The chief justice chosen by God to save South African democracy: Explaining Mogoeng Mogoeng’s unexpectedly successful tenure

Abstract At the time of his appointment as South Africa’s chief justice in 2011, serious concerns were expressed about Mogoeng Mogoeng’s fitness for office. He was a religious conservative, it was said, with a questionable record as a lower-court judge in matters involving sexual assault and violence against women. He was also the Constitutional Court’s most junior justice, whom many thought the then President Jacob Zuma would treat as a political lackey. As things turned out, Mogoeng’s tenure was relatively successful. While his conservative religious views sometimes interfered with the performance of the institutional dimension of his role, his decisions in politically sensitive cases were forceful and independent. This article examines three possible explanations for this outcome, concluding that the accumulated authority of the office of the chief justice gave Mogoeng the freedom to act on his religiously and politically motivated opposition to corruption. In two cases in which his religious views might have conflicted with the 1996 South African Constitution’s progressive values, the Constitutional Court’s institutionalized tradition of reasoned decision-making constrained his ability to give expression to his personal values. Chief justices in fragile democracies, this finding suggests, may find support for independent decision-making in unexpected places, with the role that judicial ideology plays, in particular, being quite different to its role in jurisdictions with a more open-textured Constitution.