EXCLUSIVE: There’s more to me than Nkandla, says Mogoeng

His father was a miner, his mother worked on farms before becoming a domestic worker and their son, Chief Justice Mogoeng Thomas Reetsang Mogoeng, hoped one day people would realise the Constitution was the supreme law which ruled us all – even judges.

These days, the chief justice hopes people will see there is more to his accomplishments than the Nkandla judgments.

“Most of the time the focus is on the negative or on my Nkandla judgments in isolation, as if they were the only thing I’ve ever done,” said a jovial Mogoeng as he settled himself into his chair.

Yesterday, people buzzed around South Africa’s fourth chief justice as he walked purposefully to his office, with muted but animated conversations taking place around time management and his next appointment, as he left a meeting of the Judicial Services Commission (JSC) for his interview with The Citizen.

September 1 was the eighth anniversary of Mogoeng’s appointment to the bench by ousted president Jacob Zuma, and while the Chief Justice was probably aware of how seminal all the Nkandla/Zuma judgments were, there were more current, pressing matters at hand.

“It’s been an exciting ride, and I only know of one person who has said I’m getting myself involved in politics. But it’s fair to assume there are a number of people who believe I am getting myself involved in politics,” Mogoeng said of the latest crack at him.

“Here’s the question: What do they mean by ‘getting myself involved in politics’? There is hardly anything I say in the public domain that I’m not allowed to say in a judgment, and most of the things I say in public addresses are things we have already articulated in our judgments.

“So, is the notion people have of a judge or a chief justice that you are not allowed to address meetings, or that there are certain acceptable topics? And if so, which are those topics? I’ve come across a statement which says judges must speak through their judgments only. So is it wrong of me to have this interview with you? Because it’s not a judgment?”

Mogoeng threw a Constitutional gauntlet down in front of his critics.

“What is it that would not possibly come before court? You may be called upon to interpret the Constitution, or any law, or all those sins of people coming before court. So is there anything a judge is not supposed to deliver a lecture on or to address the public on? I would be very interested to know, what is it that is ‘political’ and which I’m not supposed to involve myself in,” Mogoeng said.

“Our Constitution is a political animal, every aspect of it – from the preamble to the foundational values, all the way through – so you would have to split hairs, to try and sift through what is permissible for a judge to address in the public domain or even in a judgment, and what is impermissible for a judge to do.”

He noted he had met people who knew very little about the judiciary who “unfortunately” sought to assume the responsibility of mentors for judges.

“‘No, no, no it’s not done this way!’ Really, what experience have you had of the judiciary to be speaking with authority to judges about the do’s and don’ts of addressing public issues?” asked Mogoeng.

“From where I stand, it’s always about justice. Anything that touches on justice is my responsibility to address when called upon to do so, because we don’t invite ourselves, it is the public which invites us because they think we have something to contribute. When called upon to address any matter which touches upon justice I’ll always address it, regardless of how others might view this.”

Moving on to the “spanking judgment”, Mogoeng laughed at a suggestion on social media that parents should now bring errant children to the Constitutional Court for discipline.

Following the judgment, the exploring of a different approach to parenting would require a policy decision, Mogoeng said.

“That’s the constitutional responsibility of the executive of the State, not the judiciary. Our responsibility as the judiciary, even in relation to retaining or abolishing corporal punishment in a home setting, is simply to look at the Constitution, to look at the common law, to look at the expert evidence available and any other evidential material that could help us arrive at a decision,” Mogoeng emphasised.

“So what did we do? Anybody who has read the judgment would realise we are very alive and sensitive to cultural and religious dynamics at play. We were not condemnatory of any position people have in relation to corporal punishment, our position was simply this: This is what the Constitution, the supreme law of the land, says, and this is the expert evidence before us. Now, when you are confronted by that situation, your responsibility as a judge is to apply the law, is to apply the Constitution.”

Mogoeng said if there was an overwhelming majority who wanted corporal punishment to return, they should approach Parliament.

“Approach the Legislature to have them amend the Constitution so there is an exclusion in relation to corporal punishment, so it provides for moderate and reasonable punishment in a home setting. It’s not open to Constitutional Court judges to ignore clear constitutional provisions” when it comes to judgments involving issues such as corporal punishment, he said.

“It’s not a question of whether we had a choice of retaining or abolishing, no, we were forced by the Constitution to go there.”

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