The Centre for Constitutional Rights is deeply concerned about some of the comments made by Chief Justice, Mogoeng Mogoeng, at the Advocates for Transformation's Annual General Meeting on 6 July 2013.
The Chief Justice has taken an oath ‘To administer justice to all persons alike, without fear, favour or prejudice in accordance with the Constitution and the law.’
This means, firstly, that the Chief Justice must at all times conduct himself in such a manner that all South Africans, regardless of their race, will have confidence that they will be treated equally, impartially and without prejudice by the judicial system. The Chief Justice must accordingly take great care in his public statements to avoid any perception of racial bias or ethnic animosity.
Unfortunately, in his speech of 6 July 2013, Mogoeng manifests barely disguised hostility to everyone who is critical of the Judicial Service Commission (JSC). He begins, in stark contrast with his later references to unity and nation-building, by reminding his audience that those South Africans who were the major cause of the suffering caused by apartheid are still, according to him, the main beneficiaries of the system. He then asserts - without producing the slightest shred of evidence - that, "A grouping of its [apartheid's] key operators" are masquerading as "Agents for the enforcement of constitutional compliance when they are in fact a change resistance force."
He blatantly misrepresents the well-founded concerns of respected members of the legal profession and of civil society regarding the appointment of judges on merit, as an attempt to protect ‘white male dominance of the profession and of the bench’. Whether the Chief Justice's comments were intended to inflame certain sentiments in his primarily black audience or merely an expression of his personal opinion, they are unacceptable. What assurance can all South Africans have that such sentiments will not colour any judgment that the Chief Justice might make in cases where their respective interests are involved?
Secondly, the Chief Justice's oath requires him to take the greatest care in his public statements not to become embroiled in disputes that might come before the courts. Once again, his speech is full of partisan comments that fatally compromise any claim that he might have to impartiality with regard to current and future cases relating to the JSC - and particularly to its role in the appointment of judges. He claims that those who have challenged the JSC in the courts are "Clutching at straws to discredit the JSC" and that they "Want the JSC they can dictate to." He says that this is part of "A deliberate attempt...to delegitimise the JSC" and to "Intimidate or mock the JSC into recommending without proper reflection, certain white men and at times certain women" for appointment to the bench.
The Chief Justice made these comments despite recent court judgments which found that criticism of the JSC is not without foundation. On 30 September 2011, in Cape Bar Council v Judicial Service Commission and Others, the Cape High Court declared, with regard to the JSC's failure to fill judicial vacancies on 26 April 2011, that that the proceedings "Were inconsistent with the Constitution, unlawful and consequently invalid." On 14 September 2012, the Supreme Court of Appeal dismissed the JSC's appeal and, in essence, upheld the High Court's judgment.
On 7 June 2013, the Helen Suzman Foundation (HSF) launched legal action against the JSC to clarify the procedure and decision-making process relating to the nomination of persons for judicial office.
The Chief Justice has already made it patently clear where he stands on this issue and will accordingly have to recuse himself if, as is quite possible, the case ever comes before the Constitutional Court.
Finally, the Chief Justice's oath of office requires him to administer justice "in accordance with the Constitution and the law." However, factors other than the Constitution and the law may influence the Chief Justice's judgments. It would appear that, for him, the need for his version of transformation might transcend the prescripts of the Constitution and of the law. In a recent public address he emphasised that, "We need to transform the judiciary so that the demographics are representative. That is the bottom line."
The Chief Justice evidently wants to impose demographic representivity on the judiciary in the same manner that the government has imposed mathematical demographic representivity in the public sector - and now wishes to do in the private sector. However, the drive for demographic representivity has its roots not in the Constitution, but in the ideology of the ruling alliance.
The Constitution does not endorse the notion of demographic representivity. Section 195(1)(i) indeed, quite rightly calls for public administration that is broadly representative of the South African people - but also stipulates that, "Employment and personnel management practices must be based on ability, objectivity and fairness." Section 174(2) similarly states that, "The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed." However, such consideration cannot overrule the requirement in section 174(1) that, "Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer."
The legal profession and, in particular, the judiciary have already been substantially transformed since 1994. All reasonable people - including the vast majority of the members of the legal profession, irrespective of their race - accept the need for a legal profession and a judiciary that is broadly representative of the South African population. They would support the Chief Justice's call for the dismantling of any artificial hurdles that might still stand in the way of black, brown or Indian lawyers.
They would endorse the need to produce more experienced black, brown and Indian advocates and to ensure that they are given important briefs, regardless of gender. However, all of this should take place within the framework of the Constitution with its carefully balanced requirements and prescriptions.
- Centre for Constitutional Rights at the FW de Klerk Foundation.