MOGOENG MOGOENG CJ and the end of an Era: A Brief Perspective

To my knowledge, neither until, nor since, the nomination of then Justice Mogoeng as Chief Justice of South Africa has a candidate for judicial appointment in post-1994 South Africa been subjected to such virulent attack in the media by laymen, political parties and lawyers alike. One remembers a Daily Maverick headline that screamed “Why Why Mogoeng Mogoeng?”

The Western Cape Judge President and two Justices of the Supreme Court of Appeal who have endured virulent attacks from the same source for penning a judgment with which the journalists did not agree, were already judges when attacked.

As if the candidate were a beached whale, every man and his dog felt entitled to take a bite. It was all in bad taste.

But for me, most disturbing of all were the testy exchanges between the candidate and the Deputy Chief Justice who chaired the proceedings of the  Judicial Service Commission that is charged with recommending persons for judicial appointment to the President. That weekend in early September 2011, at the Cape Town International Convention Centre and the Westin Grand Hotel, probably ranks among the most unfortunate and regrettable episodes in post-1994 South Africa’s judicial history.

From that example, an opposition political party, the Democratic Alliance, took heart and threatened to challenge the appointment in court. This it did after a stillborn (and constitutionally delinquent) political ploy of advancing an alternative name for consideration for the position of Chief Justice. At the time, I dared the then leader of that political party to challenge the appointment. She did not bite.

Here is how I did it, in September 2011:

Why DA Legal Challenge Will Fail

If anyone had any doubt that the Constitutional Court is fast becoming a political battleground through which contestants compete for dominant space in which to assert their philosophical leanings, the Democratic Alliance (DA) has made this perfectly clear.

The DA has taken the view that if it can’t beat the ANC at the polls, it will seek to impose its philosophy through the Constitutional Court by ensuring no candidate whose philosophy seems anathema to its own takes the reigns there. The ANC calls it “counter-revolutionary”. I call it seditious.

It seeks to do this by challenging the President’s appointment of the chief justice. Since its application papers have not yet been made public, one can only speculate about what relief the DA will seek and what the bases therefor will be. My guess is that it will seek a review application to set aside the decision of the JSC and the President.

The basis for the review application is likely to be, among other things, that Justice Mogoeng is not the best candidate for the position [as members of the party have said in public] and that the JSC acted capriciously in refusing to entertain the DA’s eleventh hour proposal of another candidate for consideration and interview.

If that is what the DA has in mind, it is likely to fail in my view. Let me tell you why.

Section 174(3) of the Constitution is the provision under which the President exercises the power to appoint the Chief Justice. The President, and only he, has that power. The only limitation is that he must consult the JSC and leaders of political parties represented in Parliament before making the appointment.

In consulting, the President is not required by the Constitution to obtain the “approval” or “acquiescence” of the JSC and political party leaders in the choice of his preferred candidate for Chief Justice. Meaningful consultation does not mean that at all. All it means is that the President must be open to persuasion; but the final decision is his and his alone. The DA seems to have lost sight of this and that is likely to be the first soft under-belly of its challenge.

I was initially sceptical about Justice Mogoeng’s nomination. I decided to fly down to Cape Town and satisfy myself that I was right in my scepticism. My mind was made up that he was not a suitable candidate for the job. But after listening to his address, and to his responses to sometimes virulent attack, I changed my mind. I am now convinced that Justice Mogoeng is suitable for the job.

That leads me to the second weakness in the DA’s case. It says Justice Mogoeng is not the best candidate for the job because he is not “exceptional”. That is not the standard set by the Constitution. Section 174(1) describes succinctly the qualification criteria for a judge: “a fit and proper person”. As a Constitutional Court judge, Justice Mogoeng is clearly “fit and proper”. There are no special criteria for a Chief Justice.

Thirdly, the DA baulks at the nomination of a single candidate for the position of Chief Justice. It prefers that the President selects his candidate from a list of “exceptional” persons. There is absolutely no basis for this in the Constitution. It is in the appointment of other judges of the Constitutional Court that the Constitution makes provision for selection from a list of candidates. Not so in relation to the appointment of the Chief Justice.

Fourthly, the DA attacks Justice Mogoeng for not having appeared as counsel in the Appeal Court in reported judgments, not having many reported judgments in his name as a judge, and not having produced commercial and civil law judgments.

Quite apart from ignoring historically skewed briefing patterns in South Africa, where black practitioners have largely been seen as good enough for legal aid work and would not see a commercial brief in the course of their practice, this attack also displays ignorance of the dynamics involved in the decision as regards what judgments get reported.

Speaking from experience, I have acted in the High Court and sat with senior judges who told me I should mark 3 of my judgments reportable. I did. They have still not been reported. The DA seems unaware of the fluidity of the criteria for reportable judgments.

Fifthly, the DA attacks Justice Mogoeng’s religious beliefs and says this will be an impediment to “an unwavering adherence to the Constitution”. The Constitutional Court has in at least two judgments recognised the “presumption of impartiality” and integrity in a judge. International instruments on judicial ethics do too. The DA seems to presume the opposite, that Justice Mogoeng will place his religious beliefs above his oath of office. This is wrong.

Sixthly, the DA attacks Justice Mogoeng as being gender insensitive. In support it refers to dicta in a handful of cases, ignoring scores of others where Justice Mogoeng expresses his distaste for sexual assault and rape on women. It also ignores the fact that deciding on an appropriate sentence is not an exact science, as demonstrated by at least two other post-Constitution judges of the Supreme Court of Appeal who reduced a life sentence in a rape case the facts of which are too ghastly to repeat here.

Seventhly, the DA attacks Justice Mogoeng as lacking the intellectual rigour to be Chief Justice. There is no such requirement in the Constitution. It is in any event factually incorrect. Clearly the DA did not listen to Justice Mogoeng’s answers. Perhaps it is offended, as persons of a liberal hue tend to be, that a black professional dared to articulate himself confident in his considerable abilities, confident in who he is and with the sureness of purpose as regards what real access to justice for ordinary South Africans requires. “Arrogant” is usually the chant of choice – and was.

Finally, the DA has a short memory. When former Chief Justice Chaskalson was appointed President of the Constitutional Court in 1994, he had never sat as a judge, had not a single reported judgment in his name as a judge, and practised largely human rights and public interest law at the Legal Resources Centre. Lack of commercial law practice was not an impediment to his elevation.

Back to the present:

Of the many qualities that Chief Justice Mogoeng has demonstrated over the years as Chief Justice, the one that stands out for me is his unwavering and fierce independence as a Judge and a Leader. These days it appears, for many, as if “judicial independence” is simply an attribute firmly lodged in the Constitution, only to be invoked from time to time in the odd judgment but not a lived experience. I particularly appreciate Chief Justice Mogoeng’s appreciation of the fact (for it is fact) that a Judge is also a citizen who enjoys all the rights in the Constitution, including the right to freedom of expression and opinion.

This idea that Judges should speak only through their judgments is, to my mind, so 1984 – yes, as in Orwellian. It is not even a true position in reality because judges are known to express views outside the courtroom. Judges speak through the ballot box too. Some vote for the ruling party, others for the main opposition. That is a political statement, right there. To pretend that judges express themselves only through their judgments is to be disingenuous. Recently, a former Constitutional Court Justice was quoted as likening people who question the provenance of covid19 vaccines to “AIDS denialists”. Another former Constitutional Court Justice is not shy to express his strong (and unflattering) views publicly about the suitability of a serving Judge of the High Court. A former Deputy Chief Justice, while serving still, famously expressed the view that in a judge’s decision-making it is not what the ruling party wants that matters but rather what is good for the people. Anyone who read that remark as being indicative of the Deputy Chief Justice’s antipathy towards the ruling party, and so incapable of judging a case involving the ruling party fairly, would need to have his or her head read.

Chief Justice Mogoeng expressed his personal views publicly. He did not hide his personal and philosophical outlook behind the judicial facade. I admire him for that. As a practitioner, I would much rather face a Judge whose world outlook (or inarticulate premise) is no secret, than one who pretends to be neutral on every issue that comes before him or her for determination – a human and judicial impossibility. It is when a Judge, known to be opposed to abortion, rules in favour of it in the particular circumstances of the case, that gives true meaning to judicial independence, fidelity to the law and judicial impartiality. A judge who feigns neutrality on every issue he or she has to decide, while bringing his or her deeply held convictions to bear on his or her judgments, with little or no fidelity to the law and the Constitution, is a danger to a Constitutional democracy.

Happily, I am unable to say that about Chief Justice Mogoeng. May his successor take a leaf from his book.

In fact, the Constitutional Court itself made the following poignant observation in the early years of its existence [in SACCAWU v I & J Ltd 2000 (3) SA 705 (CC)], effectively lending a lie to this oft-repeated mantra that judges speak through their judgments:

“‘[A]bsolute neutrality’ is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality – a distinction the Sarfu decision itself vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion – without unfitting adherence to either party or to the Judge’s own predilections, preconceptions and personal views – that is the keystone of a civilised system of adjudication. Impartiality requires, in short, ‘a mind open to persuasion by the evidence and the submissions of counsel’; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding.”

A Judge should not hide behind a judicial facade while making decisions that are informed by hidden considerations that have little or nothing to do with fidelity to the law and the Constitution. A Judge should live openly, express his or her views openly and publicly on any subject. The judicial robe is not a muzzle. Judges should do the hard work of judging, which entails – inevitably – open-mindedness readiness to persuasion without unfitting adherence to his or her own publicly known predilections, preconceptions and personal views.

That, in my view, is the true art of Judging. On that score, I commend Chief Justice Mogoeng.

In closing, it is my fervent hope that we shall not again be subjected to the vituperative exchanges  between leaders of the judiciary that we witnessed on those two days in September 2011.

As for politicians, well, no bar is too low.