The Chief Justice Mogoeng Mogoeng is open to nominating a judge to preside over the state capture investigation. He spoke at the Cape Town Press Club on Wednesday evening.
The Chief Justice said it would be inappropriate to answer questions about state capture. He was asked if the national executive was “captured” – and replied that as he was a judge and he assessed whatever was before him in evidence – not from emails or hearsay. Thus it would be inappropriate for him to comment on a range of questions about whether the cabinet was captured.
However, asked if he was willing to nominate a judge to head such a commission – he said he was ready. The Public Protector Thuli Madonsela in the State Capture report she issued before she left office at the end of 2016, specified that the Chief Justice should nominate the judge for the inquiry – and not President Jacob Zuma.
There is at present a court procedure on-the-go to determine whether the president should, or should not, nominate this judge. The president has the power to appoint judicial commissioners in terms of the law.
“I have not been investigated (myself) by the public protector,” said the Chief Justice, implying that he was not implicated in state capture. “Approach me for assistance, I will consider the advance.”
Asked if the national prosecutions authority – led by Shaun Abrahams – was compromised, he said that he had learnt from able judges like Chaskalson and Langa that one should always find solutions to problems. “That experience has taught me one stands to gain more if (you find) a constructive way to engage with those who don’t seem to be handling things as well as you would prefer them (to handle matters).”
Thus a committee of the NPA and the judiciary had been set up to consider “issues of concern” such as any “shortcomings” in the prosecutions processes. This committee considers what could be done “to deal with these challenges”.
He did not comment on whether Shaun Abrahams was “a sheep”, as one questioner put it. Abrahams has been widely criticised for stalling on the prosecution of the president and his Gupta cronies, but the Chief Justice did not dwell on this matter. He also did not refer to the Guptas or the Zumas at all during his address.
Mogoeng did warn political parties not to use the courts as a battleground for resolving “family matters”. If these parties “push our courts to the point where it becomes a raw political player, we are exposing it to criticism that could have been avoided.
While the chief justice was not specific, internal disputes in the ruling party in KwaZulu Natal, North-West, the Northern Cape, Western Cape and Eastern Cape have been brought to court. He said: “We owe it to this nation. We owe it to this democracy… to make sure that we are very careful about the responsibilities we impose on our courts.”