Throughout his presidency, President Jacob Zuma was on trial. As a curtain raiser for an uneasy presidency, charges of fraud, corruption, racketeering and money laundering were to swirl around him during his tenure. Thanks to the decision by the then Acting National Director of Public Prosecution Advocate Mokotedi Mpshe to drop the charges. By that time media had invested every resource baying for his blood. All that was required was for the wheels of justice to move faster to finalize a case long concluded in the court of public opinion.
It didn’t matter that three judges, Vuka Tshabalala, Herbert Msimang and Nicholson had raised questions about the conduct of the prosecution. Judge Msimang characterized the case against Zuma as “limping from one disaster to another” and decided that it should be scrapped. This observation is by no means a pronouncement of guilt or otherwise. Effectively the National Prosecution Authority failed to discharge its constitutional mandate to conduct its affairs without prejudice or favour. In other jurisdictions, this would have put paid to case.
A chronology of the above cases indicates that the NPA was already compromised long before Zuma assumed the presidency. As a prologue and a taste of things to come, a motion of no confidence was tabled during Zuma’s first appearance in parliament. This was followed by seven others, all of them easily defeated. These motions became useful platforms to insult Zuma.
A careful reading of the public persecution and prosecution of Zuma also revealed the ugly side of South Africa’s democracy. Zuma may have been on trial, but society represented by the media, civil society and judiciary was also on trial. Constitutional principles and check and balances that we swear by were dispensed with in the frenzy to get rid of Zuma. The obsession with Zuma stands in glaring contrast with how some in the judiciary and the media have treated reported malfeasance of the banks, construction companies, bread cartels, rating agencies. The cost of these malfeasance runs into billions of rands but this has not led to strident calls for prosecution.
But nothing exposed the hypocrisy of the so-called guardians of our democracy than the drama that accompanied the appointment of Chief Justice Mogoeng Mogoeng. Mogoeng Mogoeng was presented as a skunk of the judiciary. An assortment of nongovernmental organizations including the Sonke Gender Justice Network (“Sonke”), the Lesbian and Gay Equality Project (“the Equality Project”) and the Treatment Action Campaign (TAC), National Democratic Lawyers, and the Congress of South African Trade Unions opposed his appointment. Some of these organizations were to later reject calls for Mogoeng’s impeachment.
Not to be outdone, some academics joined the fray. Richard Calland of UCT went as far as to pen an opinion piece titled “Chief Justice who doesn’t write appointed by a president who doesn’t read”. Cartoonists had a field day with one labelling him Moegoe Moegoe. The Eastern Cape Bar Council, the Johannesburg Bar Council and the Cape Bar Council led the charge arguing that Mogoeng lacked the “requisite experience for appointment to the position of Chief Justice”.
However, facts painted a different picture. Prior to his appointment Justice Mogoeng had served as Judge President of the North West, as a judge of the Labour Appeal Court and finally a judge of the Constitutional Court. Regarding experience Mogoeng pointed out that there were the “only two judges on the Constitutional Court who have had a longer period of judicial service than me are Judges Froneman and Cameron. Apart from this I have been a Judge President for seven years, whereas none of my other colleagues at the Constitutional Court has been permanently appointed to lead a Division, small or big.”
All these facts were inconvenient truths for Mogoeng’s detractors. He was guilty of the crime of association. He was guilty of being Zuma’s appointee. The most revealing charge against Mogoeng relates to a matter of conflict of interest. Mogoeng was criticized for having failed to recuse himself when his wife appeared before him and other judges in an appeal case.
But as Mogoeng pointed out, his detractors found nothing amiss about Advocate Matthew Chaskalson appearing “32 times before his father (who at the time was Chief Justice of the Concourt). Harms DP’s son appeared before him at least twice in the SCA, Wim Trengove SC appeared at least once before his father when his father was an Acting Judge of the Constitutional Court, and my colleague Justice Yacoob’s daughter appeared in the Constitutional Court at least twice while her father was a member of the panel. Judges have also sat in cases involving their colleagues.”
Mogoeng argued further that if concern is reasonably raised of possible bias regarding Judge-spouse relations “the same must apply to a son or a daughter under similar circumstances.” In his defense Mogoeng pointed out that the “decision to sit only on appeals was taken after extensive discussions within my Division and I followed that decision. On reflection and in the light of the more recent decisions mentioned above, it may well be that I should not have sat in the case.”
The self-proclaimed guarantors of our democracy in the media and civil society had been silent when the above egregious forms of conflict of interests were being routinely perpetrated. Of particular relevance is the fact that the Pretoria High Court had prevented President Zuma from appointing a judge to preside over a commission of inquiry citing conflict of interest. Yet the very same judges have remained silent when their own colleagues can arguably be accused of the same. These judges are effectively saying that they are immune to biases that afflict the general public. But nothing could be further from the truth.
Moving forward, the renewal that is routinely bandied around must begin with societal self-introspection. This includes razor sharp critique of the media, the judiciary and the so-called civil society.
Sipho Seepe is an academic and a political analyst.