Ten questions for Chief Justice Mogoeng Mogoeng

It took nine months, at least two postponements and plenty of patience, but this week Mail & Guardian editor Angela Quintal finally sat down with South Africa’s top judge in his office at the Constitutional Court, for a frank two-hour interview.

1. On factionalism and infighting in the National Prosecuting Authority and the SA Police Service, where no national director of public prosecutions (NDPP) or national police commissioner has served a full term.

I don’t know if there is any infighting in those bodies. The challenge for lawyers and especially judges is that you have to work with facts, not with media reports, not assumptions or suspicions. My concern rests here: as the chair of the national efficiency enhancement committee and its provincial counterparts, and because of the role that the police and the prosecution authority and other partners in the broader justice system play in enabling the courts to be more efficient and effective, I get concerned when the stability of the institution appears to be threatened in the absence of a leader, or trouble around a leader.

I would want to see an NDPP who would be appointed and stay there until he or she completes his or her term of office. I would like to see a South African national police commissioner who stays in office until he or she completes the term of office. Any other leader that contributes to the better performance of the court system, I would want to see them there secure and doing what the Constitution requires of them to do, continuously and independently.

2. On whether he agrees with Deputy Chief Justice Dikgang Moseneke that there should eventually be a review of the powers of the national executive, because too much power rests with the president.

I must confess I haven’t reflected on that seriously. My position has always been the following in relation to the possibility of a constitutional amendment: it has always been, and it continues to be, that the Constitution belongs to the people of South Africa. If at any given time over two-thirds of the representatives of the people of South Africa in Parliament say our constituencies require us to change the Constitution in this or the other way, then that is the legitimate process to be embarked upon.

I said so some years back, when voices seemed to be increasingly calling for a review of the way the Judicial Service Commission was constituted. The JSC is doing its work well, but if the people of South Africa want it changed, they are obviously at liberty, at any given time, to initiate a process that will culminate in the Constitution being changed, so the JSC can be differently constituted.

That sentiment applies with equal force to any other constitutional change that any South African might think is necessary.

You will recall that some political parties and some political commentators have advocated for a different kind of voting system or representation in Parliament. That is one of the many constitutional changes that could be considered, and South Africans are probably aware that they are at liberty at any given time to initiate a process that could culminate in that change.

3. On what he meant last month when he told the Association of Regional Magistrates of Southern Africa. “I was judge president when I was much younger and therefore I had the honour of working with a number of chief justices, and I saw how chief justices were treated by a number of ministers and other functionaries within the justice department. It pained me.”

You would find a chief justice having to meet a chief director to discuss matters of importance, not a minister, not a deputy, not a DG [director general], not a DDG [deputy director general], but a chief director. I thought that was less than respectful.

I choose not to go into much detail. It’s enough just to say that, even at that time, I had occasion to raise concerns to the chief justices: “But why is it that you are treated the way you are? You are our leaders and the way you are treated ought to contribute to the respectability of the judiciary as a whole. If it doesn’t look that you enjoy much respect, what will become of a high court judge?”

I think some of these things are better left unsaid, unless one is actually challenged. I will only say that there was a stage when there was obvious tension, and very serious tension, between the judiciary and the ministry [of justice]. It was an open secret – the judges, the chief justice were not treated that well. I remember a particular colloquium that we attended to look into the Superior Courts Bill and the Constitutional Amendment Bill. I was not [happy] and many were very unhappy about the manner in which the senior leadership of the judiciary and the broader judiciary were treated at the time. Happily, the situation has significantly improved. We have really seen a lot of change. It may not meet all our needs but there has since been a lot of change because we chose not to keep quiet when there was a need to speak.

4. On judges with alleged hotlines to the executive, including President Jacob Zuma and whether socialising with politicians will compromise the independence of the judiciary, as well as other potential threats.

I don’t have a hotline to the president. I don’t even have his number. Whenever there is a need for a meeting between him and I, officials will take care of those arrangements. The only person whose number I have is the justice minister because occasionally we may have to call each other or exchange SMSes. I discuss the business of the courts with the president, quite apart from exchanging some pleasantries or discussing some other state matter that might require my reflection on that. But a hotline, no.

The assumption is that, although judges are entitled to enjoy the right of freedom of association and to mingle with whoever they are compatible with, [and] although they are entitled to continue whatever friendships they might have [had] before they become judges, and before they assumed higher state responsibilities, the assumption is that they would manage those relationships in a way that does not give rise to an undue suspicion that they could be compromised.

Remember the incident of former United States vice-president Dick Cheney and one of the US Supreme Court judges [Antonin Scalia], going hunting together? Those sorts of things one assumes one would be very, very careful about. Speaking for myself, maybe it’s because I haven’t been able to make many friends in my life, but I can’t imagine myself now having regular meetings of a social nature with any politician, because of the perception issue.

Other potential threats are the inability of judges to help their friends, who are professional politicians, businesspeople, and even their friends in the media, to realise that there is a line that cannot be crossed relating to those that you choose to befriend, or socialise with occasionally – I assume in a manner that does not leave them with any doubt [about] whether you would be amenable to suggestions that could only be said in private or not. I think that is key. It’s a pity that you could never manage to know what people talk about in private, but any relationship that could potentially give rise to a ­perception that this friendship is rather too intimate for a judge to ever say no to this person poses a threat to judicial independence.

5. On whether his apparent lack of diplomacy when dealing with the executive has helped or hindered his cause to ensure the judiciary’s institutional independence.

I have no doubt that it has helped. Remember that it is hard to come by the kind of diplomacy that my predecessors have employed over the years and, if you compare the results, I think there is a vast difference between what was achieved over that period and now.

By the way, diplomacy is not always inappropriate. Most of the time diplomacy is the route to go. I tell officials in the office … that I consider myself to be a diplomat par excellence and, in most of my engagements with people who really want to listen and to engage, it is the diplomatic route that I pursue. It’s only when I’ve done all I could in private to achieve whatever I seek to achieve, and I am satisfied that nothing more can ever be achieved, that I pursue a route that some might mistakenly label as confrontational or militant.

I can give you an example of the two [justice] ministers that I have worked with, [Jeff] Radebe and [Michael] Masutha. At the very first meeting, I said to them that I believe the many problems that have yet to be resolved by the executive, as represented by the minister and the judiciary, ought to be discussed behind closed doors. We should make time to thrash out our points of differences and identify issues that we find difficult to agree on and agree on those that we can agree on, to avoid having to deal with issues in the public domain. It must never look like we pay less attention to serving the public and more to our individual approaches to issues. We have tried, but I don’t know whether we have done all that we should have done to talk the issues over behind closed doors.

6. On whether the South African judiciary will ever be institutionally independent despite progress under his watch, including establishing the office of the chief justice with its own budget of sorts.

I’m an optimist. Making the institutional independence of the judiciary a reality is a huge task and because South Africa is not used to an institutionally independent judiciary, it shocks everybody – especially the powers that be – to the core to suggest that the judiciary ought to be [institutionally] independent. So we are not naive. We never were. We reflected on how jurisdictions, for instance, have grappled with the institutional independence of the judiciary.

I am confident that there will come a time, and it will be in our lifetime, that the judiciary will be fully [institutionally] independent.

One of the things that we haven’t done as well as we should have is to help the nation appreciate what is in it for them to have in place an institutionally independent judiciary. I suspect that the public, including the media, has not paid as much interest to the institutional independence of the judiciary. [They would say:] “The system is functioning well anyway, so what is there to worry about, what are they talking about? It’s like a luxury.”

I believe there will come a stage when people appreciate what this entails and the danger of not having a fully independent judiciary, including the institutional independence, so that there can be no question regarding the ability of the judiciary to dispense justice irrespective of who is involved.

That is why Botswana is looking for something superior to what they have, notwithstanding the fact that what they have is already better than what we have. That is why Namibia has changed its Constitution and there is a Bill tabled already to facilitate the institutional independence of the judiciary. Many jurisdictions are moving forward. Given the important role that South Africa plays on the continent and in the global community, we would have hoped South Africa played that leading role of demonstrating to other jurisdictions just how important the institutional independence of the judiciary is, especially in view of our own constitutional arrangements.

7. On whether he and Justice Minister Mike Masutha had resolved their differences after a particularly scathing speech by the chief justice at Unisa last year.

There is nothing I said there that I haven’t said before, but we had a meeting at the heads of court forum [in Cape Town]. It was in April. It was a very productive meeting. Issues were raised as robustly as they needed to be and the meeting was very productive.

8. On former KwaZulu-Natal judge president Chiman Patel whose appointment was resisted by ANC leaders and some members of the legal profession who believed it was time the province was led by a black African. Patel opted for early retirement late last year and is suing the state for R3-million for malicious prosecution.

I don’t know whether politicians were interfering actively or otherwise.

This is my understanding of the situation: Judge Patel vied for the position of judge president with Judge [Isaac] Madondo. It was a very difficult process. After Judge President Patel’s appointment, I went to KwaZulu-Natal because I saw the potential for a misunderstanding that could spill over to the other judges and affect the stability of the division. I left with a clear sense that normality obtains in that division and that collegiality was at the level it ought to be for the division to function well.

Subsequent thereto, he [Madondo] had a contest with the now Judge President Achmat Jappie for the position of deputy judge president. He [Jappie] was appointed. Again I went there. I was assured not only by the judge president and deputy judge president, but also Madondo himself, “that you know there is no entitlement to any position”.

[They said:] “We are judges, very responsible members of society, highly placed to discharge a very sensitive service to the public. That we accept.”

Now, as for the situation around Judge President Patel, he contacted me. He said: “I would never try to compromise you, but this is what I am asking of you. I intend to retire.” [So he has always wanted to retire – for other reasons that have nothing to do with charges that were preferred against him.]

“All I’m asking for is that if you are able to cause whatever is pending against me to be expedited. If you are not able, I will be the last person that would want to compromise you.”

I wrote to the national director of public prosecutions and simply said, to the extent that is possible, please take your decision on the matter. Have it expeditiously finalised because of its far-reaching implications on the stability of the judiciary in KZN [KwaZulu-Natal]. If you are able to. That was it. The rest is history. Charges were withdrawn and he [Patel] is suing the state.

Could I have intervened? No. Only if I wanted to corrupt the system would I have intervened. Then I would have to tell the NDPP to tell the director of public prosecutions, at the provincial level, what to do and how to handle the case. You can’t. We don’t get involved in how the NDPP is to handle cases, even against judges. That’s why independence, even for them, is so important.

9. On when South Africa will have a single judiciary, given that the country’s magistrates still fall administratively under the department of justice.

The best person to answer that would be the minister of justice [Michael Masutha]. I don’t know what the problem is. When Minister [Jeff] Radebe was the minister of justice, under his watch, the acting secretary general of the office of the chief justice, Dr [Khotso] de Wee and the director general of the department of justice Mrs [Nonkululeko] Sindane, signed a memo of understanding – that was in 2012 – that the administrative functions of the magistracy in the interim would be transferred to the office of the chief justice. I don’t know what happened.

I would rather he [Masutha] answers for himself, but I’ve raised it. I’ve even referred to the National Development Plan that speaks to the need to expedite, or accelerate, the establishment of a core administrative system run or led by the judiciary.

In fact, the magistrates were accusing me of having left them out. They said: “How can you treat us like this?” I had to explain that the desire of my heart and the spirit of our Constitution, as I understand it, is to have a single judiciary.

Incidentally, I met a delegation from the judiciary of Botswana … They had heard me address the question of the institutional independence of the judiciary, so they seemed to have thought that we had more progress than they had. Now they said to me, in their discussions with the secretary general [in the office of the chief justice], they asked what has really changed – and also in their discussions with the minister [of justice] they said: “What has really changed?”

After explaining what has changed, they said: “Now we understand that you are almost at the level of where Botswana has always been administratively” … Basically Botswana is miles ahead of South Africa, because once the minister has released the budget to the judiciary, the minister no longer has anything to do with the officials and the budget. On the contrary, the minister is very much involved with the office of the chief justice because it’s a national department.

Botswana was disappointed that the lessons they thought they would draw from us were not available, except of course the document we shared with them that was submitted to the executive on 6 October 2013, outlining the institutional model that the judiciary of South Africa prefers.

It was produced under the chairmanship of former Chief Justices [Arthur] Chaskalson and [Pius] Langa, heading a committee appointed by former Chief Justice [Sandile] Ngcobo. It was submitted to me and the heads of court. We effected certain changes, including the inclusion of the magistracy in the model we envisaged.

10. On the divisions on the Swaziland bench and the matter of Chief Justice Michael Ramodibedi, who was holed up in his mansion last month, evading arrest, and who now faces possible impeachment.

During the course of 2014, I was asked by the executive of the Southern African Development Community Society of Lawyers, my colleagues at the Constitutional Court and another forum of lawyers, to intervene in Swaziland. A journalist who is a human rights activist [Bheki Makhubu] was reportedly arrested at the instance of the chief justice. We also had report of Judge [Thomas] Masuku, a judge of the high court of Swaziland, who was reportedly removed at the instance of the chief justice. I was asked to intervene.

I wrote to the chief justice. We subsequently met in Livingstone in Zambia, where we were attending the meeting of the Forum of Chief Justices of SADC and East Africa. I raised the issue. For the first time I met him there. In that forum I said: “Chief justice, you are here. There are these reports. I have actually been asked to intervene. Give us your version of the story. As a body, we need to have our voices heard on issues like these.”

He gave his explanation. I said: “I need to understand your explanation further. Let’s have a bilateral.” Before we left Livingstone, we had that discussion. Following from that we agreed to meet in Swaziland so that I could find out more.

We did meet, I think in November last year,  and I raised my concerns. I offered some advice, because the perception, or the reality, was that the chief justice contributed to the abuse of human rights in that country at the instance of that government.

Subsequently he wrote to me … to say that he and two other judges are supposed to be arrested and the supreme court roll has been interfered with by a junior official and without any process he has been suspended and his junior has been appointed to act as chief justice – and also about impeachment processes.

There has been some correspondence between him and I. He was informing me and asking for my intervention. I say no more than that. If there is any avenue that I thought the matter needed to be ventilated at, or any personality I thought could intervene meaningfully in Swaziland, I seized the opportunity to bring the situation to their attention.

As a matter of principle, at the SADC East Africa Forum of Chief Justices, we expressed our displeasure about the developments in Swaziland. And I brought this matter to the Conference of Constitutional Jurisdictions of Africa at a meeting we had in Libreville, Gabon. A statement was issued. A carefully crafted statement that does not seek to interfere unduly in the domestic affairs of another jurisdiction. We also raised the issue of Burundi and Sudan. To the extent that we are able at these forums, and as individual chief justices, we do make our voices heard. We have done that. We offer support. We air our properly managed or controlled criticism – considering that we are judicial officers – where we need to.

We have never been silent when a voice of reason was required. We have done what we could. I say no more than that. If there is any avenue that I thought the matter needed to be ventilated at, or any personality I thought could intervene meaningfully in Swaziland, I seized the opportunity to bring the situation to their attention.