Chief Justice Mogoeng Mogoeng (Jabu Kumalo)

Chief Justice Mogoeng Mogoeng (Jabu Kumalo)

The furore over Chief Justice Mogoeng Mogoeng’s unwavering public support of Israel raises far deeper questions beyond one of the longest border disputes in modern history. After pronouncing his support for Israel as a Christian, and subsequently apologising for what he refers to as his country’s hatred of Israel, Mogoeng has faced massive criticism across all spheres of society, ranging from religious to civil society leaders as well as academics.

It is not too often that such a diverse group is united in a rage against the country’s chief justice, let alone the chief justice being the instigator of the rage. Some political parties have called for Chief Justice Mogoeng Mogoeng to face disciplinary action at the Judicial Service Commission because of his embarrassing utterances during a webinar with The Jerusalem Post.

But those who want Mogoeng sanctioned need to realise that they are late; the chief justice has been at this for a while and it is suspicious that people are only raising concerns now.

The fact is Mogoeng has never been shy about expressing his religious or moral convictions. During his confirmation, he openly stated his religious convictions. For this, he was lampooned but it was conveniently forgotten. If it did not matter in his career as a judge, I do not believe that the chief justice would have made us aware that he is a devoted Christian. The chief justice has always been open with us about being a devoted Christian. 

As South Africa’s democracy further consolidates its challenges, there will be more contests in society about the political views of the judges who serve at the Apex court and superior courts. This is already a common phenomenon in relation to the confirmation of judges who serve on the Supreme Court. In the US, judges are interrogated based on their religious convictions, their worldviews, including political convictions in cases where those aspects are necessary to understand how a candidate will relate to broader issues in society.

The system is far from perfect, but it brings forth the necessary debate society must have openly with regard to how candidate judges are likely to shape society. It is rather naïve and irresponsible for society to play dead and pretend as if judges should not hold views or positions on issues that affect the very society in which they mediate.

If we pretend judges do not hold a viewpoint on issues, we will end up lynching them whenever they express views that we find unpopular in society. The main issue regarding the Mogoeng matter is not necessarily the fact that he publicly expressed a view. The issue seems to be that he expressed an unpopular view; the view that is contrary to the country’s political position, whichever way that position is arrived at. The hypocrisy on this matter smells worse than fish sauce.

Mogoeng has previously spoken his mind on social justice and lack of transformation in our society. The chief justice has been vocal on the Nkandla matter, a political disaster that Parliament failed to resolve; only to be corrected by the court that is led by Mogoeng. There has not been an outcry when the chief justice expressed his moral judgement on some of the political decisions that were made.

Some of those wanting to lynch the chief justice now are the very same people who defended him against criticism that he should not speak out about the impact of the past on continuing inequalities in the country. The reason why Mogoeng is facing a renewed backlash is because he said unpopular things in the most undiplomatic manner, as if he was setting himself up to be a crusader for what was about to come his way. This is something that borders on career suicide. It is outright inadvisable to pick such a fight.

I wonder if anyone would have noticed if the chief justice pronounced on how the existence of Western Sahara as a sovereign nation is a modern example, showing how self-determination is the foundation of all constitutional rights. That would have been a nice topic to venture into if one is a bit tired of local content. Morocco would have accused the chief justice of treason, something that would have no direct impact on his life or career, and Luthuli House would have sent him a gift hamper with nice goodies.

The problem is that the chief justice picked a wrong topic this time. However, that does not mean he should not be allowed to hold views. It is rather worrying that the call for the chief justice to be sanctioned is based on disagreements with the contents of the message. If I disagree with the chief justice in his formulation of the Israeli problem, it does not mean he should not be allowed to speak.

Given that we live in a democracy, it would be unfair to expect judges not to have views about society. Judges are invited to give lectures and keynote addresses where they express their views. That does not mean that their judgments are compromised because one got a glimpse of their viewpoint. That simply means the judgments are more accessible as we understand where some of the basis of reasoning may come from.

Mogoeng might be irritating with his ideals regarding what is a well-ordered society, but that does not amount to judicial misconduct.

Despite how enraged people are, to discipline the chief justice for expressing a political view is undesirable if we want to preserve the principle of judicial independence. That would cause long-lasting animosity between the judiciary and the executive in our system.

– Dr Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa’s Turn. 

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