28 June 2020
Politics by its very nature is mud wrestling. No one comes out clean – and when the judiciary dares to play in that space – the independence and integrity of the esteemed bench is the biggest loser.
Chief Justice Mogoeng Mogoeng this week jumped into the political pit when he expressed his apparent support for “apartheid Israel” – a stance hostile to official government policy – and thus
(correctly) drawing rebuke from the ANC and EFF.
An independent judiciary was a saving grace when unscrupulous politicians almost sold off this country to the highest bidder. A lot of work has gone into building the stature of the bench in society and we can ill-afford a maverick chief justice who fails to restrain himself.
The separation of powers enshrined in our constitution is not only an abstract concept but must be seen to be sacrosanct.
The integrity of our system of government rests on every judge’s shoulders and their robes should never be muddied by engaging in matters they have no business opining on.
Mogoeng, like any other judicial officer in the republic, is an emissary for a judiciary whose effectiveness depends on its ability to be untarnished in the minds of the South African people – a people with diverse and sometimes contradictory religions.
The judiciary’s impartiality and the appearance of it are paramount to the judiciary’s integrity and Mogoeng cannot behave like a free agent – ever ready to pronounce on matters he might well have to preside over in the future.
The rules in the Judicial Code of Conduct demand that a judge must act with impartiality, must not act in a manner that suggests favouritism for a particular side and must act fearlessly.
This simply means that public confidence in the judiciary’s impartiality is indispensable to justice. This cannot be achieved if the honourable bench is seen as engaging in political warfare.
If it becomes the norm for the highest judge in the country to make political statements that belong to other arms of state, then we are opening the door to disorder.
Mogoeng, and perhaps those who wish to support him, may argue that he, like everyone else, ought to enjoy freedom of speech enshrined in our celebrated constitution. As the media, we are as much the greatest defenders of free speech as we are the guardians of its abuse.
Imagine a head of the defence force making a political speech just because he, as a citizen, enjoys the same rights all citizens enjoy. Imagine then that speech being critical of a sitting president and supportive of the EFF or, to be flippant, the Freedom Front. What happens in that instant to billions invested on the JSE? One word – calamity.
Trite though we thought it was, we must caution that some positions in the public space, including Mogoeng’s, demand greater circumspection to freedom of speech and association.
It is a pity we must remind no less an authority as the chief justice that judges ought to take extra care when
expressing themselves because their official responsibilities take precedence over all else.