Chief justice Mogoeng Mogoeng. Picture: SANDILE NDLOVU/SOWETAN
Chief justice Mogoeng Mogoeng. Picture: SANDILE NDLOVU/SOWETAN

Chief justice Mogoeng Mogoeng says the judiciary will never be captured.

He made these remarks during ENCA’s In Conversation with Chief Justice  in which he reflected on the state of the judiciary as the country entered  its 25th anniversary of the post-apartheid dispensation.

He was adamant that of the three pillars of state (executive, legislative and the judiciary), the judiciary was least corrupt and incapable of being captured by corrupt businesses or politicians.

“I think it would take a very weak and corrupt judge or magistrate to be captured,” he said.

Judges receive full salaries and increases even after they retire up until their deaths. He said the state “went out of its way” to ensure that judges were very well paid.

“So what possible reasons would any principled person be so weakened by a desire for more to the point of compromising the principles that are so fundamental to the sustenance of SA as a constitutional democracy? So there’s a very, very slim possibility of that happening.

“The judiciary as a collective has not been captured but I cannot vouch for every individual. But I can confidently say the overwhelming majority of the judges are incapable of being captured,” he said.

Mogoeng received a cold welcome when former president Jacob Zuma appointed him as the chief justice but many former critics have changed their attitude towards him as he has upheld the declaration made during his elevation that he will not “betray the trust” of the nation.

During the interview he said that though the judiciary has been a shining light in defence of the country's liberties and the constitution, the vast majority of poor South Africans still did not have equal access to justice and therefore their rights had been largely trampled upon. He said this state of affairs needed to be remedied.

“Most South Africans are unemployed or have limited resources and cannot afford to litigate. If litigation is inaccessible even to those who are employed, then we have an access-to-justice challenge because you cannot effectively prosecute your case without an intervention of a legal representative.”

An appeal had been made to the bar of advocates to make available senior lawyers to represent deserving people with no means in order to allow them to face off lawyers appointed by powerful individuals and corporations.

Mogoeng said in some cases people who had transport and other challenges failed to attend cases and ended up being penalised unfairly. Part of the solution for equal access to justice was the strengthening of the traditional court system, which has come under fire from civil rights activists, particularly for treating women as minors and failing to accord them full human rights, he said.

“There is an inexplicable stiff resistance to restructure the traditional court system that would cause them to be consistent with the constitution in their operations. I don’t understand why it was possible to restructure the colonial court system that we used to have, which was responsible for many people dying and being discriminated (against), yet we have some reason to believe that the African court system and its institutions are so horrible that all they are about is oppression of women and nothing good can come out of them.

“I think a properly structured traditional court system that is made constitutionally compliant would make justice credible (and) accessible to rural communities because the laws and procedures that are used there are the laws and procedures that they know and don’t have to go to school to understand them,” he said, adding that if these courts discriminate against women, this must be remedied so that women feel safe and secure in litigating in these courts.

“The constitution of SA, which is the supreme law, must breathe life into that (traditional) court system and nothing in that system that is not aligned to the constitution must be allowed to live on,” he said.

There were few community justice centres that have been established in the country which are staffed by highly trained individuals to make access to justice for communities, he said.

Though the office of the chief justice operated like any national department, with its own budget, Mogoeng believes that government officials should have nothing whatsoever to do with the operational side of the justice system.

“I think we need a fully fledged institutional independence. I have been raising this issue for a long time with the executive and we don’t agree. But the bottom line is that we are the only arm of state that is not fully independent. You need to have in place a system that does not allow the executive to have any role  in the running of the issues that are intimate to the court operations.

“You don’t need a system where a court is established there and a court is established there but the judiciary did not have any role to play in the conceptualisation in that kind of a court. (Right now) the judiciary has its own budget, but that falls under the ministry of justice, that is not full independence because from time to time the minister of justice gets involved. The minister of justice or any minister, even the president, must not get involved in the running of the administration of the judiciary,” he said.

Mogoeng said he enjoys a cordial relationship with justice  minister Michael Masutha.

Correction: May 7 2019

An earlier version of this story incorrectly reported Chief Justice as saying the executive should not have a role in appointing judges and court officials. The Chief Justice actually said that the executive should have no role in the running of issues around court operations and must not be involved in the administrative affairs of the judiciary. 

makhayec@businesslive.co.za