Chief Justice Mogoeng Mogoeng
“You know, I draw strength from my Christian principles. I believe in the leadership that focuses more on servanthood than on lording it over people.”
Chief Justice Mogoeng Mogoeng has been Chief Justice of the Constitutional Court of South Africa since September 2011. His longstanding commitment to fairness is evident in his efforts as a student activist during the apartheid years, his determination to become a legal practitioner, and his subsequent career appointments.
Early Life and Career
Mogoeng Thomas Reetsang Mogoeng was born in Goo-Mokgatlha (Koffiekraal), a small village in the North West province of South Africa. His father was a miner and his mother a domestic worker. Mogoeng became politically active at high school, from which he was briefly suspended for organising a memorial to the victims of the Soweto uprising.
The suffering that I’ve had to endure as a young boy growing up under apartheid, and the brutality perpetrated by our compatriots in the neighbouring farms and small towns, drove me to want to make something out of my life. My father also kept on saying to me, ‘my son, if you want to make it in life, just make sure that you pursue education with everything within you. I am poor but I’ve made it my business to make some savings so that anyone of my children who wants to make it in life can pursue their studies to the highest possible level so that they don’t suffer as their mother and I have had to suffer.’
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
He obtained his B Juris at the University of Zululand in 1983, and his LLB at the University of Natal in 1985. After completing his LLB, Mogoeng worked as an interpreter until he was appointed as a prosecutor at the High Court in Mafikeng in 1986. During his employment there, Mogoeng worked towards his LLM through the University of South Africa, which he received in 1989. He left the High Court in 1990 to complete his pupillage at the Johannesburg Bar, and practiced as an advocate at the Mafikeng Bar from 1992 until his elevation to the bench in 1997.
The humiliation that I saw my grandfather, who was my mentor, subjected to in my presence; the many detentions without trial that I got to know about while I was at high school; my dismissal and the dismissal of my fellow students at high school, which left us with no recourse to the courts through which to challenge the decision because we did not have the resources to pay a lawyer to represent us. The fact that Nelson Mandela and Oliver Tambo were lawyers and my reading of ZK Matthews’ book, all inspired me to want to have something to do with changing the legal system of South Africa.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
In 1994 Mogoeng served as part of the legal advisory team of the Independent Electoral Commission in the North West.
We were able to bring people together before they could even go to a formalised court system to have their complaints dealt with there. I think part of what helped us was to have regular briefing sessions where all political parties would be in attendance and we would apprise them of the rules of the game, the do’s and don’ts and plead with them that for the sake of the democracy that we have waited so long for, they would do well to make sure that they abide by the rules.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
From 1997 to 2000 he was a judge of the North West High Court, after which he was appointed as a judge of the Labour Appeal Court. In 2002 Mogoeng was appointed Judge President of the North West High Court. He also served on the five-member panel led by Chief Justice Pius Langa to investigate discrimination, race, and gender in the judiciary.
One of the things that concerned me the most about South Africa is that we come from a deeply divided past. And I think healing our divisions is not something that we can leave to chance. There has got to be a structure in place dedicated to reconciling South Africans. And because that had not been done, it was not surprising that here and there incidents of gender and racial discrimination emerged.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
In 2009 Mogoeng joined the Council of the South African Judicial Education Institute to represent the Judge Presidents. In July 2011 he led the team that organised the Access to Justice Conference. In April 2017 he was elected President of the Conference of Constitutional Jurisdictions in Africa, and in August 2017 he was appointed as Chancellor of the University of KwaZulu-Natal.
It is therefore absolutely necessary that we never stop talking about colonialism and its sister neo-colonialism, and apartheid, because then, you leave those who have always believed in this crime against humanity to be comfortable and to shape it in a sophisticated way, in such a way that it doesn’t quite look like discrimination, when in fact, it is.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
Appointment to the Constitutional Court
Mogoeng was appointed as a Justice of the Constitutional Court in October 2009. In September 2011 he became the fourth Chief Justice of the Constitutional Court, and to date continues to serve in this capacity.
To breathe life into the African dream that is inspired by the desire to break free from centuries of economic oppression, and to recapture the lost glory of Africa, the judiciary in Africa must be more alive to the enormous responsibilities it bears on its shoulders to contribute to the renaissance of Africa.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
As one of the Constitutional Court’s most junior justices, Mogoeng reflects on the criticism and media hostility he faced at the time of his appointment as Chief Justice:
I looked forward to discharging my mandate to the best of my ability. So when all these things happened, I already had the in-built capacity to withstand the severest of criticism. I wasn’t affected at all. Anybody who observed my interview would have realised that after five weeks of intense criticism from all angles, in circumstances where you would expect a person to crumble, I was rock solid. I was not shaken.
That’s me.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
Mogoeng also reflects on the achievements of the Constitutional Court:
The jurisprudence generally speaks to the aspirations of all South Africans across the colour bar. The fair-mindedness of the Justices of the Court from the beginning has also gone a long way towards contributing to the stability that was so desperately needed for sustaining a democratic South Africa that comes from a troubled past. I think the manner as well in which the Constitutional Court Judges conducted themselves, handled the cases, interacted with society, explained their judgments at conferences, went a long way towards satisfying the nation that it serves, that this is a vessel that has executed its mandate as well as it was expected to.
Mogoeng Mogoeng
Chief Justice of the Constitutional Court
Judgments of Interest
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (2019)
The Constitutional Court had to decide whether reasonable and moderate chastisement of children by their parents was constitutional. The High Court had declared the law that defends moderate and reasonable chastisement unconstitutional. It held that the law violated the child’s right not to be discriminated against based on age; to equal protection of the law; dignity; freedom from all forms of violence and degradation; and right to bodily and psychological integrity.
The Constitutional Court, in a judgment penned by Chief Justice Mogoeng, confirmed the High Court’s decision emphasising the importance of human dignity in section 10 of the Constitution and freedom and security of the person as embodied by section 12 of the Constitution.
We have a painful and shameful history of widespread and institutionalised violence. And section 12 exists to help reduce and ultimately eradicate that widespread challenge. ‘All forms’ is so all-encompassing that its reach or purpose seems to leave no form of violence or application of force to the body of another person out of the equation. To drive the point home quite conclusively, the Constitution extends the prohibition to violence from ‘either public or private sources’.
Chief Justice Mogoeng Mogoeng
the Freedom of Religion South Africa judgment, 18 September 2019
Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and others (2016)
In 2014 the Public Protector released a report entitled ‘Secure in Comfort’, which reported on the President’s use of public funds for non-security upgrades to his private residence, known as the Nkandla homestead. The report concluded that the President unduly benefited from the use of State funds for improvements to his private residence. The Public Protector recommended remedial action be taken by the President and that the National Assembly hold the President accountable, in line with its constitutional obligations. The Economic Freedom Fighters (EFF) and the Democratic Alliance (DA) instituted legal action relating to the President’s failure to implement the Public Protector’s recommendations well after the release of the report and the National Assembly’s failure to hold the President accountable in light of the Public Protector’s report.
In a seminal judgment written by Chief Justice Mogoeng, the Constitutional Court unanimously confirmed the Public Protector’s finding that the President had violated his constitutional obligations by failing to take action to stop the state-funded upgrades of his private residence. The Court found that the President’s actions amounted to a breach of his duty in section 83(b) of the Constitution to ‘uphold, defend and respect the Constitution as the supreme law of the Republic’. In failing to comply with the Public Protector’s recommendations, the Court held that the President flouted his constitutional duty in section 181(3) to ‘assist and protect’ the Public Protector and ‘to ensure the independence, impartiality, dignity and effectiveness’ of the Public Protector. The Court also held that the National Assembly’s failure to hold the president accountable amounted to a breach of its constitutional obligations.
The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly. The power to take remedial action that is so inconsequential that anybody, against whom it is taken, is free to ignore or second guess, is irreconcilable with the need for an independent, impartial and dignified Public Protector and the possibility to effectively strengthen our constitutional democracy.
Chief Justice Mogoeng Mogoeng
the Nkandla judgment, 31 March 2016
Family and Personal Life
Mogoeng is married to Mmaphefo and they have two daughters, Johanna and Oteng, and a son, Magaetsha.
In the words of others
A man of serious purpose, deeply committed to the Constitution. His headship has been strong-willed, insistent, clear-sighted, uncompromising, redoubtable in energy, determination, principled commitment and insistent in the clarity and purity of his voice. He has advocated for truthful leadership against corruption, against resemblance and lies, and for constitutional accountability.
Edwin Cameron
former Justice of the Constitutional Court
It is important to point out that when hiring me the Chief Justice deliberately chose me for the many ways in which we differed vis a vis our background and ideology. Intentionally ensuring diversity of thought within one’s office is a vital leadership technique for which I have the deepest respect. Not only does it anticipate constructive divergence but also welcomes the lateral thinking and creativity such differences manifest.
Alex Fitzgerald
former law clerk to Chief Justice Mogoeng
While the Office of the Chief Justice is in and of itself intimidating, Chief Justice Mogoeng Mogoneg himself is incredibly warm and inviting. He takes his clerks in as his own children and encourages us to be critical in our thinking and to speak our minds freely, particularly when we disagree with him. Clerking for the Chief Justice has been one of the most empowering experiences of my life. He’s taught, encouraged and mentored this young black female into being confident and understanding that this voice is important and that it matters. So when the Chief Justice speaks about leadership that is selfless, humble and empowering, it is not just words, he lives it everyday. I leave his Chamber with a greater knowledge of the law and more importantly a mandate to be ethical in everything that I do.
Mudzuli Rakhivhane
law clerk to Justice Mogoeng
