Mogoeng: a most unsuitable chief justice

Speaking in Cape Town on the theme "The duty to transform" on July 6, Chief Justice Mogoeng Mogoeng complained of an apparent resistance to change by a good number of fellow South Africans who had benefited from opportunities reserved exclusively for them by the apartheid system.

He said a group he perceived to be apartheid's key operators masqueraded as agents for constitutional compliance when they were, in fact, a change-resisting force. He urged his audience to avert the dangers he believed were inherent in a disguised protection of white male privilege at the expense of opening up opportunities for women and black men.

Calling for "a plan and the willpower to transform the professions not cosmetically but radically" and destroy whatever hurdles might still be standing in the way of many women and black lawyers joining these professions, he described Advocates for Transformation leader Dumisa Ntsebeza SC as a "lone ranger" in the thicket of contentious briefing patterns.

It is, of course, extremely difficult to change briefing patterns because all litigants want to win their cases. They sensibly choose the advocates who they think are best suited to successfully plead their cause.

Many people know that the president, facing 783 charges of corruption, chose a white male advocate. The chief justice did not raise this; instead, he demanded "brutal introspection" aimed at "delivering to posterity a transformed, reconciled and united rainbow nation".

The chief justice well knows that it is foundational to our new constitutional order that nonracial and nonsexist values be upheld. To launch a racist and sexist attack against white male lawyers, which is what he has done, does not serve to achieve or advance the type of transformed nation that is envisaged in the constitution. A "reconciled and united rainbow nation", to use his words, is one in which the race and gender of judges, lawyers and, indeed, anyone will not matter in measuring the worth of the individual.

The reference to considering the race and gender of judicial officers in the constitution is simply a mechanism for sifting candidates of equal worth. It should not be abused as a pretext for promoting undeserving or mediocre candidates over excellent ones. The integrity, independence and impartiality of the bench depend on this.

The chief justice ought to be repentant for uttering the words quoted here at a public gathering. Instead, when I met him at the World Justice Forum on July 8, he remarked: "You can continue to challenge me, but you will continue to be frustrated!" It is unthinkable that any chief justice of South Africa should evince such bias and malice, both of which have no place in any proper judge.

It is true that the chief justice and some of the judgments he has written or concurred in have been subjected to critical challenges. Even his suitability for the high office he now holds has been widely questioned on the basis of his track record of judgments, limited experience and questionable conduct as a judge and jurist. Trade federation Cosatu and the gay and lesbian community are among his critics.

He surely knows that human dignity and the right to equality before the law, as well as freedom of speech and to choose a profession, are guaranteed to all. The state is obliged to respect, protect, promote and fulfil these rights.

As a leading and important functionary of the state who is sworn to uphold the values of the constitution and act without fear, favour or prejudice, the chief justice is supposed to keep out of the political arena and controversy in much the same way as a referee in a soccer match does not actually kick the ball or score goals. Although the Constitutional Court is at the crossroads between law and politics, its members do not belong in the traffic at that intersection.

Some observers have been quick to defend the Helen Suzman Foundation, which has launched a court action against the Judicial Service Commission "to clarify the procedure and decision-making process relating to the nomination of persons for judicial office" against the critical comments by the chief justice.

"None of the personalities and NGOs who speak regularly and passionately about the perceived areas of concern about the JSC processes, and even litigate about them, have ever spoken with any, let alone equal, passion against the conservative apartheid-style instruction-giving and briefing patterns. They seem to be more concerned about white men who are not appointed and do not seem to be concerned about the reasons for not recommending them for appointment," Mogoeng said in his address.

It should be borne in mind that the chief justice is also the chair of the JSC. As chair, he will not - because of the hat he wears as chief justice - participate actively in the running of the case, the deposing of affidavits in opposition and the arguing of the matter. But as chief justice, "first among equals", he ought to be mindful of the perception he creates by pronouncing on the issues on which his brother and sister justices will be called to adjudicate.

It is also worth noting that the National Development Plan has identified weaknesses in the composition of the JSC, which the Democratic Alliance is attempting to address in a private member's bill in parliament. The mandate of the JSC, as set out in the constitution, is interpreted differently under the leadership of the chief justice to the way in which the Helen Suzman Foundation and others interpret it. The wording, that race and gender "be considered" in making appointments to judicial office, is regarded by some as a mere consideration when there are candidates of equal worth and by others as the guiding beacon for affirmation and transformation at all costs.

Ntsebeza, when pressed on the troublesome issue of how nonracial and nonsexist values are to be achieved when racial and gender bean-counting seems to be the main function of the JSC, was driven to argue that they would be satisfied when the judiciary was roughly half male, half female and reflected the racial demographics of the country from time to time. That is clearly not the nonracial and nonsexist values for which so much was sacrificed in the struggle against the racism of apartheid. It is racism and sexism in a different guise; it unfairly discriminates against fit and proper white males and deprives the country of the services of those appropriately qualified to undertake the onerous duties of judges.

This is unfortunate at a time when the poor and the cynical are questioning the legitimacy of the bench and its "affirmative-action chickens are coming home to roost", in the words of Judge Azhar Cachalia, said to the JSC.

Recent survey results show that on the watch of the chief justice the probity and integrity of the judiciary has declined in the eyes of those polled. While the chief justice continues to deliver the type of speech he made in Cape Town, expect the reputation of the judiciary to suffer further damage.

The Legal Practice Bill, secrecy legislation, functioning of the JSC and Hawks legislation are all likely to be challenged in the Constitutional Court before long. The facts set out in this article suggest that the chief justice will have to recuse himself in all these matters owing to the clear perception of political bias in his utterances.

He appears to be informed by the tenets of a different value system to that embodied in the constitution. He has been asked to explain and reconsider his utterances, but has not deigned to reply himself; instead a functionary in his office has let it be known that those concerned about his words and deeds should "forge ahead". This is unfortunate, but necessary.

The greater purpose here is to exact accountability: the privilege of the office of chief justice includes the responsibility to remain aloof from contestation and controversy at all times. The rule of law, the constitution and the people of South Africa are better served in this way.

Hoffman SC is a director of the Institute for Accountability