By Paul Hoffman Follow 13 Oct 2021
Our unlikely Chief Justice Mogoeng Mogoeng moved from the blinding light of his reasonless dissent in Dr Louis Dey’s case to his encounters with the dark knight of Nkandla.
When, in 2011, as an ordinary justice of the Constitutional Court, Mogoeng Mogoeng dissented in the defamation matter in which naughty schoolboys were sued by their teacher, Dr Louis Dey, without giving any reasons for his dissent to an innocuous portion of the judgment of justices Edwin Cameron and Johan Froneman, South Africa should have been warned that promoting him came with risks.
There is no room for a biblical soapbox in the office of a chief justice. These risks are not attendant upon the appointment of one of the more likely candidates for the post: like Dikgang Moseneke, then deputy chief justice, and arguably the best chief justice the new South Africa has never had.
The decision in appointing our chief justices lies within the gift of the President. The president at the time was Jacob Zuma, who had earlier sought solace and advice from Mogoeng and who quite possibly felt he owed a debt of gratitude to him after Zuma’s acquittal on a charge of rape. Stephen Grootes has documented their known social encounter.
As has been pointed out in the past, the decisions made in relation to appointing judges in South Africa are informed more by political considerations and less by the fitness for office of those appointed. Horror stories about the escapades of the likes of judges Nkola Motata, Willie Seriti and John Hlophe (the latter ongoing) abound.
The rate of success on appeal against the decisions of many courts a quo, in which judges who are less than “fit and proper” persons sit, bears mute testimony to the poor track record of those appointed for political reasons and on consideration of “race and gender composition” of the Bench rather than due to being “appropriately qualified” and “a fit and proper person” to grace the judiciary.
One of the shortlisted candidates for elevation to the highest court has been overturned on appeal by the SCA on no fewer than 45 occasions. Elevating consideration of the need for the judiciary to reflect broadly the racial and gender composition of South Africa to the exclusion of the other requirements set out in C174 is wrong and has been criticised widely. Izak Smuts SC resigned from the Judicial Service Commission because he was not prepared to participate in its political machinations that led to the undermining of the quality of justice and the rule of law in South Africa. He explained his resignation at the time.
As the ANC-led alliance is determined to “secure hegemonic control of all the levers of power in society” (including the judiciary, which is a considerable seat of power) it is inevitable that satisfying that ANC policy goal has taken primacy in decision-making and even cadre deployment on the Bench. The stout defence of this latter unconstitutional malpractice given to the Zondo Commission by the President holds no water and will surely be criticised in its report.
Mogoeng has no track record within the ANC. He was an apartheid-era prosecutor in Mafikeng swiftly elevated to the local bench where he quickly rose to the rank of judge president.
When he presented himself as a candidate for the Constitutional Court to the meeting of the JSC held in Kliptown, he was asked if it was true that he is a lay preacher. He confirmed this and appeared to be pleased to hear the dry response of one commissioner that “it shows”.
The religious beliefs of Mogoeng probably account for his unique unreasoned dissent in Dey, in which the defendants had superimposed the face of their teacher, Dr Dey, on a photograph of one of two naked and apparently masturbating men. Dey sued and succeeded.
It is difficult to be a religiously conservative person in a secular dispensation that guarantees a full range of liberal human rights to all and regards the Constitution and the rule of law as supreme.
Much later in his career, Mogoeng participated in a webinar in which his biblically based support of Israel got him into hot water with supporters of a free Palestine. He was hauled before a disciplinary structure whose adverse findings he is currently disputing. Not exactly a feather in the cap of any chief justice.
Mogoeng has been widely praised for his judgment in the Nkandla matter, in which the court was called upon to interpret the meaning of the phrase: “The Public Protector has the power… to take appropriate remedial action.” Zuma initially contended that these words do not imply that the remedial action is binding, but by the time the case was heard in Braamfontein he had abandoned this contention on the advice of his legal team led by JJ Gauntlett SC. In effect, the judgment was one by default because no counterargument was put up.
The court certainly got the meaning of the phrase quoted above right. It excoriated Zuma as a constitutional delinquent but, sadly, it got the amount he owes the people of South Africa for the unauthorised non-security improvements to the homestead at Nkandla horribly wrong, understating them to the tune of hundreds of millions of rands. The architect who was employed by Zuma has since been sued for payment of R155-million, an indication of just how far off the mark the court’s finding on quantum was when it came in under R8-million. It remains uncorrected to this day, despite the finding that the public protector’s remedial action in the matter is binding!
This error pales into insignificance when compared with the hash made of the third in the trilogy of Glenister cases, in which Mogoeng wrote the judgment of the majority.
In the second Glenister case, Mogoeng was in the minority of four who disagreed with the majority that there was a constitutional flaw in the original incarnation of the Hawks, created as a substitute for the investigative capacity of the Scorpions in relation to anti-corruption work the state is obliged to do, both as a human rights obligation and in terms of its international treaty duties.
The majority in Glenister II held that the Hawks were insufficiently independent to be an effective and efficient anti-corruption entity. The famous STIRS criteria were laid down (and remain) as the basis for establishing constitutionally compliant anti-corruption machinery of state. The seminal joint judgment of judges Moseneke and Cameron called upon Parliament to make the reasonable decision of a reasonable decision-maker in the circumstances in passing the remedial legislation required to create a substitute for the Hawks as they had been found wanting from a constitutional perspective. Reflecting on the joint judgment in his judicial memoir, All Rise, Moseneke observes:
“Suffice it to note that many subsequent events in the private and public spaces of our country suggested that there was a steady and increasing trend of financial, administrative and other forms of corruption, a matter which is thoroughly borne out by the evidence brought before the Commission of Inquiry into State Capture…”
The remedial legislation passed in the nick of time about 18 months later was impugned successfully in Glenister III, but Glenister’s argument that “in the circumstances” it was inappropriate to locate the anti-corruption body within the corrupt SAPS under control of the questionable Cabinet led by a crooked president, got up the nose of the chief justice. He described the evidence of experts adduced in support of the stance adopted by Glenister as “odious political posturing” and simply refused to have regard to one word of it, despite the fact that it stood uncontradicted by any of respondents in the case, including Zuma himself.
So confused did the court become, under the leadership of Mogoeng, that Moseneke and Cameron could not agree about what they meant in their joint judgment. They found themselves in opposing camps, with Moseneke inexplicably siding with Mogoeng in the majority judgment while Cameron stuck to his guns and wrote one of the minority judgments. Moseneke does not allude to or explain his changed stance in his book but he does observe, in another context, that:
“As certain as the sun will rise, so will the sun set for a wicked social order. Bad political regimes never flourish for long. The seeds of their ruin lie in the belly of their misrule. It is only a matter of time before the people rise and flush out an unjust and inept government.”
The majority in Glenister III took the unusual step of tweaking the legislation to attempt to correct some of its many faults, but it allowed the Hawks to remain in the SAPS fold. The rest is history. Not one “big fish” has been landed by the Hawks unit in its entire existence to date. Currently, in an atmosphere of inter-party consensus on the need to reform the criminal justice administration, no one is suggesting that the Hawks are any part of the solution to the problems created for South Africa by the incidence of rampant corruption with impunity both during and since the Zuma presidency.
The failure of the majority to have regard to the uncontroverted evidence pointing to the circumstances not conducive to keeping the Hawks within the SAPS, has cost the country trillions in loot, it has brought the state to the brink of failure, and it represents the lasting legacy of Mogoeng’s leadership of the court.
Had the Nkandla matter, in which he lost patience with the errant behaviour of Zuma, preceded the hearing of the Glenister matter, one wonders whether the “odious political posturing” of which Mogoeng complained in the majority judgment would instead have been accepted as what it in fact was, namely, a fair summary of the depths of depravity to which the state had been plunged on Zuma’s watch.
At the time of the third Glenister case, which was prepared in 2012, Clem Sunter, the scenario planner, estimated that the chances of South Africa becoming a failed state were one in four. Today his prognostication is that the chances have narrowed to what he describes as a “50/50” chance of failure. Had truly constitutionally compliant machinery of state been put in place to deal with the scourge of serious corruption those odds would surely not be as dire as they are today. Allowing the Hawks to remain in the SAPS, where they have had virtually no impact on serious corruption, has cost South Africa dearly.
The current scenario in South Africa is the true legacy of the chief justiceship of Mogoeng Mogoeng. He went from the blinding light of his mute dissent in Dey to his encounters with the dark knight of Nkandla, doing little to enhance the reputation of his court and much to disadvantage the prospects of upholding the rule of law and constitutionalism in South Africa. DM
Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.