Using the occasion of the oration he gave at the state funeral of the late Judge President of the Land Claims Court, Fikile Bam, the new Chief Justice, Mogoeng Mogoeng, took a swipe at those he called "vicious" critics of the judiciary and sitting judges. Singling out retired judges for special mention, and threatening those whose criticisms are not "collegial and constructive" with disciplinary measures in terms of the Judicial Code of Conduct, he let it be known in no uncertain terms that he disapproves of certain unspecified but published criticisms of the judiciary he leads. It is important to identify those to whom he refers and to ascertain exactly why these "vicious" critics were lambasted by him in his speech.
These unprecedented remarks, available in full on the website of the Witness (see report), were made in general terms; they nevertheless bear careful analysis. This is especially so as the chief justice chose not to name any names of those he appears to regard as the culprits when delivering his broadside.
The starting point of such analysis is naturally the Constitution itself. The judiciary is afforded special protection by the terms of its section 165. Interference with the functioning of the courts is specifically proscribed. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
Contempt of court is a long-standing and well recognised criminal offence, one which the courts and litigants have not shied away from utilising when the need arises. Defamatory criticisms can give rise to both civil and criminal proceedings. Intimidation is a statutory offence. The Judicial Service Commission is always available to investigate complaints of misconduct by judges, including retired judges, though it seems that this avenue has not yet been explored by anyone as dissatisfied with critical comments as the chief justice appears to be.
Against this is the right of all, including retired judges, to freedom of expression. This right is central to the press and other media and includes the right to impart information or ideas. The limitations on the right to freedom of expression do not appear to have any bearing upon the matters alluded to by the chief justice and need not form any part of the analysis of his stance.
The context of the remarks made by the learned chief justice is one in which the transformation of the judiciary remains a contested terrain. To some the process of transformation has been pursued with too much vigour; to others not enough has been done to take gender and race into consideration when judicial officers are appointed. Certainly, when it comes to the appointment of women as judges there has been less transformation than has been the case in respect of redressing the racial imbalances of the past. Central to much of the criticism of the judiciary is the weight to be attached to the primary requirements for appointment of judges: they should be appropriately qualified, fit and proper persons. The problem, not to put too fine a point on it, is that there are too many candidates for the bench who meet the primary requirements but do not fit the need for the judiciary to reflect broadly the racial and gender composition of the country. These, constitutionally speaking, "must be considered" when appointing judges. Some critics contend that this consideration has been allowed to trump the primary requirements too often in the helter-skelter pursuit of transformation at a rate that the pool of persons willing to be candidates for the judiciary is not able to sustain. Others bewail the slow rate of transformation, pointing to the fact that at no sitting of the JSC has a pale male candidate (the demographic in greatest over-supply) not been appointed.
The political imperative to transform society, and with it the judiciary, has led to appointments that are lacking in lustre. The chief justice himself has very properly highlighted the inability of some new appointees to write judgements expeditiously and run their courts efficiently and has pointed out that a black skin is not a guarantor of commitment to the values of the Constitution which all judges are obliged to uphold.
In all these circumstances, it is a little difficult to divine who it is that has provoked the ire of the chief justice. The litigation to unseat Cape Judge President, John Hlophe, has been waged for years and is being conducted by Helen Zille, in her capacity as Premier of the Western Cape, and Freedom Under Law, an NGO whose name reveals its mission. It is true that retired justice Johann Kriegler has played a leading role in the formation and activities of FUL. Its activities, and those of Kriegler before its formation, have always been both proper and constructive, not "vicious". Indeed, Kriegler initially become directly involved in the complaints against Hlophe as a critic of the JSC's handling of the first complaints against Hlophe. After his spat with the justices of the Constitutional Court began in May 2008 FUL once again entered the fray as a critic of the JSC, not the judiciary. Long before Kriegler's involvement in the Hlophe saga, the mendacity, fitness for office, improper moonlighting, tax evasion and racism of Hlophe had detained the JSC and a previous chief justice. Instead of dealing fully, properly and transparently with the early complaints, they were swept under the carpet. Emboldened by his apparent immunity, Hlophe went on to disgrace himself and bring the entire Bench into disrepute in a despicable display of what can only properly be described, even on his own version, as interference with the functioning of the Constitutional Court - an activity not permitted by the express words of the Constitution. It is lamentable that the litigation and disciplinary proceedings concerning Hlophe have been allowed to drag on for so many years and that he has been allowed to act as a temporary member of the JSC, vetting candidates for appointment while still under a cloud.
It is also so that retired judge of appeal, Ian Farlam, the patron of the Centre for Constitutional Rights, has publicly expressed well-reasoned reservations about the plans to create a single apex court. His "if it ain't broke, don't fix it" arguments can hardly be described as vicious. Kate O'Regan, a retired justice of the Constitutional Court has participated intelligently in public discourse on topics as disparate as the role of women in the judiciary, the separation of powers and the criteria for appointment of commissioners of the JSC. Like her colleague Albie Sachs, also often in the public eye, she does not have a vicious bone in her body.
The retired chief justices, Chaskalson, Langa and Ngcobo are all models of propriety and decorum. Tellingly, Chaskalson has been tartly vocal in his disapproval of Hlophe's conduct toward his former colleagues in Braamfontein. Other retired judges seem to prefer to keep a low profile; either enjoying their grandchildren or helping out quietly in the neighbouring countries and the arbitration forums of the region.
It is, and remains, impossible to work out to whom among the retired judges the chief justice was referring as "vicious" critics of sitting judges and the judiciary. Perhaps he should consider being a little more explicit on the next occasion on which he feels moved to express his ire so forcefully. Let's all hope that he was not firing a warning shot across the bows of the legitimate critics of the judiciary who happen to be retired judges. The pool of talent among them is a valuable national resource that ought not to be stifled or silenced by ill-considered or over-sensitive remarks.
Paul Hoffman SC is a director of Ifaisa. (www.ifaisa.org). This article first appeared in The Witness.
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