Justice Mogoeng Mogoeng. Picture: ANTONIO MUCHAVE/SOWETAN
Justice Mogoeng Mogoeng. Picture: ANTONIO MUCHAVE/SOWETAN

In August 2011, former president Jacob Zuma released a 700-word statement, detailing the reasons he had chosen Mogoeng Mogoeng as chief justice. It was an unprecedented move, but a necessary one — appointing the head of the judiciary is no simple feat and Zuma’s appointment of Mogoeng was hardly welcomed.

For a start, there were questions over his conservative approach on issues of gender, as well as questions over his experience — or rather, his lack of it — on constitutional matters.

But Mogoeng, largely, proved his detractors wrong. His legacy is relatively solid, and where it is marred, it is because of his comments on public platforms, not his judgments on the bench.

A high point for Mogoeng was the Constitutional Court judgment on Nkandla in 2016, which arguably led to Zuma losing his grip on the ANC. The ruling held that the powers of the public protector were binding and that Zuma needed to repay some of the R246m spent on upgrading his private residence at Nkandla.

It is a judgment that will forever stand as setting the standard for the conduct of a sitting president. Mogoeng’s words were striking: "[A president] is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project."

This week Mogoeng’s office announced that he had taken "long leave" due to him for some time, which will run until his term ends in September. Effectively, Mogoeng won’t return to his office.

In the meantime, President Cyril Ramaphosa has appointed justice Sisi Khampepe to act in the post until a permanent appointment is made.

Last week, there was a serious attempt by the ANC’s fact-lite radical economic transformation (RET) wing and its twitter-bots to cast Mogoeng’s leave as an ominous sign that the judiciary had been captured.

On the other side of the aisle, those opposing the RET group had also read much into Mogoeng’s bid for "long leave", speculating that perhaps he had no stomach to preside over a case against Zuma, or that he was preparing for a more political role, given his perceived proximity to the EFF.

But there is no evidence that Mogoeng’s leave is the result of conniving or intrigue.

His decade-long tenure had been intense, particularly as the judiciary proved to be the last line of defence against a compromised ANC, whose president and administration had gone rogue in a spectacular way.

Now Ramaphosa must select a replacement, after 10 years of strained relations between the executive and the judiciary, in which judges were not only called on to moderate intra-party battles as Zuma’s grip on the ANC tightened, but had to do this even amid lacerating attacks from the ruling party, which accused them of overreaching.

Calls have been made for Ramaphosa to appoint a female to the post. The excellent website Judges Matter, which monitors the appointment of judges, has come up with a list of female contenders — including the Supreme Court of Appeal’s president Mahube Molemela, and Constitutional Court justices Nonkosi Mhlantla and Leona Theron.

It also breaks down the qualities required: the person should be an influential leader, a strong administrator, a diplomat, a skilled communicator and policy maker, an intellectual leader who is independently minded with the highest degree of integrity. It is a tall order for Ramaphosa to fill.

But given the current state of the country, the brittle economy, and the attacks on the judiciary from influential politicians, it’s an appointment that may just be the one on which Ramaphosa’s entire presidency will rise or fall.


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