Judges cannot wear political hats: on the retired chief justice’s presidential run

Most announcements of a candidate running for president are made in front of television cameras and bright lights, with as much fanfare as possible. In a surprising move, retired Chief Justice Mogoeng’s presidential run was announced with a 2-minute video clip shot in a dimly lit room, that nevertheless set twitter abuzz. In the clip, a man representing the little-known All Africa Alliance Movement is seen holding hands with Mogoeng, making the grand announcement directly to the camera.

Although Mogoeng did nothing but smile in the video, and subsequent media reports say he declined to comment, the video at least signals a public declaration of a run for political office, probably representing the AAAM. By 12 August, the video had amassed over 220 000 views and nearly 2000 retweets. But can Justice Mogoeng do this? Can a retired judge, a retired Chief Justice in this case, run for president?

Constitutional protection of judicial independence

To protect judicial independence judges are given lifetime appointments to the Bench. This means that once you are appointed as a judge, you will die as a judge. Unless, of course, a judge is impeached by parliament.

Judicial office also comes with several lifetime benefits (Mogoeng receives remuneration worth about R2.8 million per annum) which includes car allowance, medical benefits, spousal benefits, and at the highest echelons, personal security. The Constitution at section 176(3) states that a judge’s salary, allowance, and benefits may not be reduced. The ultimate purpose of this is to free judges from the pressures (and temptations) of seeking income elsewhere. It’s a safeguard against judges being bought to decide cases in a certain way.

Legal restrictions on judges’ activities

With all these benefits come some far-reaching restrictions on even judges’ personal lives. The Judicial Service Commission Act at section 11 prohibits judges from receiving any payment for any service or holding any paid office other than judicial office. The Code of Judicial Conduct goes even further and limits several other aspects of a judge’s life. For example, judges may not be members of political parties; they may not speak on specific issues, especially ones that could be seen as reflecting on the merits of cases pending before the courts, or on issues that may seem critical of other judges, but particularly ones that may draw the judge into political controversy. Judges must also be careful who they associate with.

Some might ask if these restrictions violate judges’ constitutional rights, such as freedom of expression or freedom of association. The question has never been tested in court but in our view, they likely do not. As section 36 of the Constitution makes clear, rights may be limited, but only to the extent that it is a ‘reasonable and justifiable limitation in an open and democratic society based on human dignity, freedom and equality’ considering certain relevant factors, but also in terms of a law of general application. The JSC Act and the Code of Judicial Conduct are two such laws of general application, and an analysis of possible limitations would have to be done on a case-by-case basis.

Although a person holds the status of a judge for life, the law still draws a distinction between judges ‘in active service’ (i.e., actively adjudicating cases in the courts) and retired judges. The latter category has slightly less restrictions than the former – for obvious reasons. For example, a retired judge may receive payments for services or hold an office of profit, but only with the written consent of the Minister of Justice and the Chief Justice.

Judges generally retire at age 70, but there may be instances where a judge retires early. This is often at age 65 for most judges, but it may even be earlier for Constitutional Court judges, who serve for a prescribed, non-renewable term of between 12 and 15 years. Justice Kate O’Regan retired at 52 after 15 years on the Concourt. Mogoeng retired at age 60 and is fit as a fiddle, with plenty of life ahead of him. It’s no surprise that he would still want to be active in public life.

Mogoeng cannot be both a presidential candidate and a judge

However, if it is indeed so that the former Chief Justice is running for presidency, the Code of Judicial Conduct may stop him in his tracks. Under Article 17, applicable only to retired judges, Note 17(iv) states in no uncertain terms that “retired judges must not enter party politics”. Although there is no definition of‘ party politics’, it would be extremely hard for anyone to argue that running for president, representing an organisation, is not party politics.

Mogoeng would therefore need to resign as Chief Justice, giving up the title, status, privileges, and benefits of judicial office. Failing which, he would be in wilful breach of a Code he brought into being and was the chief enforcer for many years. If found guilty, it would constitute gross misconduct of the type that would lead to his impeachment, and a disgraceful loss of judicial office and the benefits that come with it.

Beyond being in breach of the law, Justice Mogoeng’s run for the presidency would also represent an unfortunate moment for the judiciary. It would call into question the motivations behind his previous public statements and whether they were solely guided by the law, or perhaps with an eye for high political office representing a political part.

In Brazil, Sergio Moro, the judge who presided over the Operaçáo Lava Jato (‘operation car wash’) case that brought down two presidents on corruption allegations, was, until recently, also running for president. This threw the spotlight onto his court rulings in ways still harmful to the Brazilian judiciary as an institution.

As Judges Matter noted in the past, several of Mogoeng’s public addresses have gone far beyond the path previous Chief Justices traditionally walked and skirted dangerously close to the politics of the day. It was, in fact, based on his public statements on South African government’s foreign policy towards Israel, that he was found guilty of judicial misconduct and ordered to apologise.

There is also recent talk of Mogoeng being nominated to chair the expert panel to inquire into the PhalaPhala allegations against President Ramaphosa, which would be the first step in the parliamentary impeachment process. Therefore any political ambitions by the former chief justice would be in direct conflict with this role that’s traditionally been played by an impartial decision-maker, such as a judge or lawyer.

Despite a noble motivation to put South Africa on a more moral path, it seems to us a grave mistake for a retired judge – no less the Chief Justice – to run for political office. We say nothing of his actual political chances, as the whimsical world of politics is something we’re simply not equipped to analyse.

Article by Mbekezeli Benjamin.
Mbekezeli Benjamin is a research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at UCT Law Faculty that monitors the judiciary in South Africa.
For more visit www.judgesmatter.co.za and follow @WhyJudgesMatter on Twitter.

A version of this article appeared in Daily Maverick (14 August 2022): https://www.dailymaverick.co.za/article/2022-08-14-mogoeng-mogoengs-rumoured-political-ambitions-would-impair-sa-judiciarys-trustworthiness/

Read more about judicial conduct here: https://www.judgesmatter.co.za/conduct/