The first CJ to be rapped on the knuckles by the JSC

The first Chief Justice to be appointed in post-apartheid South Africa was Chief Justice Ismail Mahomed, who took office in 1998 until his death in 2000. Thereafter Chief Justice Arthur Chaskalson was appointed into office in 2001. Chaskalson retired as Chief Justice in 2005 and was succeeded by his former Deputy Chief Justice, Pius Langa, who came into office in the same year (2005). Chief Justice Langa retired from office in 2009 and sadly died in 2013, at the age of 74. After Chief Justice Langa’s retirement in 2009, Chief Justice Sandile Ngcobo served as Chief Justice from 2009 until 2011. Chief Justice Ngcobo was then succeeded by our current Chief Justice Mogoeng Mogoeng.

Of the five Chief Justices in post-apartheid South Africa, it is only Chief Justice Mogoeng who has ever been the subject of a complaint before the Judicial Service Commission (JSC).

Of the five Chief Justices in post-apartheid South Africa, it is only Chief Justice Mogoeng who has ever been the subject of a complaint before the Judicial Service Commission (JSC). There are currently two complaints against Chief Justice Mogoeng, before the JSC. The first complaint is in relation to comments he made during a webinar in June 2020, which is the subject-matter of this piece. (Read more here.) The second complaint against him is in relation to comments he made about the COVID-19 vaccine. (Read more here.) These are the only two complaints which are in the public sphere. However, there might be more complaints as the JSC has said, in no uncertain terms, that it does not make all complaints against judges public – which is an unjustifiable position.

JUNE 2020 WEBINAR ATTENDED BY CJ MOGOENG

In June 2020 Chief Justice Mogoeng attended a webinar hosted by The Jerusalem Post, which is an Israeli newspaper. The webinar was also attended by Rabbi Warren Goldstein. The webinar was titled “Two Chiefs, One Mission: Confronting Apartheid of the Heart”. Although the title of the webinar in no way demonstrated that the discussion would be centred around the judiciary or any extrajudicial activities that a judicial officer may participate in, Chief Justice Mogoeng attended the webinar and actively participated.

During the webinar, the following was put to Chief Justice Mogoeng:

“You are a member of the judiciary. But it is no secret that there’s some tense diplomatic relations between our two countries, between Israel and South Africa. It’s not a secret, it’s all over the press and we had a bit of tense diplomatic flare up just about a year ago. You know, what do you think about that?

Right, this is a … the state of Israel is a country, we used to have very close relations with South Africa, they’ve gone up and down over the years. Um, is that something that should be improved, in your opinion?”

Instead of refraining from answering or commenting on the issue, as a member of the judiciary, Chief Justice Mogoeng went ahead and acknowledged that he is unequivocally bound by the policy direction taken by South Africa in relation to Palestine and Israel. However, Chief Justice Mogoeng went further and noted that, as a citizen he is entitled to “criticize the laws and the policies of South Africa or even suggest that changes are necessary.”  In criticising the policy direction of South Africa, Chief Justice Mogoeng, among other things, noted that he is under an obligation “to love Israel, to pray for the peace of Jerusalem which actually means the peace of Israel.” In addition, the Chief Justice noted that “the overwhelming majority of South Africans of African descent are landless, they don’t have land…. Because colonialist came and took away the land the belongs to them.” However, South Africa has not cut diplomatic ties with its colonisers and did not embark “on a disinvestment campaign against those responsible for untold suffering in South African and the continent of Africa.” The Chief Justice also questioned whether “[d]id Israel take away our land? Did Israel take away the land of Africa? Did Israel take the mineral wealth of South Africa and of Africa?” It is this criticism by the Chief Justice which led to a complaint being lodged to the JSC.

COMPLAINT LODGED AGAINST CJ MOGOENG

The complaint against CJ Mogoeng was lodged in July 2020 by Africa4Palestine, the South African Boycott Disinvestments and Sanctions Coalition (SA BDS Coalition) and the Durban based Women’s Cultural Group (WCG), in terms of section 14 of the Judicial Service Commission Act 9 of 1994 (the JSC Act). Section 14 of the JSC Act states that “[a]ny person may lodge a complaint against a judge with the Chairperson of the Committee.” Section 14 further provides guidance on the form and manner in which a complaint may be lodged.

The main complaint against CJ Mogoeng is that he committed a wilful or grossly negligent breach of the Code of Judicial Conduct of 2012 (the Code).

The main complaint against CJ Mogoeng is that he committed a wilful or grossly negligent breach of the Code of Judicial Conduct of 2012 (the Code). The complaint alleges that CJ Mogoeng breached the Code in that he became involved in political controversy or activity; he failed to recuse himself from a pending case where there has arisen a reasonable suspicion of bias against one of the parties; and he involved himself in extrajudicial activities which are incompatible with the confidence in and the impartiality of a judge.

CJ Mogoeng opposed the complaint against him. In opposing the complaint, CJ Mogoeng contended that political controversy or activity, which article 12(1)(b) of the Code proscribes, only relates to political parties, and must be interpreted and understood with reference to proscribed membership to political parties. CJ Mogoeng also pointed out that judges also have fundamental rights and freedoms and are not to be needlessly censored, gagged, or muzzled. The specific fundamental rights referred to by the CJ are the rights to freedom of religion, belief and opinion (section 15 of the Constitution) and freedom of expression (section 16 of the Constitution).

DECISION BY THE JUDICIAL CONDUCT COMMITTEE’S JUDGE MOJAPELO

After the complaint was lodged with the JSC, the acting chairperson of the JCC – the Deputy Chief Justice, designated retired Judge Mojapelo to investigate the complaint in terms of section 17 of the JSC Act. Section 17 makes provision for an inquiry into serious but non-impeachable complaints. Section 17 requires that an inquiry into complaints must be conducted in an inquisitorial manner, and there is no onus on any person to prove or to disprove any fact during such investigation.

In reaching a decision, Judge Mojapelo considered South Africa’s legal and ethical framework, which includes the Constitution, the JSC Act and the Code of Judicial Conduct, specifically articles 12(1)(b), 13(b) and 14(2)(a). Judge Mojapelo considered the separation of powers in respect of the three arms of the state (the executive, the legislature, and the judiciary). Judge Mojapelo noted that it is the Minister of International Relations and Cooperation who handles the relationship between South Africa and other countries such as Israel and Palestine – this power vests in the executive, not the judiciary. Therefore, the comments made by the CJ as a member of the judiciary, encroached on executive powers.

Judge Mojapelo noted that it is the Minister of International Relations and Cooperation who handles the relationship between South Africa and other countries such as Israel and Palestine – this power vests in the executive, not the judiciary. Therefore, the comments made by the CJ as a member of the judiciary, encroached on executive powers.

Judge Mojapelo also considered whether the constitutional rights of judges are unduly denied or restricted when the Code of Judicial Conduct is being applied. Judge Mojapelo noted that it is necessary that there be some measure of restraint to secure the independence of judges, not for themselves, but for litigants. The restraint ensures that judges are able to dispense justice without fear, favour, or prejudice, as required by the Constitution and as required by the oath they took when they were first appointed as judges.

To ensure that judges indeed uphold their oath of office and the constitutional requirement that they dispense justice without fear, favour, or prejudice, it is necessary that judges stay out of politics, and only pronounce on legal and constitutional boundaries that may apply to those politics.

To ensure that judges indeed uphold their oath of office and the constitutional requirement that they dispense justice without fear, favour, or prejudice, it is necessary that judges stay out of politics, and only pronounce on legal and constitutional boundaries that may apply to those politics. Judge Mojapelo held that: “When called upon to pronounce, they do so on the basis of the Constitution and the law and not on the basis of any preconceived notions – not even religion – however committed to those notions. That is what the Constitution and their oaths or affirmation binds them to.”[1] Therefore, judges including the CJ, are not precluded from practicing their religious beliefs, but they must do so within the confines of the Constitution, the law and their chosen profession – which requires restraint to be exercised.

Judge Mojapelo found that judicial misconduct did arise from the statements made by the Chief Justice during the webinar in June 2020. The CJ was found to have contravened the provisions of the Code of Judicial Conduct, as alleged by the complainants. Remedial steps in the form of a scripted unconditional apology and retraction were ordered by Judge Mojapelo, in terms of section 17(8) of the JSC Act. Chief Justice Mogoeng was ordered to unconditionally apologise and retract the statements he made within 10 days of the decision having been made by the JCC.

Chief Justice Mogoeng has, however, appealed the decision. It is important to note that the CJ was well within his rights to appeal the decision of the JCC. In terms of section 17(7)(b) of the JSC Act a respondent who is dissatisfied with any finding or remedial steps may, within one month after receiving notice of that finding and remedial steps, appeal against that finding and remedial steps to the JCC in writing and specifying the grounds of appeal. The appeal was considered by the JCC on Friday, 11 June 2021 and is still pending before the JCC.

WHAT JUDGES SAY MATTERS

A judge is not an ordinary citizen, but a person who is responsible for upholding and applying the law without fear, favour, or prejudice, both in their professional and personal lives.

Judges Matter continues to support the notion that judges speak through their judgments. This is not to say that judges do not have the rights entrenched in the Constitution. However, the moment a judge takes office they are required to take an oath or affirm in terms of section 174(8) of the Constitution that they will “be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour, or prejudice, in accordance with the Constitutions and the law”. It is not only the oath or affirmation that imposes a limitation to a judge’s constitutional rights, but it is also the very nature of judicial office which provides the limitation. A judge is not an ordinary citizen, but a person who is responsible for upholding and applying the law without fear, favour, or prejudice, both in their professional and personal lives. Therefore, it is necessary that judges always exercise judicial restraint in all aspects of their lives.

[1] The Decision of the JCC, par 107