Nkosikhulule Nyembezi
CAPE TOWN - It’s farewell to Chief Justice Mogoeng Mogoeng, but what has been his celebrated impact on the administration of justice on the national stage?
As Justice Mogoeng retires, Mogoengologists have been busy again, ruminating about the deeper reasons for his style of stewardship of the judiciary: attentive, oriented towards consensus, and pragmatic, sometimes overreaching, sprinkled with Christian fundamentalism – the list is, by now, well known, if not outright clichéd.
While future historians are likely to marvel at his tactical skills in micropolitics of asserting the independence of the judiciary and the interpretation of the Constitution and the law, they may also conclude that he was well placed to have done more on the transformation of our courts and nurturing the consensus role of the Constitutional Court which should contribute to jurisprudential certainty in our legal system – and failed to do so in his latter months in the office.
It turns out there is no such thing as leading from the back in the apex court, and that is why he is facing criticism for his “early retirement” after taking a long leave in May at a time when the court needed his leadership.
As the chairperson of the Western Cape Language Committee, a former member of the Western Cape Provincial Geographical Naming Committee, a candidate for the position of a commissioner in the Electoral Commission, a human rights activist and an academic, I confess that I loved Justice Mogoeng as the head of the judiciary, the chairperson of the panel tasked with filling vacancies in the Electoral Commission, the chairperson of the Judicial Services Commission, as well as a Christian.
I noticed his unique personality outside the courtroom when he delivered touching tributes at funerals of his colleagues, including those of former Chief Justice Pius Nkonzo Langa, Justice Thembisile Lewis Skweyiya, and Judge Fikile Charles Bam.
Last month, I likened the Constitutional Court’s consensus-driven approach, which strives to bring legal certainty in our constitutional democracy, to a giant slot machine. The more pineapples, or oranges, line up on the screen, the better the results.
He invested a lot in ensuring that alignment through well-articulated and forceful judgments, including the 2016 ruling in the matter about the street renaming process in the Tshwane Metro Council.
But, like an old grass broom that sweeps all corners in the house, he was beginning to lose his parts to the rubbish bin. For example, there were instances where fears that his Christian faith would trump any commitment to constitutional values were stretched to the limit.
In his dissenting judgment last month, in the matter that determined that unmarried fathers can register the birth and death of their children with the department of Home Affairs in the absence of mothers, he held that marriage is such an important and invaluable social institution that it is not to be decried and wished or spoken out of its necessary existence or role and that it could not be construed as an instrument of unfair discrimination.
The majority ruled that section 10 of the Births and Deaths Registration Act 51 of 1992 was unconstitutional, in that it prohibited an unmarried father from giving notice of the birth of his child under his surname in the absence of the child’s mother or her express consent.
Like a palm branch that sweeps far away from the holder, leaving the rubbish near the hand, he showed indecisiveness in timeously holding to account members of the judicial system facing accusations. These include Western Cape Judge President John Hlophe and retired judge Nkola Motata as well as Ferdi Preller, Moses Mavundla and Ntsikelelo Poswayo, which he said had taken long for “good reasons.”
Much has been debated on our interactions each time when he interviewed me for a position of a commissioner in the Electoral Commission, including when I said it was “worrisome” that the president made the appointment of the chairperson of the commission and suggested that legislation needed to be changed.
We debated and agreed that the administratively balanced interviewing and recommending process that is initiated by the panel does not produce a final result in filling vacancies. Instead, it is followed in Parliament by a politically imbalanced process that has a life of its own.
And so, we were in agreement that, if the opportunity to fill three vacancies in the Electoral Commission was generally regarded as South Africa’s most important experiment in how the enjoyment of electoral rights and the dispersal of public power could be reconciled in a maturing democracy, then the candidate interviews and the appointment process, in all of its multiple stages, was the crux of that test.
Back to the July 2016 Constitutional Court decision in the matter about the street renaming process, he asserted that the Tshwane Metro Council’s decision, viewed in context, seems to have been intended to shed Pretoria of its colonial and apartheid legacy and to introduce those names that symbolise the pursuit of justice, peace, unity, reconciliation, fundamental human rights and freedoms for all South Africans.
He also asserted that the council's decision also, viewed in context, was apparently inspired by the preamble and foundational values that undergird our constitutional democracy as the decision evidently sought to give realistic expression to our deliberately self-imposed philosophy, that entails recognition of all deserving compatriots, national unity, reconciliation and healing the divisions of the past.
These are the values he articulated well in many of his judgments and the rich legacy he lives us to carry on with post his retirement.
As we ruminate about his insistence to appeal a finding by the Judicial Conduct Tribunal that he breached the Judicial Code of Conduct with criticism of South Africa’s foreign policy on Israel during a webinar in June 2020 and months later at a prayer meeting where he declared that he would never apologise for his views, as well as a second complaint he faces for decrying Covid-19 vaccines as evil, we can reconcile with the situation by learning from his colleagues on how to disagree with him and still draw important lessons.
His colleagues, justices Froneman and Cameron, in a dissenting judgment, pointed out the nuances and difficulties of the “dilemma of difference” bypassed in Chief Justice Mogoeng’s assertion that there was only one proper way to achieve unity in diversity under the Constitution.
They pointed out how, in so doing, it excluded AfriForum’s members, the complainants in the matter, in many ways. They argued that the Constitution was broad and inclusive enough for our unity in diversity to survive, even by recognising and including those who differ radically and wrongly from the one espoused in the majority judgment, and for recognition that the historical past of white people also included much not to be ashamed of.
I encourage the Mogoengologists to also follow the example of his colleagues by acknowledging that the historical role of Justice Mogoeng, even in the age of the coronavirus pandemic, also included much not to be ashamed of.
Their example reminds us that in his famous “I am an African” speech in Parliament at the adoption of the Constitution, then deputy president Mbeki included these people and features of history: “I am an African… I am formed of the migrants who left Europe to find a new home on our native land. Whatever their own actions, they remain still, part of me.”
Chief Justice Mogoeng Mogoeng is an African, a Christian with a sharp legal mind. Whatever his own actions, he remainspart of our proud collective history.
Nyembezi is a human rights activist and policy analyst
Cape Times