As Chief Justice Mogoeng Mogoeng leaves the pinnacle of the judiciary, messages of congratulations poured in, but his tenure was not without controversy.
Mogoeng has held office at the Constitutional Court for 12 years. He rose through the courts rapidly and after three years as part of the apex court, his name was flagged by then-President Jacob Zuma as the sole candidate for the Chief Justice position.
He became a Constitutional Court judge in 2009 and in 2011, Mogoeng was appointed to the apex court where he remains one of the longest-serving heads of the Constitutional Court.
The Constitutional Court’s Nkandla judgment may well be the longest-lasting piece of Mogoeng’s judicial legacy. In that judgment, Mogoeng held that the remedial action taken by then public protector Thuli Madonsela against Zuma was binding.
In essence, the ruling was about whether the Public Protector’s remedial actions had to be carried out.
Mogoeng wrote the judgment himself and delivered it personally, and in full, not just reading the media summary as was often the case before.
In 2015, Mogoeng called a meeting with the executive to discuss matters of concern to the judiciary.
These included public utterances attributed to, among others, some members of the national executive.
The meeting came at a time when the government ignored a high court order that then Sudanese President Omar al-Bashir be prevented from leaving SA after an African Union conference in Johannesburg. Zuma had invited al-Bashir to the conference despite knowing the legal implications as prescribed by the International Court.
However, Mogoeng’s legacy may be tainted by his many utterances around religion and, most recently, vaccines.
As the pandemic raged on in December last year, he made his famous comment about vaccines saying, “If there be any vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire in the name of Jesus.”
Earlier this year, his handling of the interviews for positions on the Constitutional Court was considered to be reckless and combative to the point that a court had to rule for the interviews to be redone.
Constitutional Law expert Pierre De Vos said Mogoeng’s legacy as Chief Justice will be clouded by some of his controversial religious views in public.
He said that when Mogoeng was appointed as Chief Justice there were many critics of the appointment who claimed that he was going to lack independence and did not have strong judicial skills but “largely the Chief Justice proved the critics wrong”.
De Vos said Mogoeng displayed independence and strong leadership.
However, Mogoeng, unfortunately, overstepped in some instances.
De Vos said that while Mogoeng’s religious views should be recognised, it did not give him the free will not to comply with the Judicial Code of Ethics.
“Making a statement about vaccines and safety of vaccines and secondly, making pro-Israel statements, now these statements were both influenced by the Chief Justice’s strong religious beliefs that must, of course, be recognised. But, in terms of the Code of Judicial Conduct, your religious views does not give you a free pass not to comply with the Code of Conduct and this is where the Chief Justice went straight over the line,” he said.
Political analyst Bheki Mngomezulu said Mogoeng had “done well” given some of the positions he found himself in over the years.
While he congratulated and commended Mogoeng on many accolades, he also stated that the Chief Justice began getting involved in issues that did not concern his office.
“He stepped out of line.
“When it comes to his legal credentials, he performed well but he made some unprecedented moves that caused dents in his career,” Mngomezulu said.
Looking at what may come, Mngomezulu said that although Deputy Chief Justice Raymond Zondo has been flagged as a top-runner for the position, he did not back that move.
“Given the way [Zondo] handled the Commission of Inquiry into State Capture, I don’t think I am comfortable with him taking over,” he said.
Mngomezulu put his weight behind a female Justice to take over the reins from Mogoeng.
President Cyril Ramaphosa expressed his appreciation to Mogoeng for his service to the nation during his tenure.
“Following a decade of outstanding service and leadership, Chief Justice Mogoeng leaves a rich legacy for our democratic culture, our judiciary, the legal profession and ordinary South Africans.
“Chief Justice Mogoeng presided over our judiciary during a decade which was challenging in many ways, but during which our judiciary held firm and enabled the renewal of our society,” Ramaphosa said.
kailene.pillay@inl.co.za
Political Bureau