The Lord’s Chief Justice

Mogoeng Mogoeng, South Africa’s chief justice from 2011 to 2021, is midwifing the conservative turn in South Africa’s public life. From retirement, he may also eye public office.

President Cyril Ramaphosa with Deputy President David Mabuza and Chief Justice Mogoeng Mogoeng at the swearing-in ceremony of the new National Executive at the Tuynhuis, in Cape Town. Image credit GCIS via Flickr CC BY-ND 2.0.

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.

In a challenge by president Cyril Ramaphosa to a public protector report in which he was alleged to have engaged in money laundering during his fundraising campaign for the ANC presidency, Mogoeng went as far as saying it didn’t matter that, when deciding whether or not a reasonable suspicion of money laundering by Ramaphosa had been established, the public protector referred to the wrong statute—which did not deal with the offence at all—her job was merely to alert the relevant authorities. She had directed the prosecution service to initiate an investigation into the money laundering claim and to prosecute Ramaphosa. How she could establish the probable existence of an offense the elements of which she did not know remains a mystery.

In an earlier case, Mogoeng had come to the defense of Busisiwe Mkhebane, the beleaguered public protector who took over from anti-corruption star Thuli Madonsela, and has, by my estimation, lost more cases than she has won. There, she conducted an investigation into whether a late-apartheid, billion rand loan advanced by the central bank to a financially distressed bank had been concluded illegally. In the course of her investigation, the public protector engaged in conduct that can only be politely described as shady. The loan, otherwise referred to as a “lifeboat,” had been investigated on at least three previous occasions before the public protector took it up. Each time, it was found to have been unlawful and the government had been asked to recoup the cash. It did not do so. In her report, Mkhwebane found the government’s inaction to have been improper, ordered that it recoup the loan, and stunningly, directed the South African parliament to amend the country’s constitution to change the central bank’s main objective and to alter its relationship with its treasury minister.

The central bank challenged the report and won. It also asked the court to order Mkhwebane to pay the costs of the litigation out of her own pocket as a mark of displeasure over her conduct. The court obliged, finding that she had failed to disclose meetings she had had with the country’s spy agency and the office of then-president Zuma; had not kept records or transcripts of those meetings; had engaged in unilateral discussions about the investigation without the bank’s input; and that she had been less than frugal with the truth. On appeal, Mogoeng was willing to overlook Mkhebane’s actions, which he referred to as “minor and harmless infractions” (the rest of the court found them to have been “egregious”—including a “number of falsehoods”), in order to deal with the real issue: the lifeboat. Mogoeng lamented that “the brightly highlighted apparent corruption, fraud, illegality or impropriety involving the … bailout of Bankorp [the financially distressed bank] … has virtually disappeared,” even going as far as accusing the central bank of being “a vindictive litigant that yearns for untouchability.”. The contrast between the judges’ views of the matter could not be more stark. For Mogoeng, legal niceties, however pronounced, could not stand in the way of taking on Goliath and his legion of minions, those pesky “economic markets.” For Mogoeng, where the law was an obstacle to achieving a particular result, an appeal to the open-ended and often vague values underlying legal texts was all that was necessary to dispose of it.

Mogoeng’s brand of conservatism is conservatism in the true sense: an earnest commitment to tradition, authority and religion. In cases where these values were implicated, Mogoeng would feature prominently, often waiting until his colleagues had exhausted their questions before intervening to interrogate counsel. Sometimes his questioning tended to be somewhat tangential, betraying a lack of preparedness and perhaps a bit too much passion. When one reads closely those cases which did not make the headlines, the run-of-the-mill cases, there appears to be a discernable pattern.

On questions of the exercise of executive authority he preferred to side with the executive, often appearing exasperated by his colleagues’ otherwise interventionist attitude over the control of executive power. In a tort claim for damages following an unlawful arrest, Mogoeng dissented from a majority opinion attributing liability to the minister of police for the claimant’s court-ordered detention on remand. The court had found that the arresting officer was aware that the arrest was unlawful, that remand proceedings were almost mechanical with the result that the claimant would in all likelihood be remanded for further detention—the unlawful arrest notwithstanding—and that she had reconciled herself with that possibility and therefore could not escape liability for the continued unlawful detention.

Mogoeng disagreed. The further detention could not be attributed to the minister. Instead, the mere fact that the claimant was brought to court after the arrest was an independent new event which broke the causal chain of events; the police’s liability had been discharged, the courts were responsible for the further detention, not the minister. It was a stunning judgment, turning established tort law principles on their heads but predictably did not raise eyebrows in the media. It just wasn’t sexy enough.

Another area where Mogoeng was prominent was in cases involving family life, from marriage to corporal punishment by parents. Mogoeng took any and all opportunities to write on these areas. One of his most recent judgments was in a constitutional challenge to a statute that did not allow unmarried fathers to register the births of their children in the absence of their mothers (in this case the mother was an undocumented foreign national, and the father a South African citizen). The court ultimately found that the statute was unfairly discriminatory on the basis of marital status. Mogoeng took the opportunity to extol the virtues and societal value of marriage over all other forms of familial relation. Finding no unfair discrimination, Mogoeng defended the law, arguing that marriage was central to its objectives and pointing out that allowing unmarried fathers to register their children’s births would lead to random men claiming babies in hospitals in order to traffic them on the black market. To the majority’s complaint that such an approach was prejudicial against unmarried fathers—because married men can also be human traffickers—Mogoeng had a simple answer: the father would simply have to produce a marriage certificate linking him to the mother (no consideration appears to have been given to the very real prospect of falsified marriage certificates, apparently).

Mogoeng’s penchant for conspiracies had only emerged later in his tenure as chief justice, but was very apparent in his public life. In December 2020, when South Africa had just entered its deadly second wave of the pandemic, Mogoeng gave a speech at a government function where, as one does, he led the faithful in prayer. He called on God to destroy any “vaccine that is being manufactured to advance a satanic agenda, the mark of the beast, 666 … for the purpose of corrupting the DNA of people.”

A furore followed, with several sectors of society repudiating his views. Naturally, he doubled down, adding at a press conference that he did not think vaccines should ever be mandatory. It didn’t seem like the speech would have much of an impact at the time, given that South Africa’s vaccination program was not even off the ground. But the slow uptake of vaccines by especially vulnerable groups has shown that it may have been instrumental in encouraging vaccine hesitancy.

Mogoeng of course defended his views on the basis of religious expression. He reiterated that he wasn’t saying anything about the efficacy of the vaccines, he wasn’t a scientist, but was merely doing his part “as a prayer warrior.” His Christian faith was never a private matter, that’s for sure. He famously knelt to pray during televised parliamentary proceedings over which he presided, and gifted Ramaphosa with a Bible at his inauguration as South Africa’s president.

In the earlier years of his tenure, following his tumultuous nomination, his religious life had been somewhat subdued. But towards the end it was all anyone could talk about. Mogoeng drew the ire of all manner of people in June 2020 following his remarks at a webinar hosted by The Jerusalem Post, where he expressed concern about South Africa’s foreign policy on Israel and Palestine, viewing it as essentially unbiblical, and expressing an almost unqualified love of and for Israel. Mogoeng’s comments were made a day before South Africa’s government was set to raise its objections to Israel’s planned annexation of the West Bank and the Jordan Valley at the UN Security Council, suggesting that the organizers of the webinar had intended for him to publicly contradict his government’s actions. Faced with judicial misconduct complaints following those remarks, he again raised the religious expression defence. The judicial conduct committee found him guilty of breaching his office’s code of conduct and ordered him to apologize. He refused and appealed the decision.

In May, Mogoeng opted to take an extended leave of absence from office which conveniently coincided with his retirement, leaving in his wake a judiciary in ruins. Reflecting on his time in office, former member of parliament Koos van der Merwe (for the Inkatha Freedom Party), who is famous for having asked Mogoeng whether God wanted him to be chief justice (you can guess the answer), said it became clear to him “that [Mogoeng’s] true ideal was to become the president of South Africa.” Perhaps Van der Merwe is correct. Mogoeng appeared to have grown frustrated with the constraints of judicial office and seemed to have fully embraced populist politics. In fact, in 2018 he was reported to have sat in less than half of the cases heard by the Constitutional Court that year, spending his time travelling internationally and delivering talks instead (and raking up millions of rands in taxpayer bills in the process). He appeared publicly with increasing frequency and was not at all afraid to court controversy.

His Nelson Mandela Lecture in 2019 would seem to many to have been the springboard for his new public career as chief opinionista, but in fact, it was a little known TEDxTalk delivered in Mahikeng in September 2019 that signaled a change in his persona. In it, he reminisced about a time “when rocks were soft” and bemoaned the state of South African society, which had fallen very far off from the days when “obedience to lawful authority was the order of the day.” Mogoeng rhetorically asked his audience how to fix it: “do we think that we should return to basics … or do we think that perhaps something more sophisticated can be gathered from books that will change us into the kind of society we need to be? I think we need to go back to basics…” He gave an impassioned speech rich with anecdotes of his simple village upbringing which was the pinnacle of the society he wanted to see, going as far as questioning whether South Africa’s vast yet somehow inadequate social security system was “sustainable.” He wondered how many more jobs could we create with those billions of rands we spend on social assistance every month? If you are at all familiar with South African politics, you will know that these are your everyman’s talking points. The ground is fertile for such politics.

Mogoeng espouses all of the characteristics of a modern day conservative. Traditional values like the primacy of marriage and family in society; obedience to and veneration of authority; a Christian ethic of politics— a disgust of corruption and greed; distrust of experts and intellectuals; preferring tradition over reason; and above all, an almost civilizing commitment to religion. His quiet departure from office surprised everyone who had known him to be quite boisterous and pompous—an example of his eccentricities being his annual parade of judges in robes at the Constitutional Court while he delivers his “Judiciary Annual Report,” a sort of “State of the Nation” address but for judges—leaving them to wonder why he would choose to go out so sad.

Had the controversy of the preceding months finally taken its toll or was something more sinister afoot? His actions towards the end pointed to something on the horizon. While speculation over the reasons for his early exit mounted, he quietly emerged from his withdrawal from public life in late September. He did not go on webinars or radio shows or the like. He went back to his flock; the faithful. Ever so fiery, he stood on pulpits across the country, delivering sermons so overflowing with moral indignation that they would put St. Paul the Apostle to shame.

On October 31, the South African weekly Sunday Times reported that Mogoeng had been approached by an organization called the Independent Citizens Movement, a grouping of pastors and professionals, to stand as its presidential candidate in the 2024 national elections. Mogoeng, characteristically responded that he would only stand for public office “if God wants him to.” Indeed, President Mogoeng is here; delivered by the Lord himself. The chief justice hath become his true self. We have reached Damascus.

Further Reading