By Pinky Khoabane
Since the judgment of the Constitutional Court on Nkandla, Chief Justice Mogoeng Mogoeng has become the poster boy for the face of constitutionality. His speech in April last year, on ethical leadership was met with a rapturous reception and a standing ovation even before he began his presentation. But this view of him has not always been the case.
Yesterday he was named 2017 South African of the Year by a poll conducted by News24 and Braai Day Initiative as part of Heritage Day celebrations. You almost want to call for the bucket, don’t you? These are the same people who together with the white monopoly controlled and owned media waged a campaign to vilify him long before he took office six years ago. He was accused of being a President Jacob Zuma lackey, overly religious and bad for the judiciary, anti-gay and pro-rapists. One Eusebius McKaiser even thought he was only good for his (McKaiser) bed.
What would have been the reaction from liberals to the now celebrated Mogoeng if he had mentioned religion and God in his much praised leadership speech, for example, an issue for which he received the most brutal criticism from those who laud him today.
Speaking at the Serious Social Investing Conference last year, he spoke on South Africa’s need for ethical and credible leaders who would lead by example. He said there was no room for corruption and corporate influence in ethical leadership.
“Allowing funding of political campaigns to influence how you govern your people, allowing funding of political campaigns by the business community dictating whether you are going to shirk key responsibilities or give practical application to the constitutional aspirations of your people is the corruption that comes into being and is facilitated by the absence of ethical leadership,” he said.
“Ethical leadership is not an option but a national imperative because when you’re a leader, you have the authority to influence those you lead.”
He said those who followed unethical leaders had the boldness to also be corrupt because they know the leader could not raise a finger.
The chief justice said the private sector was guilty of corruption and the media was quick to forget this corruption. He urged South Africans to be even-handed in the way they dealt with problems.
Double standards and selective morality are issues the chief justice would have had to have dealt with on a personal level. The media including sections of our community have not only vilified him but ran a long-standing misrepresentation of his ruling in a child rape case in which the narrative in the media has been that he reduced the sentence of a child rapist.
The campaign to discredit Mogoeng started in earnest long before he was appointed in September 2011.
An unknown, the ordained pastor from the North West met the wrath of the public including the DA, women’s groupings and Cosatu.
He was seen as junior to judges Dikgang Moseneke and Edwin Cameron. His detractors said his judgments and experience in constitutional matters were fewer than those of the other judges.
His independence and commitment to the Constitution came under scrutiny.
But it was perhaps in the media that he was most crucified.
In a column by Verashni Pillay in the Mail & Guardian in August 2011, the editor recently sacked from Huffington Post SA, asked if Mogoeng’s appointment was not the worst. “Jacob Zuma’s decision to nominate Justice Mogoeng Mogoeng as the head of the South African judiciary is one of the most questionable decisions he has made as president.
“Of all the mooted candidates, Zuma seemed to choose the one with the least experience and the most questions hanging over his head,” she wrote.
Law expert Pierre de Vos in the same piece is quoted as saying: ““It is as if President Zuma, acting like a spoilt child who could not get his way with the extension of the term of office of the outgoing chief justice because he relied on a clearly unconstitutional provision to do so, is now trying to get back at critics by indicating a wish to appoint one of the less suitable candidates to that post.” https://mg.co.za/article/2011-08-17-zumas-worst-decision
A speech he made at Stellenbosh University almost three years ago was slammed for confirming the jitters that “the public” had with his appointment; that he would inject religion into our Constitution.
He presented a speech titled Law and Religion in Africa: The Quest for the common good in pluralistic societies.
Writing in Daily Maverick, Richard Poplak, called him a “hyper conservative, Zuma yes-man with a Jesus Jones”. He said Mogoeng was a “furiously rightist judge who displayed a remarkable understanding of sexual miscreants, especially those who tampered with children”.
He accused him of tending to “favour the power of the state over the power of the state’s handbrake, that is the Constitution which he was sworn to uphold”.
Calling him “Zuma’s ultimate yes-man, who was simply espousing the views his appointees knew he would espouse, a Jesus first approach to governance’’ Poplak questioned his commitment to the Constitution.
“We should not forget that Mogoeng Mogoeng cut his teeth as a justice during apartheid and his intellectual home is stuffed with the Calvinistic furniture that belonged to its old inhabitants,” he wrote.
“In one of his more famous and thoroughly representative rulings, he reduced the sentence of a child rapist because, one can safely assume that (the accused) must have been mindful of (the victim’s) tender age and was thus so careful as not to injure her private parts, except accidentally, when he penetrated her.”
In an article in the Mail & Guardian titled Give Truth a Sporting Chance, Kate Ferreira responded to Poplak’s article and she exposed the misrepresentation of Mogoeng’s ruling in the child rape case.
A closer look at the judgment by Mogoeng reveals the opposite of what Poplak and others have written of the ruling in as far as the sentence is concerned and there have been many misrepresentation of the fact.
“Mogoeng’s judgement uses that exact paragraph, it’s true,” Ferreira said. “But, contrary to the article (by Poplak), the reduction of sentence just didn’t happen. And read in context, what emerges is a condemnation, from Mogoeng, of the examining doctor’s failures in performing the post-assault examination and the state’s muddled case. This isn’t just taken out of context. A new outcome, a new meaning, has been applied,” she said.
Ferreira goes on to investigate the usage of words like “tender” which Mogoeng used in the judgment and which had caused the public outcry ahead of his appointment. Here she concludes that contrary to the much held narrative, Mogoeng used the word to denote “sneaky” and not “sweet, as if to get away with it”.
The chief justice’s rulings and strong religious beliefs which, had at one time created much discomfort among our chattering classes, are all but forgotten.
Like most black people on appointment to leadership positions, Mogoeng has had to endure almost four years of mistrust, abuse and a need to prove he is efficient.