Controversial from start to finish, chief justice Mogoeng’s term ...

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Controversial from start to finish, chief justice Mogoeng’s term is over

Mogoeng Mogoeng, who retires at midnight, is lauded for some judgments, but made several questionable remarks

Journalist
Chief justice Mogoeng Mogoeng's 10-year tenure officially ends on October 11. File photo.
Chief justice Mogoeng Mogoeng's 10-year tenure officially ends on October 11. File photo.
Image: Sebabatso Mosamo/Sunday Times

Chief justice Mogoeng Mogoeng is due to retire as the head of the judiciary at midnight on Monday after 10 years in the hot seat.

Mogoeng has been one of the longest-serving chief justices since the dawn of democracy in 1994, having been nominated and confirmed for the post in 2011, after being appointed as judge of the court in 2009.

In the weeks after then-president Jacob Zuma nominated him for the top post in 2011, there was a public outcry, with some commentators remarking that he was not senior enough and that they believed Zuma should have nominated deputy chief justice Dikgang Moseneke instead.

There were also questions about some of the judgments he had written as a judge in the high court, where he found mitigating factors in cases of attempted rape of children.  

After his appointment as chief justice, Mogoeng took his role as head of the judiciary seriously.

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 government ignored a high court order that then Sudanese president Omar al-Bashir be prevented from leaving SA after an AU conference in Johannesburg.

This was until the court could decide on whether Bashir should be arrested and handed over to the International Criminal Court in terms of an international treaty and South African law.

At an eight-a-side meeting, the parties agreed to, among others, that court orders should be respected and complied with.

Mogoeng became the head of the judiciary after the establishment of the office of the chief justice in 2010, a national department established for the administration of the judiciary.

Inside the courtroom, one of the most remarkable judgments he wrote concerned the status of remedial action by the public protector.

The case was about Zuma's failure to comply with remedial action taken against him by public protector Thuli Madonsela concerning “security upgrades” at his home in Nkandla.

In that judgment, Mogoeng held that the remedial action taken by the public protector against Zuma was binding.

He also held that the National Treasury must determine the reasonable costs of those measures implemented by the department of public works at Zuma’s Nkandla homestead that did not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool.

Council for the Advancement of the South African Constitution executive secretary Lawson Naidoo said Mogoeng started his tenure under some controversy and he leaves under some controversy as well.

Naidoo said Mogoeng was the only candidate nominated by Zuma for the post and that he seemed to leapfrog the more senior and experienced Moseneke. He said there was a level of cynicism when Mogoeng was appointed, but Mogoeng proved his detractors wrong when he set about to affirm the independence and authority of the Constitutional Court.

“He responded to challenges in the aftermath of the Bashir matter when the judiciary was coming under criticism. He can look at those things with pride,” Naidoo said.

However, Naidoo said Mogoeng's recent extrajudicial pronouncements on Covid-19 vaccines and comments regarding Palestine and Israel's relations were unwarranted and served to undermine respect for the judiciary.

“He leaves the (Judicial Service Commission) with a finding that he breached the code of ethics.”

There was a complaint that he was found to have contravened the code of judicial conduct. Mogoeng is seeking to challenge that finding.

“That matter is unresolved,” Naidoo said.

CAREER SUMMARY

Chief justice Mogoeng Mogoeng was born in a village called Goo-Mokgatlha in North West. He is married to Mmaphefo and they have three children, Johanna, Mogaetsho and Oteng.

The Constitutional Court website states Mogoeng started his professional career as a temporary interpreter and was later appointed high court prosecutor in Mafikeng. He did pupillage at the Johannesburg Bar and practised as an advocate at that bar from June 1990 until the end of 1991.

He left to join Mafikeng Bar from January 1992 and later served as the deputy chairperson of that Bar Association until his elevation to the bench.

In June 1997, he was appointed judge of the North West High Court and in April 2000 a judge of the labour appeal court. In October 2002, he was elevated to the position of judge president of the North West High Court.

Mogoeng was requested by fellow judges president to serve as a member of the five-member committee led by then chief justice Pius Langa. That committee investigated racial and gender discrimination within the judiciary and proposed the necessary remedial action.

He was appointed to the Constitutional Court in 2009 and subsequently elevated to the position of Chief Justice on September 8 2011. In that capacity, he led both the Constitutional Court and the judiciary. He also chaired the Judicial Service Commission (JSC), the South African Judicial Education Institute (SAJEI) Council and the National Efficiency Committee. In April 2017, Mogoeng was elected as the president of the Conference of the Jurisdictions of Africa for a period of two years. 

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