion and a sense of reasonableness and fairness may be no rule of law at all,” he said.
But Mogoeng was passionately and unashamedly concerned with the alignment of law with justice, leading to rumblings about inconsistency. His pull towards justice made him popular, a populist even — even though he had in 2018 made a passionate speech about how judges should not be populists.
In this way he had perhaps been the right counterweight for the populist president SA saw in Zuma — matching him pound for pound in charisma, charm and single-minded grit.
It is not clear why Mogoeng, loved by the public, retreated as he did in the past few years — when leadership was really needed, particularly at the Constitutional Court. Perhaps his brand of judicial leadership was not such a good fit in the Ramaphosa era. When he left, there was no farewell gathering at the Constitutional Court as has become traditional; no joyful celebration as there was the day Dikgang Moseneke retired.
He left with two misconduct complaints unresolved — and neither is frivolous — and the highest court almost half vacant. Yet, as Zondo said in a statement on his departure, Mogoeng saw the South African judiciary through a most difficult period. The judiciary remains for the most part independent and SA remains a nation of laws.
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