Mogoeng Mogoeng, South Africa’s erstwhile chief justice, retired from the Constitutional Court on October 11. His appointment by former president Jacob Zuma in 2011 was highly controversial. It followed an unsuccessful attempt by Zuma to extend the term of office of Sandile Ngcobo, who was chief justice then. At the time, Mogoeng had only been a judge of South Africa’s highest court for two years. Before that he had been a puisne judge; the head of the High Court in Mahikeng, a small town in the northern part of the country. He had no constitutional law experience, had not appeared as an advocate before the appellate courts, and had not published any academic papers (when asked about the lack of published papers, he responded that he had “no passion” for writing, a strange remark by a judge, whose job is to write). In sum, he was an unlikely candidate for appointment. Naturally, Zuma appointed him.
When Zuma nominated Mogoeng as chief justice, ahead of the more celebrated and experienced deputy chief justice, Dikgang Moseneke, the legal establishment, non-governmental organizations, trade unions and political parties vocally opposed his appointment to varying degrees. Of course, with the nomination came greater scrutiny. As legal professional bodies pored over his record and read his judgments, a grim picture began to emerge. In fact, many wondered how he had been appointed to the Constitutional Court in the first place.
Objecting to his nomination as chief justice, South Africa’s largest trade union federation, the Congress of South African Trade Unions (COSATU), highlighted several judgments which, in its view, rendered Mogoeng unsuitable for the post. COSATU took issue with his approach to adjudication in gender-based violence cases. In one case concerning rape, Mogoeng had reduced a 10-year prison term to five years, reasoning that because the victim had been in a long-term relationship with the rapist (“virtually husband and wife” in his own words), the situation had to be distinguished from a “rape of one stranger by another.” He also said that because the victim’s relationship had not been abusive “the assault … was not serious.” COSATU remarked that Mogoeng’s attitude displayed “general insensitivity to gender-based violence,” that he had trivialized rape “and the understanding of what constitutes consent.” In another case, Mogoeng reduced a two-year sentence for assault to a fine, where the accused tied a woman to the bumper of his car and dragged her for about 50 meters. Mogoeng found, among other things, that the woman had provoked the accused and that he had pleaded guilty to the charge, which demonstrated his remorse. COSATU referred to at least three other cases where Mogoeng treated the perpetrators of (mostly sexual) violence against women leniently, in each case expressing worrying views about gender and sexual ethics.
His nomination to South Africa’s highest judicial office therefore baffled everyone. Even after he had been appointed to the Constitutional Court, Mogoeng infamously dissented from a portion of the court’s judgment without providing reasons. The case concerned a defamation claim by the deputy headmaster of a well-known high school against three boys who photoshopped a picture depicting him and the headmaster “sitting next to each other in sexually suggestive and intimate circumstances.” The court had found that it was not an actionable injury in law “to call or depict someone as gay”—that it was not defamatory to do so regardless of whether or not the person disliked or disapproved of such a depiction. Mogoeng disagreed without providing reasons. Even when probed at his public nomination interview for his reasons, he failed to answer, saying only that in hindsight he should have explained his dissent. For Section 27, a Johannesburg-based NGO, his dissent coupled with the fact that he was a lay preacher at a church known for its anti-gay stance, Mogoeng posed a danger to the rights of LGBTQI people. He rubbished claims that he was homophobic, saying that his church’s position on gay marriage was “not something peculiar to it” and that it was “based purely on the Biblical injunction that a man should marry a woman and that there shall be a husband and a wife.”
As expected, after two days of a gruelling public interview, Mogoeng was recommended as the country’s chief justice with his critics still unconvinced that he was the man to lead the largely progressive court. In the course of his 10-year term at the helm of the judiciary, Mogoeng is seen by many as having proven his critics wrong. Appointed at the start of Jacob Zuma’s turbulent 9-year presidency, Mogoeng steered the courts through a difficult period in South Africa’s history. One moment in particular stands out.
In 2015, former Sudanese president Omar Al Bashir attended an African Union summit in Johannesburg. Before his arrival the International Criminal Court (ICC) had served South Africa with a request to arrest and surrender Al Bashir to the court, were he to enter the country, so that he may stand trial for his international crimes. The South African government took no steps to arrest and surrender Al Bashir once he had arrived in the country and on the day before he was due to depart, the Southern African Litigation Centre made an urgent court application to have the government’s failure to arrest Al Bashir declared unconstitutional. The government asked for a postponement to prepare its court papers and the court granted the postponement to the next day on the condition that Al Bashir would not be allowed to leave the country. On the day the case was heard, the government’s lawyers assured the court that Al Bashir was still in the country. After a full day of argument, the court issued an order declaring the government’s conduct unconstitutional and directing that Al Bashir be arrested and surrendered to the ICC. The government’s lawyers, almost immediately, stood before the court and reported that Al Bashir had left the country, some hours earlier, rendering the order obsolete.
What followed in the weeks after the incident was nothing short of an onslaught. Politicians accused the court of playing politics and of overreaching into areas it was not competent in. These attacks came from senior leaders of the ruling African National Congress. In response, Mogoeng took the bull by its horns and marshaled the country’s senior judges into a meeting after which they appeared at a press briefing to denounce the attacks on judges and to request a meeting with Zuma to discuss the damage wrought by the public attacks. It was a tense moment in the life of the South African judiciary, perhaps surpassed only by Zuma’s own arrest and the violent riots it precipitated in July this year. Mogoeng was praised, rightly, for his courageous stance and willingness to stick it. Perhaps his critics were wrong. Or were they?
The Al Bashir moment was soon followed by Mogoeng’s historic Nkandla judgment, written for a unanimous court, in which he found Zuma to have broken his oath of office and ordering him to pay back millions to the state for personal benefits accrued to him, following a report issued by the public protector (an ombudsman of sorts) to the same effect. That episode also garnered praise for Mogoeng. But his subsequent conduct suggests that he may have indeed been overcome by his colleagues and that the outcome in that case was not devised by him. Written almost as a sermon, the Nkandla judgment drew comparisons between David and Goliath on the one hand and the public protector and Zuma on the other. It described corruption and maladministration in almost identical terms as The Serpent whose “ugly head of impunity” ought to be chopped off its “stiffened neck” by the “mighty sword” wielded by the public protector, our biblical David. In many ways, Mogoeng saw corruption as a repudiation of his Christian ethics, a kind of moral stain that had to be removed by all means.
His religious fervor for accountability did not extend beyond issues of corruption. Indeed, in a subsequent case dealing with whether parliament had breached the constitution by failing to make rules for the impeachment of the president, Mogoeng penned an angry dissent accusing his colleagues of “textbook judicial overreach.” Mogoeng caused a national kerfuffle when as Justice Chris Jafta was delivering the judgment, he demanded (unusually) that Jafta read his dissent in full, on national television. He continued to adopt a contrarian stance to his colleagues as he reached the twilight of his tenure, often willing to overlook the provisions of the law to reach a desired outcome. To be frank, as a judge, Mogoeng was not much to write home about.
People often describe Mogoeng as a conservative. Not many interpret that statement in the same way that Americans perhaps may. When South Africans refer to a judge or a lawyer as “conservative” it is often in reference to the lawyer’s approach to legal method; their preferred interpretive theory for example. Judges for whom legislative text is primary in legal interpretation are often branded in this way, as opposed to judges who prefer to look beyond the text to discern, and in some cases divine, the meaning of laws. When used in reference to Mogoeng, the classical understanding of what it means to be a conservative comes to mind. For he was by no means a conservative judge. In many cases, Mogoeng often appealed to the values underlying laws even where those values, in the process of interpretation, yielded results directly in conflict with the explicit wording of laws.
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