Mogoeng's nomination was extremely controversial, drawing strong criticism from across the political spectrum, including from within President Zuma's own Tripartite Alliance, as well as from the press, local and international civic organizations, legal academics and bar councils.

[4][9] Besides his general lack of reported judgments, critics noted that he had failed to recuse himself in S v Dube,[10] a case where his wife had appeared as the state prosecutor.

[7][8] In addition, Mogoeng was nominated ahead of the expected appointee, Dikgang Moseneke, who had served the Constitutional Court for nine years and as Deputy Chief Justice for six.

[23] Finally, in State v Mathebe, Mogoeng reduced the sentence, from two years' imprisonment to a fine of R4,000, of a man who had tied his girlfriend to his car and dragged her 50 meters along a dirt road.

Moseneke, as the country's Acting Chief Justice pending a permanent appointment, chaired the Judicial Service Commission (JSC) when it interviewed Mogoeng to determine his suitability.

[12] But he has been defended by highly respected colleagues, like Kate O'Regan[12] and Edwin Cameron, who described him as a man "of serious purpose, deeply committed to the Constitution",[33] and is now widely thought to have dispelled suspicions that he would be an executive-minded Chief Justice.

[39] The following month, Mogoeng called a meeting of senior judges who released an exceptional press statement "reject[ing]" criticisms of the judiciary made by Gwede Mantashe and Blade Nzimande in the wake of the ANC government's allowing Omar al-Bashir to leave South Africa in contravention of a court order.

[46] In 2012, Mogoeng upheld a constitutional challenge by Mario Oriani-Ambrosini, of the minority Inkatha Freedom Party, to rules of Parliament that allowed an individual MP to introduce a Bill only if he or she first obtained the majority's approval.

[34] Finally, in 2016, Mogoeng himself wrote the Court's judgment in Economic Freedom Fighters v Speaker of the National Assembly, which declared that President Zuma had violated the South African Constitution by failing to act on the Public Protector's Nkandla report.

[57][58][59][60][61][62] One commentator said Mogoeng's judgment was "his moment of triumph and redemption", and marked his transformation from a supposed "tool" of the establishment to a "national hero" in a manner reminiscent of Earl Warren.

[64] Shortly before this, however, Mogoeng had cautioned, in a contentious judgment that failed to win the support of a majority of his colleagues, that judges must respect the separation of powers and defer appropriately to the executive, and on this basis refused to accede to complaints that the government's controversial policy on new television broadcast technologies was unlawful.

2), in which opposition parties had argued that Parliament had not taken adequate steps to hold Zuma to account in terms of the order issued by the Court in the first EFF judgment.

[66] On this occasion Mogoeng was strongly opposed to finding against Parliament; he described the majority judgment, which upheld the opposition parties' complaints, as "a textbook case of judicial overreach" and criticised his colleagues for overstepping the separation of powers.

[68][72] In F v Minister of Safety and Security, in an apparent riposte to critics of his allegedly patriarchal views, Mogoeng strongly deplored sexual violence and held the state liable to compensate a young girl who had been raped by an off-duty policeman.

[73] And in 2013 he was praised for his "unexpected progressiveness" at the hearing of Teddy Bear Clinic v Minister of Justice, where his questions from the bench showed "he was clearly moved by the notion that consensual sexual behaviour between minors should not be criminalised".

[28] In DE v RH, in which the Court unanimously abrogated the action for adultery, Mogoeng wrote separately to emphasise that the law cannot be used to enforce marital ethics.

In March 2012 he was publicly criticised for requesting judges to attend a leadership conference hosted by Christian evangelist John C. Maxwell, raising concerns about the separation of church and judiciary.

[83] Mogoeng's religious convictions have also found their way into his judgments: in McBride, for example, he railed against the use of "foul language" and South Africa's "being denuded of moral standards", and cited the Bible.

[87][88] Paul Hoffman SC sought to have Mogoeng impeached on the basis that he had brought the judiciary into disrepute,[89] but this complaint was itself widely criticised as "ill-considered"[90] and "weak on the law"[91] and was dismissed by the Judicial Conduct Committee.

[94][95] The vacancy was then left open for over a year, as a series of female acting appointments were made instead, apparently to provide a test run.

[99] Starting in late 2014, after a change in the JSC's composition, several commentators perceived a marked improvement in the conduct of its interviews, especially on questions about gender transformation in the judiciary.

[100][103] Mogoeng was the head of the JSC during most of the long-running controversy over misconduct complaints against Western Cape High Court Judge President, John Hlophe.

[104][105] The main complaint against Hlophe was laid in 2008 by the judges of the Constitutional Court, who alleged that he tried to persuade them to decide a case in favour of then-President Jacob Zuma.