Chief Justice Mogoeng Mogoeng's decision to take long leave and exit from his position as South Africa's most powerful judge shouldn't be seen as a surprise, as Mogoeng has already opted out of leading the country's courts, writes Karyn Maughan.
As the Constitutional Court prepares to rule on whether former president Jacob Zuma should go to prison for contempt, Chief Justice Mogoeng Mogoeng has bowed out of office - by taking extended leave five months before his term is due to end.
Mogoeng's low-key exit, announced on the same politically tumultuous day as the ANC confirmed that its secretary-general Ace Magashule had been suspended, did not come as a surprise to many within the judiciary - as the Chief Justice had told the Judicial Services Commission, less than two weeks ago, that he intended to take long leave. But, in many respects, Mogoeng had already opted out of leading South Africa's courts.
For reasons that have yet to be explained, he chose not to sit on the Constitutional Court Bench that decided on the State Capture Inquiry's application to compel Zuma to appear before it and answer non-incriminating questions. When Zuma defied the court's ruling that he was obliged to appear before the commission and did not have a blanket right to silence, Mogoeng also did not preside over the inquiry's contempt case against the former president - a fact that Zuma seized upon when he wrote a letter defending his conduct to the Chief Justice.
"I have every faith in you as a jurist and a person of absolute integrity," Zuma told Mogoeng before detailing how his potential imprisonment by the Constitutional Court was a "gross irregularity" and a "constitutional experiment" driven by political, rather than legal, motives.
"I raise the issues I raise as matters of principle and not as an attack on you. I am fully aware that you were also not part of the panel that complied with [Deputy Chief Justice Raymond] Zondo's strange applications to the Constitutional Court."
Quick to act
Mogoeng has previously been quick to act when the judiciary started coming under what he described as an unfair attack from certain high-ranking ANC officials, including then secretary-general Gwede Mantashe in 2015. He called for an unprecedented meeting between senior members of the judiciary and the Zuma administration. He stressed that - while the judiciary should and must be criticised when it was warranted - that criticism needed to be specific and not framed in broad and unverifiable political terms.
Four years later, following an anonymous Twitter campaign that accused several senior judges of being on the payroll of President Cyril Ramaphosa's CR17 election campaign, Mogoeng announced that his office had approached the police to find out who was behind the tweets. He also urged South Africans who have credible evidence against any judge to come forward and be prepared to give evidence in a commission of inquiry or a court of law.
"Anyone with evidence to support this confidence damaging allegations that any judge is corrupt and has been captured must stop hiding behind fictional characters or names," he said.
"Please, make your true identity and contact details known to us, the South African public. Tell us which judge has been captured or corrupted and by whom. If money or any benefit was given, tell us how much, when, and produce proof to that effect and for the sake of the South African public that deserves a corrupt-free judiciary, be prepared to give evidence in a court of law or a commission of inquiry. We are dead against corruption and capture."
But, after both Zuma and Economic Freedom Fighters leader Julius Malema this year made unsubstantiated allegations that Gauteng High Court Deputy Judge President Aubrey Ledwaba had deliberately sealed the CR17 bank statements to protect the identities of corrupt judges, Mogoeng elected to remain silent.
He also chose to actively politicise the interview of Constitutional Court nominee Dhaya Pillay, who had ruled against Zuma in a defamation case brought against him by former minister Derek Hanekom.
Pillay had earlier been accused of being an "activist judge" by Malema, who said she was "unfit for office" after she confirmed having a long-running friendship with Minister Pravin Gordhan.
In the closing moments of Pillay's interview, Mogoeng suddenly remembered that then finance minister Gordhan had, during an unrelated meeting, asked him how she had done in her 2016 interview for a position at the Supreme Court of Appeal.
"But what stuck in my mind was he asked me a question: 'How did my friend Dhaya Pillay perform?' Mogoeng said.
"We had just announced the results, it was public knowledge that you did not make it. This thing has stayed with me. It got renewed as Malema engaged you.
"Why did the minister make an effort to meet me? We are not friends. I don't know him from anywhere except from television. Why did he make a trip to seek an audience with me to ask me how did 'my friend' perform?
"Is it potentially compromising to judicial independence and impartiality for a minister or a senior politician to be keenly interested in the upward mobility, or to look like he or she is interested in the upward mobility of a judge?"
Pillay said she was not aware of the interaction, and Mogoeng acknowledged that Gordhan had simply asked how she had done and did not say "anything like 'you should appoint her'".
READ | Pravin Gordhan writes to JSC to clarify meeting with Chief Justice Mogoeng
Gordhan subsequently released a statement, confirming that he had asked the question at the tail end of a scheduled meeting and that it was in no way intended to influence any pending decision on Pillay's nomination to the Appeal Court. The damage had, however, already been done. Both Mogoeng and Malema had effectively bolstered Zuma's attacks on the Constitutional Court Bench that would decide on the contempt case against him, which includes acting Justice Pillay.
Issue with Pillay
In his 21-page letter sent to Mogoeng, Zuma had taken a specific issue that Pillay was one of the judges who would decide his fate in the inquiry's contempt case against him. Zuma has described her as "a judicial officer whose judicial antipathy towards me is well recorded in a court judgment and an order for my arrest while I was in hospital".
Pillay had issued a suspended order for Zuma's arrest after his lawyer produced what she regarded as inadequate evidence of his alleged ill-health when he failed to attend one of his corruption trial hearings. Her order was subsequently lifted.
"I found the participation of Acting Justice Pillay particularly disturbing and a clear indication of her unmitigated lack of discretion and a deeply irresponsible exercise of judicial power," Zuma stated in his letter to Mogoeng, in a repeat of criticism he had previously levelled at the judge. By seeking to suggest that Gordhan had nefarious motives in asking how Pillay had fared in a 2016 JSC interview, Mogoeng effectively threw petrol on Zuma's already simmering accusations against the judge.
News24 has learnt from impeccably placed sources that Mogoeng was questioned over his Gordhan questions to Pillay - which she had not been forewarned about, in accordance with standard JSC practices - during closed commission deliberations. He is understood to have refused to apologise over the incident.
Judicial Services Commission spokesperson Dali Mpofu has declined to make any comment on what happened during that closed session.
"The JSC generally does not confirm or deny the usual speculation regarding its deliberations," he said. "To do so would defeat the whole purpose of holding its deliberations behind closed doors."
What is clear is this: rather than attempting to forge unity within the judiciary and protect its integrity from baseless and deeply politicised attacks, Mogoeng has seemingly chosen to sow division and bolster suspicions that the courts he leads are open to political capture. This was apparent in his attacks on the Supreme Court of Appeal, which is widely regarded as the most efficient and well-run court in South Africa and led by President Mandisa Maya - a potential frontrunner for appointment as Chief Justice.
READ | Karyn Maughan: Mogoeng, Malema and the judges: Inside the JSC hearings that shook the judiciary
In 2017, Maya revealed during JSC interviews that it was only after a diversity workshop earlier that year that black and white judges sat together in the tea room. She said some judges felt that others did not deserve to be at the appeal court.
Following questions from Mogoeng in 2018, it emerged that the "Top Six" - an unnamed group pf senior judges who have never been firmly identified - were the alleged source of conflict in the Appeal Court, accused of mistreating junior colleagues. Maya has been widely credited with resolving these dynamics within her court through, among other things, diversity and inclusion workshops run by Nene Molefi.
"They [the Appeal Court judges] don't dread going to work at the beginning of each day, which is what they would tell you previously; that coming back to Bloemfontein, people would get sick," she told the Mail & Guardian in 2019.
"They got sick, I mean, literally. So it was that bad. And you don't hear any of that now."
Name and shame
Maya's apparent success in dealing with the issues that had once plagued her court was repeatedly acknowledged by the judicial nominees who had served at the Appeal Court during the recent JSC interviews. But Mogoeng nonetheless insisted on revisiting the Top 6 controversy. He asked Judge Rammaka Mathopo - who had served at the Appeal Court - to "name and shame" the judges in the Top 6 and repeated that there had been a "number of complaints" about them.
"Yes, it is true. We had those problems, and we experienced those problems quite painfully. I witnessed, I heard, I experienced... and it was painful when junior colleagues... were subjected to unfair criticisms, unfair differentiation, unfair treatment by the senior colleagues," Mathopo said. He however, stressed that he would not name the judges involved. He also commended Maya's efforts to deal with these tensions, which he said came to a head during a no-holds-barred meeting in 2019.
Following that meeting, he said, he'd been told that there was "light at the end of the tunnel". He stressed that he had received reports that "things have changed for the better" while serving as an acting justice at the Constitutional Court. Mogoeng did not seem satisfied with that answer and questioned Mathopo on why the Top 6 issue had not received more media coverage.
"Some of us have things written about them almost all the time, even lies," he said. "Why is it, if you know, that this shocking development around the Top 6 does not seem to have received the public attention it deserves by the same structures that write about us and interrogate and fabricate things about some of us... and there was never a deliberate action to find them out, to name and shame them?
"Why does it look like there is some cover around this Top 6? Why does it look like there is no scrutiny over the Top 6?"
Mathopo responded that the Top 6 were "the darlings" and "people of a particular colour", but refused to name them because, he contended, that was for those who they had victimised to do.
Aggrieved
It was an immensely telling exchange. Mogoeng, who has been criticised over his stance on South Africa's relationship with Israel and his prayers that satanic Covid-19 vaccines would "burn in the fire", was clearly aggrieved that the issues experienced by the Appeal Court - which Maya resolved two years ago - had not received the same level of attention as his utterances had.
His attack on the Appeal Court also clearly undermined Maya's leadership, which has seen her court handing down rulings at a significantly faster rate than the Constitutional Court.
On the last day of the JSC hearings, Mogoeng would be accused by Malema of "ambushing" a Western Cape High Court nominee with a voice note that appeared highly critical of the "bleeding and rudderless" state of the judiciary and which had urged magistrates to support Maya's appointment as the next Chief Justice.
Malema backed down after Mogoeng revealed that the nominee, magistrate Daniel Thulare, had been forewarned that he would be asked about that voice note, where he argued that the judiciary "needs a calming leadership" and Maya was the best person to provide that.
Mogoeng's decision to take Thulare on about that voice note, which clearly raised questions about his leadership of the courts, seemed profoundly petty - and potentially embarrassing for Maya. After that hearing, Mogoeng announced to the JSC that he was going to take long leave.
He will now be effectively replaced by Justice Sisi Khampepe, who has been appointed as Acting Deputy Chief Justice. Deputy Chief Justice Raymond Zondo cannot take over because of the demands being placed on him in his position as chair of the State Capture Inquiry.
Mogoeng's exit will put pressure on President Cyril Ramaphosa to decide on who would now lead South Africa's judiciary, at a time when the courts and rule of law itself are under continuous attack.
Use of a panel
News24 has learnt that the president is considering the use of a panel of legal and judicial heavyweights to determine who the next Chief Justice should be, as he did before he appointed Shamila Batohi as National Director of Public Prosecutions.
Unfortunately, however, Mogoeng's decision to take long leave has been framed by Zuma's supporters as a "resignation" driven by his refusal to sign an arrest warrant for the former president. This narrative appears unlikely, given that the Constitutional Court has yet to rule on the inquiry's contempt case. The Office of the Chief Justice has also been at pains to refute this, by stressing that there was nothing untoward about Mogoeng's decision to take long leave.
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"It is a normal practice in the Judiciary for Judges to take their leave whenever it is due," the OCJ stated.
"The Chief Justice's long leave was due and he has duly taken it."
Mogoeng may have chosen to leave his position quietly and without fanfare but, given what the Chief Justice has said and done during his last season as South Africa's most powerful judge, the question remains: what is the actual state of the judiciary he has left behind?
And will his successor be walking into a court system resilient enough to face the firestorms that await it? Or still burning, from the embers he has undoubtedly helped to fan?
