A judicial want of judgement
The 17th Nelson Mandela Annual Lecture delivered last month by the chief justice, Mogoeng Mogoeng, has not attracted as much attention as it warrants. Speaking on "Constitutionalism as an Instrument for Transformation", the chief justice said that he was "not aware of any judiciary in the world that wields the kind of power that we do" and that there is "almost nothing we cannot do in the instrumentality of the Constitution".
This is more disconcerting than it is reassuring, given that the chief justice sees the Constitution as an instrument to achieve "transformation". And, as he himself observes, "absolute power corrupts absolutely".
The lecture constitutes a timely warning to litigants and/or defendants of the strong views the chief justice holds on a number of contentious issues. Nor is this the first time that Justice Mogoeng has spoken out so forcefully. In a speech to the Black Management Forum in June 2016 he denounced as "spin-doctoring" claims that the government had plenty of land available for distribution.
In that same speech he also said that anyone acting as a "front" in black economic empowerment was a "traitor". In his Mandela lecture, he said that anyone living comfortably in a suburb who was "indifferent" to the plight of people in Diepsloot was also a "traitor", a "traitor of our Constitution", a "traitor of Nelson Mandela", and "a traitor of any other person who suffered for us to get where we are".
The Mandela lecture also contained strong views on environmental matters. The environment was "polluted", rivers "toxified", and fauna and flora were being "ravaged with boldness". The pollution evident in India would soon come to South Africa if people with an "insatiable appetite for money in government and the private sector" were allowed to do as they pleased.
This is a rather one-sided view of the causes of the "ecological degradation" the chief justice deplores. It overlooks the possibility that some of the problems he identifies are the result not of lack of concern for "human life" or an "insatiable appetite for money" but rather of government policies to advance the "transformation" he favours.
Justice Mogoeng also said that "most of the problems we have to contend with right now are a direct consequence of colonialism and apartheid". It was "therefore absolutely necessary that we never stop talking about colonialism and its sister neo-colonialism, and apartheid, because then you leave those who have always believed in this crime against humanity to be comfortable".
South Africa remained "toxified by racism because we have not dealt with the first issues of colonialism and apartheid". Anybody "truly committed to constitutionalism would not use the Constitution to retain toxic, colonialist, and apartheid tendencies and practices under some sugar-coated pretences".
These remarks on colonialism recall to mind remarks made by the chief justice in the Tshwane street names case in 2016 arising out of Afriforum's attempt to interdict the changing of certain street names in that city. Handing down judgment against Afriforum, Justice Mogoeng said the continued use of various street names reflected the stubbornness of colonialism and apartheid. He also rebuked Afriforum on the grounds that the Constitution was never meant to be "a weapon conveniently produced by some of us only when it could help advance illegitimate sectarian interests through legal stratagems".
In a 2017 case, this one involving whether or not Afrikaans should continue to be used as a principal medium of instruction at the University of the Free State, he argued that judicial officers should never be "emotionally tangled" in matters presented for their determination.
Yet it seems as if he himself is "emotionally tangled" over colonialism and apartheid, as well as race. No doubt many people are, but the question is whether the chief justice should permit himself the luxury of giving vent in a public lecture to powerful views on issues that may come before him when he sits as a judge. He himself warned in his Mandela lecture about the importance of making sure "that we don't have a compromised judiciary". Is he heeding his own warning?
"Fronting" is a crime which carries maximum penalties of ten years of annual turnover for offending companies and ten years' imprisonment for directors. The remarks by the chief justice to the Black Management Forum in 2016, in which he likens fronting to treason, would no doubt give rise to demands for recusal should a conviction for fronting ever come before the Constitutional Court.
So also, the chief justice's warning in his Mandela lecture that "you will not use the Constitution to resist change" could lead to demands for his recusal should he be called upon to hear a case involving removal of the property rights entrenched in section 25 of the Constitution.
The chief justice ends his Mandela lecture by saying that "we must just ostracise" anyone "who displays arrogance in holding on to the vestiges of apartheid and colonialism". Yet the Constitution guarantees equality before the law and access to the courts, which are required to apply the law "impartially and without fear, favour, or prejudice." The chief justice's call for the ostracism of people of whose views he disapproves is incompatible with these fundamental principles of the Constitution he is sworn to uphold.
The speech itself shows why judges should exercise caution before they make political pronouncements lest they call into question not only their impartiality but also their powers of judgement.
* John Kane-Berman is a policy fellow at the IRR, a think-tank that promotes political and economic freedom. Readers are invited to take a stand with the IRR by clicking here or sending an SMS with your name to 32823. Each SMS costs R1. Ts and Cs apply.