Constitutional Hill

Mogoeng Mogoeng

The law vs. religion: Let’s try that again

The debate sparked by Chief Justice Mogoeng Mogoeng after he stated in a speech in Stellenbosch that it would be a good thing if religion influenced “the laws that govern our daily lives starting with the Constitution”, has been both frustrating and misinformed. Instead of focusing on the veracity and desirability of the arguments advanced by Justice Mogoeng, most commentators focused on the irrelevant question of whether a Chief Justice should express his religious views in public at all.

Chief Justice Mogoeng Mogoeng was admirably honest and transparent about his personal convictions when he stated – quoting that great freedom fighter and anti-colonialist, Lord Denning – that he believed “without religion there can be no morality; and without morality there can be no law”.

Judges are not empty vessels, lacking any personal beliefs, values and opinions. Instead, the different life experiences of judges (often focused on their differences in sex, gender, sexual orientation, race, class, religious or non-religious beliefs and other circumstances) may well influence how they view the world and the legal problems they are confronted with and, to some degree, how they will interpret the often open ended provisions of the Constitution in order to solve those legal problems.

Similarly whether a judge is a Pentecostal Christian, an atheist, a cultural Anglican, a Rastafarian, an agnostic, a devout member of the Dutch Reformed Church or a member of the File Sharing Religion may well have some influence on the way in which that judge sees the world and how he or she will resolve the legal problems he or she is called upon to adjudicate on.

Of course, judges need to be impartial. But this does not and – conceptually – cannot mean that a judge is required to have no beliefs or value system on which he or she will inevitably draw to decide complicated constitutional questions raised before him or her.

It only means that a judge must not pre-judge a case and must hear all the arguments before him or her and must consider both the applicable legal text and the relevant binding case law before making a ruling on a specific matter.

I would think it is far better and more honest for a judge to admit to these personal beliefs and to declare them upfront, as the Chief Justice did in his speech. Where judges declare their views openly, it is far easier to engage with the judgments written by that judge and to construct an argument either in support of or critical of the approach taken by a specific judge.

For this reason I have come to the realisation (modifying my previous position) that I have no problem with Chief Justice Mogoeng Mogoeng stating his views on the desired role of religion in law-making and constitutional interpretation in public.

However, I do believe that judges are not beyond criticism and that citizens are entitled to engage critically with the stated beliefs and values of judges.

The far more productive debate about the speech delivered by the Chief Justice would confront the substance of his speech and would construct arguments either in defence of his views or critical of them.

I propose to do the latter. It would enhance democratic debate if others who disagree with me took the time to construct counter arguments.

In this regard I believe the views expressed by Chief Justice Mogoeng on the role of religion in law-making and constitutional interpretation are intellectually incoherent and shallow, nonsensical and (to the extent that one can make any sense out of them) socially and politically reactionary and hence in direct opposition to my own value system and the norms embedded in the Constitution.

It is of course highly controversial to argue – as the Chief Justice did – that religion can be the only source of morality in any society. This claim ignores (or is ignorant of) developments in both traditional African philosophy and Western philosophy of the past 150 years.

For example, for some of us, humanism is an attractive non-religious source of morality, given its emphasis on the value and agency of human beings, individually and collectively, and its focus on the value of critical thinking and evidence over established doctrine or faith.

Given the fact that the value of human dignity is one of the founding values of our Constitution and given, further, that dignity is closely associated with the moral agency of humans, it is easy to square humanism with South African constitutionalism.

However, it is conceptually difficult if not impossible to square the views of the Chief Justice about morality (as prohibiting human beings from engaging in forms of sexual behaviour outside of state recognised marriage – even when this does not harm others) with the demands of the constitution to protect the infinite human dignity of every human being.

If laws were put in place (as the Chief Justice suggest they should) to curtail the freedom of individuals to decide for themselves how they wish to live their lives and how they want to arrange their intimate affairs, such laws would curtail the inherent human dignity of everyone. This would be in direct conflict with one of the founding values of our Constitution, a value, which our Constitutional Court has said, runs like a golden thread throughout the Constitution.

Moreover, anyone familiar with Immanuel Kant’s attempts to formulate rules on how to determine right from wrong through the categorical imperative (the idea that actions can only be considered moral if they could be imitated by anyone else and produce good results) would also be hard-pressed to agree with the Chief Justice that religion is the only possible source of morality in society.

You might not agree with Kant, but at the very least his philosophy – which former Constitutional Court Justice Laurie Ackermann has argued forms the intellectual basis for any understanding of the Constitutional Court’s dignity jurisprudence – posits an alternative source of morality not associated with any religious doctrine.

Of course, this idea that religion is the only source of morality for a society is especially common among those who associate morality with sexual behaviour.

Although it is difficult to tell exactly what the Chief Justice means by “religion” (there are many different religious traditions and many conflicting moral beliefs even within the Christian tradition, a tradition which the Chief Justice claimed to source his views from) his speech does suggest that he associates religious values with a strand of Pentecostal Christianity that focuses on sex as the root of all evil in the world.

Thus Justice Mogoeng stated in his speech that:

a legal framework that frowns upon adultery, fornication, separation and divorce, subject to appropriate modification, would, idealistic as this may appear to be, help us curb the murders that flow from adultery, help us reduce the number of broken families and the consequential lost and bitter generation that seems to be on the rise, which in turn cause untold harm to society.

At a press conference called to “clarify” his views, he reiterated that he saw a clear link between “morality” (as he understands it) and sexual behaviour, stating that:

Concerns that cannot be left unattended relate to the effect of religious principles on the right to secure a divorce, the freedom to indulge in adultery and promiscuous fornication.

I am sure many South Africans will claim to agree with this view of morality as espoused by the Chief Justice (even as they fail to live their lives according to it). But in a pluralistic society the moral views of the majority cannot be used to infringe on the rights of others and to rob those who do not wish to adhere to the majority view of their dignity and freedom.

Be that as it may, personally I find the views of the Chief Justice on “promiscuous fornication” and the need for laws to force people to remain married even if they wish to divorce, deeply conservative and objectionable.

This is because religious rules relating to how and with whom we are allowed to have sex function to control and discipline citizens (especially their bodies) and rob them of the freedom to decide for themselves how they wish to live their lives. It imposes the view of some about how we are allowed to use our bodies for pleasure on all of us and robs people of their right to live according to their own beliefs about how to arrange their intimate affairs.

Suggesting that the law should ideally regulate consensual sexual activity and the freedom to enter into and terminate relationships that have little or no bearing on the material wellbeing of people is disrespectful of the freedom of those who do not share your very narrow religious view of morality. It has the potential to interfere with the private choices of individuals and requires the church or the state to have a decisive say over our bodies.

This is potentially devastatingly invasive of the right of everyone to bodily and psychological integrity, which includes the right to make decisions concerning reproduction and to security in and control over their body guaranteed by section 12(2) of the Constitution.

It is therefore difficult to see how the views of the Chief Justice can be accommodated within the current constitutional regime.

Moreover, the morality espoused by the Chief Justice, does not seem to focus on the need to respect the inherent human dignity of every person and the idea that each human possesses moral agency to decide for him or herself how to live their life – as long as this does not harm others.

Instead, it seems to lean towards the view that the law as well as the power and authority of the state should be deployed to inculcate a specific religiously inspired morality in citizens.

In this regard the argument put forward by the Chief Justice that principles sourced from all religions could be infused into a “national moral code that could be taught at home and school from a tender age all the way up to adulthood” is particularly worrying. It is also intellectually incoherent as it directly contradicts other statements made by the Chief Justice in his speech.

In Stellenbosch the Chief Justice referred to the fact that the Constitutional Court has embraced the notion of South Africa as a pluralistic society. He even quoted the Court’s judgment in Prince where it stated that: “The protection of diversity is the hallmark of a free and open society.”

But once you recognise that our Constitution demands protection of this diversity – including diversity related to religious and other beliefs such as the belief not to believe in any God – it is intellectually incoherent to then argue that a very narrow conception of religious morality should influence laws that regulate the private and intimate lives of citizens. It is also incoherent to argue that certain religious values should be infused in a national moral code, which should be used to indoctrinate vulnerable children.

A society that respects diversity cannot enforce or propagate a narrow religiously inspired moral code on society as a whole. Instead, a society that respects diversity will celebrate difference – also different attitudes about morality.

For example, for some a “moral” society will be a society which censors and regulates the sexual activities of citizens and emphasises the moral superiority of monogamous marriage between one man and one women (and maybe two and a half children and a dog) till death do them part.

For others a “moral” society may be a society in which individuals are free to decide for themselves (without interference from the state) how to arrange their consensual, private, intimate affairs and in which we all fight to eradicate social injustice and economic inequality.

Because of these vastly different conceptions of what is good and moral, a society in which diversity is respected cannot enforce or promote a uniform moral code as the Chief Justice suggested.

Moreover, the view that religious values should influence laws and the interpretation of the Constitution is also in direct conflict with the precedent developed by the Constitutional Court.

In the Fourie judgment (ironically, perhaps, dealing with the need to recognise same-sex marriage), the Constitutional Court in no uncertain terms rejected the argument that religious beliefs should form the basis of legal regulation, stating as follows:

It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is quite another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some as a guide to the constitutional rights of others. Between and within religions there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.

It is exactly because there is no universally accepted set of moral norms – religious or otherwise – on which any court can rely that the South African Constitution (not any set of religious beliefs) serves as the source of our constitutional morality.

We have a choice: either we amend the Constitution in order to ensure that the religious beliefs of some become the moral loadstar for legislation and constitutional interpretation – thus rejecting any accommodation of diversity – or we stick with the constitutional values which celebrate religious and other forms of diversity and respect for human dignity and prohibit the law from enforcing the narrow religious morally inspired beliefs of some on the whole of society.

If you favour the first route, the Chief Justice is your man. If you favour the second, well, then his speech will make you extremely nervous.

Hoffman’s complaint: why it was dismissed

The Judicial Conduct Committee this week dismissed a complaint by Adv. Paul Hoffman against Chief Justice Mogoeng Mogoeng stemming largely from a speech the Chief Justice made on judicial transformation. As the compliant was based on shaky legal grounds, this, I contend, was the correct decision to reach. Here is why.

My inbox is flooded by emails of people asking for free legal advice. A few of these emails contain heartrending stories of injustice and human rights abuses. Many more contain rambling, vague and often paranoid complaints about often non-existent abuses of human rights. Judging from the latter kind of emails there are quite a few delusional narcissists out there who keenly believe that they are being persecuted and that the world would come to an end if the persecution is not stopped.

It is not always easy to distinguish between the former and the latter kinds of emails. Those who suffered real harm are sometimes inarticulate and unable succinctly to focus on the relevant facts. Those who are merely delusional can sound very convincing.

Which brings me to the dismissal of the complaint lodged against Chief Justice Mogoeng Mogoeng by the Institute for Accountability’s Paul Hoffman. Allegations of misconduct by the Chief Justice will alarm many people – especially given the controversial manner leading to the appointment of the Chief Justice. But such allegations can also be spurious, stemming from the unexamined fears and preconceptions of the accuser, and may not be based on plausible legal grounds.

It is therefore important to analyse the allegations made by Adv. Hoffman and the manner in which the panel of the Judicial Conduct Committee (JCC) dispensed with them to ascertain whether we are dealing here with a serious matter that threatens the independence and integrity of the judiciary or merely with an egotistical but entirely harmless set of allegations properly dismissed by the JCC.

The complaint was dealt with in terms of the relevant provisions of the Judicial Service Commission Act. The Act – amended in 2008 – now provides for an elaborate mechanism to deal with complaints against judges. At the heart of this mechanism lies the principle that it is always better for judges to be directly involved in determining the merits of such complaints against fellow judges in order to safeguard the independence of the judiciary and the integrity of the complaints process.

Section 17 of the Act therefore states that whenever the Judicial Service Commission (JSC) receives a complaint against a judge which may, if proven, amount to a serious but non-impeachable transgression by that judge, a member of the Judicial Conduct Committee (JCC) must investigate the complaint in order to determine the merits of the complaint.

The JCC – in effect a subcommittee of the JSC – is composed of the Chief Justice, who is the Chairperson of the Committee; the Deputy Chief Justice; and four judges, at least two of whom must be women. But where a complaint is against the Chief Justice he must recuse himself. Adv. Hoffman’s complaint was duly referred to two members of the JCC – Judge President HMT Musi and Judge C Pretorius – who decided the complaint was entirely without merit. A study of the reasons given for this decision suggests (to me at least) that the complaint may have had more to do with the personal animus between the Chief Justice and Adv. Hoffman than with high principles regarding the integrity of the judiciary.

Section 14(4) of the Judicial Service Commission Act sets out the grounds upon which any complaint against a judge may be lodged. These grounds include, amongst others, incapacity; gross incompetence; gross misconduct; a wilful or grossly negligent breach of the Code of Judicial Conduct; or any other wilful or grossly negligent conduct that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.

The complaints lodged by Adv. Hoffman were dismissed as not implicating any of the grounds listed in section 14(4). There was therefore no case to answer by the Chief Justice.

First, the Chief Justice was found not to have breached the Judicial Code of Ethics which prohibits a judge from engaging in a public debate about a case and from participating in public debate about matters relating to the judicial profession in a manner that would undermine the integrity of the judiciary.

This was so, because the “frankly expressed” remarks of the Chief Justice was not on the subject of the merits of a particular case but about judicial transformation, a practical, on-going issue that has been debated for a long time and will continue to be debated by judges and members of the public alike. The Code, it was found, clearly did not prohibit any judge from engaging in such a debate – although remarks made by the Chief Justice “were bound to sit uncomfortably with sections of the legal profession and the judiciary”.

This seems to be just about right to me. To hold otherwise would have had an enormously chilling effect on judges and would have made it almost impossible for judges ever to give public speeches on anything but the most anodyne topics. I, for one, would have never made the effort again to organise an annual human rights lecture, knowing full well that the judge I invited would not say anything remotely interesting.

Secondly, the argument that the Chief Justice had brought the judiciary into disrepute because he involved himself in the “politics and policy aspects of affirmative action measures in a manner unbecoming to a judge” was similarly dismissed. As the panellists of the JCC pointed out, the matter of judicial transformation is a matter of great public interest. The JSC, headed by the Chief Justice, has been embroiled in controversy about its role in giving effect to judicial transformation and the supposed non-appointment of white males to the judiciary.

It was, found the panel of the JCC, impossible for the Chief Justice to avoid talking about the matter and he was therefore perfectly entitled to participate in the discussions about the transformation of the judiciary and the legal profession. Because this touches on sensitive constitutional issues of race and gender, the debate was bound to have political connotations.

It seems to me this finding must be right. The boundary between law and politics can at best be described as a porous one. Almost all legal questions (well at least the legal questions that I am interested in) have political connotations. For example, questions about how a company should be managed in terms of the companies act can be profoundly political, implicating one’s view on capitalism, exploitation of workers and a number of other highly politicised issues.

Similarly, whether the law should recognise the unequal bargaining power between consumers and companies who they enter into contract with, is a profoundly political question, implicating the economic ideology of the participants. Surely this cannot mean that a judge should never make any statement about the role of the Constitution in transforming the law of contract (or the Company Law, for that matter) to eradicate the inherent injustice in the capitalist, laissezfaire inspired fiction that freedom of contract exists between two inherently unequal parties?

The one aspect of Adv. Hoffman’s complaint that may have appeared plausible, relates to words alleged to have been uttered by the Chief Justice towards Adv. Hoffman in The Hague earlier this year. The alleged words – “you can continue to challenge me but you will continue to be frustrated” – if indeed uttered, seemed to have been the result of an ongoing and increasingly acrimonious dispute between the Adv. Hoffman and the Chief Justice.

Adv. Hoffman had, according to his own admission, written to the Chief Justice to demand clarity from the Chief Justice on his fitness to hold office. As the panel pointed out, this was a rather startling thing to do. I am not aware of any lawyer ever having done so before in the history of South Africa – including during the apartheid era. Anyone is entitled to lodge a complaint against any judge with the JSC – but engaging a judge – including the Chief Justice – in a private correspondence in which one alleges he is unfit for office seems to have displayed a rather startling lack of decorum.

As the panel pointed out: “It is indeed shocking to hear that an advocate could write letters to a sitting judge demanding that the judge explains his fitness to hold office.” In any case, in the absence of knowledge of the broader context in which the words were uttered it would be impossible to know what was meant by the words. At the very least there was no indication that the words was meant to refer to cases being heard before the court and not to the various efforts made by Adv. Hoffman to ridicule and humiliate the Chief Justice.

In my humble opinion, it might well be that a more astute, unflappable and emotionally generous judge would not have used the words that the Chief Justice was alleged to have used. It might also be that, given the political setting and the obvious contempt in which Adv. Hoffman holds the Chief Justice, it was a strategic blunder on the part of the Chief Justice not to hold his tongue. But I would have been rather surprised if fellow judges of the JCC had found that these words constituted a breach of conduct prohibited by section 14(4) of the JSC Act.

Mogoeng v Hoffman: Better not to roll around in the mud with the pigs

The unseemly and racially charged row which has erupted after Paul Hoffman laid a complaint against chief justice Mogoeng Mogoeng at the Judicial Service Commission (JSC) for remarks the chief justice made about judicial transformation provides a textbook example of the manner in which race often colours our judgment and determines how we view a specific event. Whenever the matter of racial transformation is raised, most protagonists become blind and deaf to reason, choosing racial solidarity over rational debate and critical reflection.

In his (now infamous) address to Advocates for Transformation, chief justice Mogoeng Mogoeng delivered a spirited defence of the JSC, while also arguing for the need to change briefing patterns to help open up the legal profession to more women and black South Africans. He also pointed out – correctly in my view – that “standards” are often invoked by those who oppose transformation in a blatantly racist manner that associates high standards with white men and a lowering of standards with the opening up of the profession to women and black South Africans.

The chief justice did not say anything that many of us have not been saying and writing for ages.

Paul Hoffman of the Institute of Accountability (which I thought consisted of no more than one man and a fax machine, but whose website indicates that a gaggle of white men and women are associated with it), took umbrage at these remarks, arguing that the chief justice had brought the judiciary of South Africa and the high office which he holds into disrepute because he had descended into the arena of contestation and controversy in respect to issues which are pending in the High Court.

But upon closer inspection of the complaint against the chief justice, the real complaint is not that he forcefully (and undiplomatically) spoke about judicial transformation. After all, our judges often speak out about controversial legal issues. Just two weeks ago I lauded the late justice Pius Langa for a speech he made in Stellenbosch in favour of “transformative constitutionalism”, a highly controversial and contested concept. No one complained when Langa made this speech, perhaps because it dealt more broadly with transformation and did not directly threaten the interests of the white men who remain the largest financial beneficiaries of the legal profession.

In the past, other judges have been lauded for speaking up about the need to respect the rule of law, for example. As far as I know, no one lodged a complaint with the JSC against a judge for doing so. A senior judge even has his own TV programme in which he quizzes panellists about highly controversial political matters. Hoffman, as far as I’m aware, has not lodged a complained about any of these judges with the JSC.

One might argue that this instance is different because the issue of whether the JSC implements its section 174 mandate in a constitutionally valid manner might still come before the Constitutional Court. But this does not seem like a plausible argument, as the chief justice (as head of the JSC) would have had to recuse himself from hearing such a case in any event. He was therefore never going to hear a case dealing with the JSC, whether he said anything about its work in public or not.

This suggests that the disagreement is not about a profound matter of principle (should a judge ever comment on a controversial constitutional issues) but rather about the ideological substance of the views expressed by the chief justice. This disagreement is, of course, fuelled by self-interest and by the protection of the status quo. Judges can speak up, the attitude seems to be, as long as they say what we want them to say and do not say anything that threatens our financial and other interests.

According to Hoffman’s complaint, the remarks of the chief justice are premised on an untenable legal interpretation of section 174(2) of the Constitution, a section which requires the JSC to take into account the need for the judiciary to reflect broadly the racial and gender composition of South Africa. According to Hoffman, these remarks conflicted with the provisions of section 9 of the Constitution, which proscribes “unfair discrimination against ‘white’ male lawyers”.

This is, of course, uninformed nonsense. Whatever one may personally think of the merits of race-based redress measures (and I know the usual suspects will froth at the mouth and spew entirely uninformed nonsense about equality and discrimination after reading this column), no one with even a modicum of knowledge of the Constitutional Court jurisprudence of section 9 of the Constitution will be able to argue with a straight face that robust measures to transform the racial and gender composition of the judiciary in line with section 174 of the Constitution (read with section 9, especially section 9(2)) are constitutionally impermissible.

(Here is a dare: why doesn’t anyone tempted to comment on issues of race-based affirmative action first read and study the Constitutional Court judgment of Minister of Finance v Van Heerden? Once they have done so, I promise to engage in a reasoned and calm discussion with them on whether our Constitution endorses such forms of affirmative action.)

What the chief justice said about the transformation of the judiciary might upset some people. But it is not constitutionally controversial. Only the blind, the dishonest or those who are completely ignorant of the relevant judgments of the Constitutional Court (and of the wealth of academic literature on affirmative action written by both traditional liberal scholars like Ronald Dworkin, and by more progressive legal scholars) will claim otherwise.

The principles enunciated by the chief justice are therefore entirely uncontroversial (at least for the well informed). Of course, whether the JSC in fact always fulfils this constitutional mandate prudently and with the necessary wisdom to ensure the long-term legitimacy of the judiciary is another matter. Reasonable people can differ on this point.

Once we have all accepted that the Constitution not only allows, but requires, the JSC to pay regard to race and gender equity when it makes appointments to the bench, and that the legal profession has a special duty to advance transformation in the profession in order to safeguard the legitimacy of the judiciary (also by reviewing briefing patterns, as I have argued on numerous occasions), we could begin to have a productive debate about how the JSC should fulfil this mandate, and whether it is currently doing so in a astute and sensible manner.

By laying a complaint against the chief justice because he forcefully argued in favour of race and gender transformation of the judiciary, Hoffman muddied the waters and made it more difficult to have a real, reasoned, and level headed discussion about what the JSC is doing right, and what it is doing wrong.

This does not mean that I think the chief justice did himself any favours when he couched his valid concerns in such highly emotive language, indulged in sweeping generalisations and attacked unnamed individuals and groups. Nor was it helpful that he expressed what appear to be anti-democratic sentiments when he referred to those who disagree with him as indulging in an “illegitimate neo-political campaign” (whatever a neo-political campaign might be). In a democracy, people have a right to talk nonsense, so calling what they say illegitimate displays a rather worrying lack of respect for freedom of expression.

A wise judge always deals with specifics, not vague conspiracy theories. A wise judge – one of stature – does not insult unnamed NGO’s and commentators, but demolishes specific remarks and specific arguments made by commentators or NGOs with calmness, understatement and cold reason. He or she eschews emotional language and couches trenchant criticism in a diplomatic manner.

Such a judge understands that his or her stature as a judge grows when his or her remarks rise above the petty politics and narrow self-interest that people like Paul Hoffman wallow in. When you roll around in the mud with the pigs, you are going to get dirty. A wise judge knows this and avoids getting down with the pigs. He or she also knows that one’s stature as a judge is diminished if one appears to take criticism too personally and if one is too thin skinned.

Of course, it is not an impeachable offense for a judge to make a speech on a politically charged matter relating to the Constitution. The rule of law is a highly politically charged matter, as most Marxists will argue, but few of us would raise an eyebrow if a judge forcefully defends the rule of law in a speech before lawyers. Neither is it an impeachable offense to use emotive language when doing so. It might be unwise and counter-productive. But impeachable? Please, don’t make me laugh.

Luckily for the chief justice, the anti-transformation complaint lodged against him by Hoffman in defence of the (financial and other) interests of some white men detracted attention from the rather undiplomatic and otherwise stature-diminishing tone of the speech. Ironically, by attacking the chief justice and lodging a complaint, Hoffman enhanced the credibility of chief justice Mogoeng in the eyes of many of us. In fact, maybe justice Mogoeng should think of hiring Hoffman as his PR representative.

Such are the politics of race and redress in South Africa.

In a world in which racism is deeply entrenched and in which the power and privilege of whiteness perpetuates and defends itself aggressively, it is difficult for most of us to choose sides in favour of white privilege (read, Hoffman). That is why we choose the side of the chief justice, even as we acknowledge that he could have presented his argument in a manner that displayed more wisdom, high-mindedness and maturity.

Sharp divisions on the Constitutional Court about the right to strike

In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.

Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.

In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.

Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.

For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.

As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:

The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.

It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.

This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:

to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.

The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.

In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:

if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?

The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”

The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.

The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.

The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.

Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.

The good news from “Dr” Molapo and “Dr” Maxwell

Some examples of what judges would have had to endure if they had attended the “Leadership Conference”, which they were urged to attend by Chief Justice Mogoeng Mogoeng. All I can say is that I am glad I did not have to attend this event. Apart from the lack of fashion sense displayed by the speakers, I would have felt pretty insulted for being sold this quackery and having had to PAY to attend to listen to it.

First up, “Dr” David Molapo:

Second up, “Dr” John Maxwell

Chief Justice instructs judges to attend Christian leadership money spinner

When Justice Mogoeng Mogoeng was “nominated” as Chief Justice by President Jacob Zuma some of us argued that, while it was perfectly normal for a judge to profess his or her religious views (or to be an atheist for that matter), Justice Mogoeng’s continued involvement (as a lay preacher) in a Church that held views that conflicted directly with the provisions of the Bill of Rights would be inappropriate. Now the Mail & Guardian reports that the Chief Justice has used his position as Chief Justice to try instruct senior members of the judiciary to attend a “leadership conference” held by an American evangelist.

The email sent on his behalf reads as follows:

From: Moekoa Desmond On Behalf Of Sejosengwe Memme
Sent: Tuesday, March 06, 2012 2:48 PM

To: Judge Mogoeng Mogoeng (Contact); Mpati Lex; Ngoepe Bernard; Mthiyane Khayelihle – Judge; Hlophe J – Judge; Musi Hendrick; Mlambo Dunstan; Leeuw Monica; Kgomo Diale; Sangoni Clement – Judge; Davis Dennis; Patel Chimanlal – Judge; Meer Yasmin

Cc: ‘Khwezi Mabaso'; Ngakantsi Boitumelo; Etsebeth Ilonka; Sheldon Astrin; Van Niekerk Sandra; Lemmetjies Gaynor; Mogotsi Reetsang; Malgas Ncumisa; Martin Heidi Deidre; Bihl Rowena; Raleie Motsholathebe; Morar Devika; Opperman Liezl; Motsepe Caroline; Molapo Emily Motlhatlego; Sejosengwe Memme

Subject: Leadership event with Drs John Maxwell and David Molapo

Honourable Judges President/ Heads of Court

Kindly see the attached invitation for your urgent attention. By the direction of the Chief Justice, Heads of Court/Judges President and their Deputies or the most senior judge in the divisions where there are no Deputy Judges President, are hereby requested to be available for the above-mentioned leadership conference.

It will be appreciated if confirmations for attendance can be submitted to the secretariat by end of business on 07 March 2012.

With kind regards

Memme Sejosengwe (Ms)
Secretariat: Heads of Court Forum
Judicial Court Services, Office of the Chief Justice

The flyer for this event depicts the smarmy faces of several blow-dried evangelicals who would be involved in this “leadership conference” hosted by the Hope Restoration Ministries. The conference cost R650 to attend but one is promised 7 DVD’s and a CD as well as a participants manuel if one attends. The flyer, in true commercial style, states that the “total package value is R2745 and that one will saveR2095 if one made use of this special offer.

Even if this event had nothing to do with the promotion of a particular evangelical Christian world view, it would be entirely inappropriate for the Chief Justice to ask senior judges to attend as it is a private business venture and by “requesting” senior judges to make themselves available for this event the Chief Justice is promoting private business interests.

It is also even more inappropriate in a country like ours where people of diverse religious beliefs serve on the bench, for a Chief Justice to send such a “request” to the leadership of the judiciary. More so because this event is a money-making racket for a set of evangelical Christians. Dr John Maxwell says that one must: “Stay focus[ed] on what God has assigned me to do. Keep my mind on what I am doing,” while the Constitution enjoins judges to stay focused on what the Constitution and the law has assigned them to do.

Imagine a senior judge had sent a similar instruction to attend a Muslim “leadership conference” or one hosted by Richard Dawkins, the avowed atheist. It would rightly have created a storm of protest as it would have signalled that the Chief Justice is attempting to influence members of the judiciary to come around to his way of thinking on religious matters. This is no different.

As judges are enjoined by the Constitution to act impartially and without fear, favour or prejudice and as the Constitution does not require judges to embrace a form of evangelical Christianity in order to do their job and as the Chief Justice is not empowered to use his position as Chief Justice to try and advance a business venture of a commercial enterprise, this email is deeply troubling.

Any judge in South Africa can hold any views about religion that he or she wishes. He or she can be a member of the Catholic Church or a devout attendee of Dutch Reformed Church services, can be an atheist, a Hindu or a Muslim or can believe that there is no god at all. What that judge is not allowed to do is to use his position to promote a commercial venture, one that is being run by a person with a particular view of Christian religion.

At the very least the Judicial Service Commission (JSC) should censure the Chief Justice for abusing his office to advance a business venture and for trying to promote a certain religious view within the judiciary. Section 165 states, inter alia that:

4. No person or organ of state may interfere with the functioning of the courts.

5. 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.

To assist and protect the courts to ensure their independence, impartiality and dignity the JSC has a Constitutional duty to take steps to ensure that this abuse of office never happens again. If they do not, there is a danger that the CHief Justice will again use his position to further a specific evangelical business venture, tarnishing the dignity of the office of the Chief Justice and sending a signal that our judiciary serves not all the people of South Africa but only those who adhere to a specific evangelical Christian view of the world. This would fundamentally erode the independence of the judiciary which is guaranteed not only on formal protections but also by ensuring that the perception does not take hold that members of the judiciary act with a specific religious agenda when it hears cases.

When silence should not be an option

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister – all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about  his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy  and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

On freedom of expression and the censorship of magazines

When Chief Justice Mogoeng Mogoeng was nominated to that position, it was revealed that he happened to be a pastor in a Church that propagated hatred against certain segments of society and also espoused views that were so bizarre and so blatantly untrue that it would be difficult for a reasonable person of moderate intelligence not to conclude that the Church is run by a bunch of money-grabbing charlatans.

Although some questions were asked about his membership of this Church (whose doctrine might even be more bizarre than, say, the doctrine of the Dutch Reform Church, where a decision was recently taken that believing in the Devil was optional but that dominees had the right to drive out the very Devils their fellow dominees had a right not to believe in), the members of the Judicial Service Commission (JSC) hardly gave him a grilling on issues which really mattered: his judicial philosophy and his knowledge and understanding of the Constitution and the jurisprudence of the Constitutional Court.

No one asked the nominee whether he agreed with the Justice Moseneke or Justice Mokgoro judgments in the Van Heerden case (which dealt with affirmative action in marginally different ways); or whether he agreed with Justice Sachs and O’Reagan or with Justice Skweiya in the Volks v Robinson case (dealing with the rights of unmarried long term heterosexual partners); or whether he agreed with the reasoning of Sachs in the Fourie judgment (on same-sex marriage).

Neither did anyone ask Justice Mogoeng how he would explain the difference in approaches taken by the Constitutional Court in the Mazibuko case (dealing with  an unsuccessful challenge to the installation of pre-paid electricity meters) and the Joseph case (in which the court declared invalid the cutting off of electricity); or whether he believed that freedom of religion should always trump the right not to be discriminated against and if not, on what basis one should decide when the one right trumped the other; or whether he believed that the value of ubuntu (not actually found in the text of the 1996 Constitution) should sometimes trump the right of freedom of expression and if so according to what set of criteria.

(This is not a criticism of the Chief Justice. After all, he had no obvious choice in what members of the JSC would ask him and, for all I know, he might have answered all the proposed questions in an intelligent and enlightening manner. Rather it is a criticism of the members of the JSC, who has seldom asked informed and intelligent questions of candidates appearing before them.)

As a result, although we now know that our new Chief Justice does not take kindly to criticism, we have no clue whether he has the requisite knowledge of the constitutional jurisprudence of South Africa required to be a passable Chief Justice. Nor do we know whether he has the ability to analyse complex constitutional issues in a nuanced, intelligent and principled way.

Well, a test case will reach the Constitutional Court next year that might well reveal something about the values and legal abilities of our new Chief Justice (if – unlike in the Dey case – he decides to write a judgment in this case at all). Last week the South Gauteng High Court, in a judgment written by Judge R Mathopo, declared invalid recent amendments to the Film and Publications Act in the case of Print Media South Africa and Another v The Minister of Home Affairs and Another. The declaration will now have to be confirmed or rejected by the Constitutional Court.

The newly amended section 16(2) of the Film and Publications Act requires any publication – except newspapers who fall under the press ombudsman – to submit themselves to pre-publication censorship with the Film and Publication Board if their publication contains “sexual conduct” which, inter alia, violates or shows disrespect for the rights to human dignity of a person; degrades a person or advocates hatred. Sexual conduct is widely defined in the Act to include all kinds of depictions (and, seemingly, descriptions) of sexual situations. A failure to submit to pre-publication censorship would constitute a criminal offense in terms of section 24A of the Act.

Unfortunately the amendments to the Films and Publications Act were very badly drafted, to say the least, and there was some dispute between the parties about whether section 16(2) would apply to magazines and novels containing descriptions or allusions to sexual conduct or only to publications that contained actual visual depictions of said sexual conduct.

The applicants argued that it did refer to both types of depictions of sexual conduct and provided examples from various novels and magazines like Huisgenoot, Drum and You and foreign magazines like Vanity Fair, Time, and The New Yorker (only one of which I, admittedly, personally subscribe to) to demonstrate that these publications included descriptions of sexual conduct that complied with section 16(2). The High Court agreed with this view, suggesting that the publisher of widely read novels (such as Disgrace, say), and any number of other award winning works of fiction would be required to submit the work to the Film and Publication Board for pre-publication classification or censorship.  

The Minister argued that even if this was so, this did not constitute an infringement on freedom of expression because in most cases the magazines or novels would not be prohibited, but would only be properly classified, which would allow it to be sold in the correct venue under the right conditions. This would be done to protect children and to assist adults to make informed choices about what kind of depictions of sexual conduct they wished to be exposed to when they read smutty magazines like the New Yorker or smutty novels like Disgrace.

Although the judgment is not a model of clarity and coherence, it finds (as far as I can tell) that these sections would indeed impose a severe restriction on the right to freedom of expression of everyone in society. As there was no indication how long it would take before pre-publication classification would be concluded and as practical considerations might well force publishers to censor themselves before they even publish anything, the freedom of expression of everyone would be drastically interfered with by this section. This amounted to prior restraint, which was severely criticised by the Supreme Court of Appeal in the Midi Television judgment.

It is a constitutional imperative that society or public must receive current or fresh news as soon as possible. Any delay because of bureaucratic means amounts to a limitation on freedom of expression….. News is a perishable commodity and to delay even a shorter period may well deprive it of its value and interest.

Democracy cannot survive in the absence of freedom of expression and while the right is not absolute there are other, less restrictive, means that could have been used to achieve the goal of protecting children. For that reason these sections were declared unconstitutional.

The Constitutional Court will now have to decide whether the High Court was correct to give this broad interpretation to section 16(2) of the Act and whether the infringement on freedom of expression sanctioned by this section was justifiable in terms of the limitation clause.

I would imagine that for individuals and judges who strongly believed that God would judge one harshly if one allowed society to degenerate into a cesspit of pornography and gratuitous descriptions of sexual lust, this section would come as a godsend, so to speak.   For those who believed that sex was often a dirty thing, that sexual conduct should only happen between one man and one women who are married in the eyes of God and wanted to make babies for Jesus, and who believed that through prayers a baby could be brought into the world after the mother had been pregnant for five years and seven months, section 16(2) of the Act might appear rather benign. After all, one might argue that the limitation on freedom of expression imposed by this section could be justified in order to protect the broader society from the evil and disgusting depictions of sex in smutty magazines like The New Yorker.

But for individuals and judges – people like judge Mathopo and the long line of judges from the Constitutional Court – who embrace the notion that freedom of expression is at the heart of a vibrant democracy and that pre-censorship would only be justifiable in the most extreme cases, this section would clearly be overbroad and not justifiable.

It will therefore be interesting to see how the various judges of the Constitutional Court deal with this case.

Malema judgment: A re-think on hate speech needed

There are many interesting as well as perplexing aspects to the judgment handed down today by Justice Colin Lamont in the South Gauteng High Court in which he found that Julius Malema had engaged in hate speech when he sang the song “Awudubula (i) bhulu… Dubula amabhunu baya raypha” (translated as “shoot the Boer/farmer”, “shoot the Boers/farmers they are rapists/robbers”).

The first aspect of the judgment that struck me is the fact that this judgment gestures towards some aspects of the philosophy purportedly espoused by our new Chief Justice, Mogoeng Mogoeng. Judge Lamont invoked the notion of ubuntu (just like justice Mogoeng did in the McBride case earlier this year) to help justify the drastic limitation on the freedom of expression of all South Africans. For judge Lamont (as for justice Mogoeng), the protection of dignity and adherence to the values of ubuntu requires a radical limitation on the right to freedom of expression.

It is a drastic limitation because Judge Lamont did not only find that the singing of the song by Julius Malema in specific contexts constitutes hate speech. Instead he ordered that both Julius Malema and the ANC be interdicted and restrained from singing the song known as Dubula Ibhunu “at any public or private meeting held by or conducted by them”. It is not clear how an organisation as such could be interdicted from singing a song as one would have imagined that the ANC (not being a person) cannot sing a song and that only members of the ANC could be interdicted in this way. I would therefore assume that the order interdicts any ANC member from singing the song — even at a private meeting or gathering of its members.

This means that if ANC members congregate at a party at which they reminisce about the struggle days and one of its members then sing this song, that person will be in contempt of this ruling and might be found guilty of contempt of court. This, in my opinion, constitutes a rather absurd and drastic infringement on the right to freedom of expression not warranted by the Equality Act — even given the broad provisions of that Act.

Judge Lamont also found that the “morality of society dictates that persons should refrain from using the words” and  “singing the song” and seemed to suggest that anyone singing the song could well be found to have contravened the hate speech provision in the Equality Act, arguing that:

Persons who are not parties to the proceedings must be dealt with by way of structuring the order so that society knows what conduct is acceptable. Persons who are aware of the line which has been drawn by the Court are as a matter of both law and ubuntu obliged to obey it. There may be no immediate criminal sanction. Their breach of the standard set by this Court will however surely result in the appropriate proceedings under the Equality Act being taken against them. Non participants are bound by orders setting such standards. The Equality Act contemplates that they will be so bound. The orders of the Court which set the law are no different from any order of any Court which determines what the law is. The course open to a non participant who is aggrieved is to try to persuade the Court hearing his particular matter that the order of the other Court is clearly wrong.

In doing so, Judge Lamont relied on the majority judgment in the controversial Dey judgment (a judgment which Chief Justice Mogoeng – as well as Deputy Chief Justice Moseneke, it must be said — signed on to), to argue that in order to determine whether hate speech occurred one must take into account how the words would have been interpreted by various audiences. In the Dey judgment, the Court stated that:

It may be accepted that the reasonable person must be contextualised and that one is not concerned with a purely abstract exercise. One must have regard to the nature of the audience. In this case the main target was the school children at the particular school, but it also included at least teachers.

This means, according to judge Lamont, that where some South Africans (who would largely, but not exclusively, be black) would not reasonably construe the song to have had the intention to be hurtful to whites, but others (who would largely, but not exclusively, be white) would indeed do so, “each meaning must be considered and be accepted as a meaning…. If the words mean different things to different portions of society then each meaning, for the reasonable listener in each portion of society, must be considered as being the appropriate meaning”. In this way the judgment avoided dealing with a difficult legal problem, namely that the song would be viewed differently, depending on the audience. He could thus dispense with the requirement to establish how a reasonable South African (as opposed to a reasonable white or black South African) might view the impugned words.

Flowing from this is a second aspect of the judgment that might elicit adverse comment. Judge Lamont divided South Africa into the majority and a minority and suggested that minorities (defined as white South Africans or as white Afrikaners) are therefore in particular need of protection from words that could be construed as having the intention to be hurtful to that minority. Hinting that white people might well in the future be in danger of facing a genocide, Judge Lamont stated that:

It must not however be forgotten that minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people. Minorities have no legislative or executive powers and are compelled to approach the Court to protect their rights. They are particularly at risk due to the expense involved in such approaches. The fact that they are minorities and experience such difficulties frequently results in them being driven to protect their identity by invoking and enforcing within their group, customs practices and conventions which are believed to be appropriate. In addition, they are fragile in that they are readily assumed by the mass and lose their identity. A Court which hears a matter must, while balancing the rights in question take into account in the construction of what hate speech is the fact that it is directed at a minority.

This means that religious and sexual minorities, say, might be entitled to special protection in terms of this Act and that a court should take note of the sensibilities of such groups when they judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific communication as having the intention to be hurtful to them as Muslims or as homosexuals. Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also, most probably, constitute hate speech if this line of reasoning is followed. I am also fearful that if I were to call devout Christians “bigots” because of their views on homosexuality, I might be found to have had the intention (judged by these religious fundamentalists) to be hurtful to them and hence that I am guilty of hate speech.

This rather essentialistic and simplistic division of South Africans into different race groups could be viewed as problematic. Instead of dealing with South Africans as South Africans and instead of demonstrating a blindness to race (as required by opponents of affirmative action), the court relied on racial assumptions and stereotypes to justify its finding. One would assume that all the critics of race-based affirmative action would be quick to condemn this judgment on the basis that it invokes apartheid era race categories and assumes that one would have a different reaction to words depending on one’s race and/or the language that one speaks. Surely the principled DA supporters who complain about affirmative action will have to reject this judgment because of its purported unholy valorisation of race?

A third aspect of the judgment that might require a rethink by the legislature is that in terms of the extremely broad definition of hate speech contained in the Equality Act and given the facts of this case, a finding that Julius Malema had engaged in hate speech might well have been warranted on the facts before the court. It seems to me as if Judge Lamont had little option but to find that Malema had contravened the Act. Although the sweeping order made in this case was, in my opinion, not warranted by the wording of the Act, the finding against Malema might well have been warranted — given the way in which hate speech has been defined by our legislature. As Judge Lamont explained:

The message which the song conveys namely destroy the regime and “shoot the Boer” may have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements which established the modern, democratic South African nation and the laws which were promulgated pursuant to those agreements, the enemy has become the friend, the brother. Members of society are enjoined to embrace all citizens as their brothers. This has been dealt with more fully above in the context of the written laws and agreements. It must never be forgotten that in the spirit of ubuntu this new approach to each other must be fostered. Hence the Equality Act allows no justification on the basis of fairness for historic practices which are hurtful to the target group but loved by the other group. Such practices may not continue to be practised when it comes to hate speech. I accordingly find that Malema published and communicated words which could reasonably be construed to demonstrate an intention to be hurtful to incite harm and promote hatred against the white Afrikaans speaking community including the farmers who belongs to that group. The words accordingly constitute hate speech

As the Equality Act – passed by the democratic Parliament – does not allow a court to take into account historical practices, the defence put up by Mr Malema’s excellent legal team held no water in this case. Because the hate speech provision in the Act was drafted in such sweeping terms and because the Act only allows for exceptions in cases of “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution”, the defence of the ANC that this song had to be judged in its historic context was dismissed.

The judgment therefore once again places on the table the question of whether the hate speech provision in the Equality Act is constitutionally valid or not. As I have argued before, I suspect that the hate speech provision in the Act is unconstitutional as it defines hate speech in much broader and open ended terms than section 16 of the Constitution, which merely states that “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” is not protected by the Constitution.

For some reason (perhaps relating to the politics of the case) Mr Malema’s lawyers did not challenge the constitutionality of the hate speech provision in the Equality Act. Whether they will try to raise this issue on appeal remains to be seen. This does not mean that the ANC dominated legislature cannot amend the legislation to bring it in line with the freedom of expression guarantees in our Constitution. In my view Parliament made a mistake when it passed these sections of the Equality Act and there is no reason why they cannot rectify the mistake without waiting for the Constitutional Court to order them to do so.

Maybe this judgment will lead to a re-think on the manner in which our law deals with cases of alleged hate speech. If it does, some good might yet come of it.

The difficult choices facing Chief Justice Mogoeng

The appointment of Chief Justice Mogoeng Mogoeng has elicited much comment, but conceptually the most difficult but also the most interesting aspect of the debate about his suitability for the office of Chief Justice, centres around his obviously sincerely but strongly held religious views. Justice Mogoeng belongs to a church (and is a lay preacher in that church) called Winners Chapel International, which condemns homosexuality as a disease that can be cured. During his interview Justice Mogoeng claimed that God wanted him appointed to the job. He said he prayed and got a sign that “it was the right thing to do”, after President Zuma nominated him.

Section 15 of the South African Constitution states that “[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion”. Should this, then, not mean that the justice Mogoeng’s involvement in his church as a lay preacher and the fact that his church espouses values that are in direct contraventions of Constitution (as the Constitution explicitly protects gay men and lesbians against unfair discrimination and guarantees respect for their inherent human dignity), should not disqualify him to be Chief Justice? After all, if justice Mogoeng cannot become the leader of the judiciary because he belongs to a church which holds deeply demeaning views about a  section of the population explicitly protected by the Constitution, large numbers of judges would be similarly disqualified.

For example, anyone belonging to the Catholic Church, an institution that has its own problems with dealing with child rape and explicitly discriminates against women, would be disbarred from being Chief Justice. And what about members of the Dutch Reformed Church (also known as the NG Kerk), an institution which not so long ago still claimed there was scriptural justification for the policy of apartheid and even today has not managed to unify with its sister churches created during the apartheid era for “coloured” and “african” worshippers? Surely members from these churches should then also be ineligible for the top spot on our judiciary?

Our Constitutional Court has always had difficulty with the matter of religious freedom in cases where it has been called upon to decide how to balance, on the one hand, respect for the religious views and practices of all against, on the other hand, the broader interest of society and the protection of the rights of everyone enshrined in the Constitution. In the Lawrence case, justice Chaskalson, once again borrowing from the Canadian case law, endorsed the view that:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

This right has both an individual and a collective aspect. As justice Sachs stated in the Christian Education case:

This broad approach highlights that freedom of religion includes both the right to have a belief and the right to express such belief in practice. It also brings out the fact that freedom of religion may be impaired by measures that coerce persons into acting or refraining from acting in a manner contrary to their beliefs. Just as it is difficult to postulate a firm divide between religious thought and action based on religious belief, so it is not easy to separate the individual religious conscience from the collective setting in which it is frequently expressed. Religious practice often involves interaction with fellow believers. It usually has both an individual and a collective dimension and is often articulated through activities that are traditional and structured, and frequently ritualistic and ceremonial.But this is not the end of the matter. As is the case with all rights, freedom of religion can be limited.

These passages seem to suggest that someone like Justice Mogoeng should be allowed to believe what he wishes and also to practice his religion by acting as a lay preacher in his church — no matter how homophobic or sexist (and hence in contravention of the Constitution) the doctrine of that church might be — and that he should not be forced to decide between his right to believe and practice his religion, on the one hand, and his job as Chief Justice, on the other hand. If he were to be forced to choose, so the argument goes, this would entail an attempt at coercing  a person not to believe or practice his religion — something not permitted by our Constitution.

But this is not the end of the matter. Like all other rights contained in the Bill of Rights, the right to freedom of religion is not absolute and can be limited. Thus the Constitution requires each judge to swear the following oath:

I, A.B., swear/solemnly affirm that, as a Judge of the Constitutional Court/Supreme Court of Appeal/High Court/ E.F. Court, I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.

It therefore requires all religiously devoted judges who belong to any number of mainstream and not so mainstream churches to choose between being faithful to their religious beliefs or being faithful to the Constitution and the human rights enshrined in it. If an individual cannot promise that he would disobey and completely disregard his personal religious beliefs about, say, the perceived god given rights of the man to head the household or the belief that homosexuality is a perversion and a lifestyle choice that can and must be cured by prayer, that individual cannot — in all good conscience — become a judge at all. That is why justice Mogoeng’s failure to provide reasons for his “dissent” in the Dey case appears so troubling. By dissenting but not giving reasons he might well have tried to obey both his judicial oath and the injunctions of his faith — something that was clearly impossible and impermissible to do.

In the Christian Education case — as in many other cases dealing with questions about legislative limitations placed on religious beliefs and practices — the Constitutional Court reverted to the limitation clause to try and balance the interests of believers against the broader interest of society and against the rights contained in the Constitution. In that case a group of Christian schools challenged the provision in the Schools Act which prohibits corporal punishment at school, arguing that the Christian Bible commands teachers to assault learners when learners have broken the rules as the Bible states that if one spares the rod one spoils the child.

In a sensitive and carefully crafted judgment, justice Sachs found that the case required the court to apply the proportionality test as set out in the limitation clause and that the real question was whether the failure to accommodate the religious belief and practice of some by means of the exemption to the ban on corporal punishment in schools could be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality. As Sachs pointed out, this balancing of interests will often be very difficult in freedom of religion cases and it is worth quoting Sachs’ judgment in this regard at length:

The most complex problem is that the competing interests to be balanced belong to completely different conceptual and existential orders. Religious conviction and practice are generally based on faith. Countervailing public or private concerns are usually not and are evaluated mainly according to their reasonableness. To the extent that the two orders can be separated, with the religious being sovereign in its domain and the state sovereign in its domain, the need to balance one interest against the other is avoided. However religion is not always merely a matter of private individual conscience or communal sectarian practice. Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. Not only do they proselytise through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture.

The result is that religious and secular activities are, for purposes of balancing, frequently as difficult to disentangle from a conceptual point of view as they are to separate in day to day practice. While certain aspects may clearly be said to belong to the citizen’s Caesar and others to the believer’s God, there is a vast area of overlap and interpenetration between the two. It is in this area that balancing becomes doubly difficult, first because of the problems of weighing considerations of faith against those of reason, and secondly because of the problems of separating out what aspects of an activity are religious and protected by the Bill of Rights and what are secular and open to regulation in the ordinary way.

In the Christian Education case, the Constitutional Court found that given the fact that parents could still chastise their children at home, given — further — that the Constitution placed a positive duty on the state to try and create a society free from violence and to protect children from physical and emotional harm, and given the importance of the right of everyone to have their bodily integrity protected and respected, it was not unreasonable to limit the rights of freedom of religion in this limited way. Religious believers who wanted to impose corporal punishment could still do so at home, but the interest of the state to create violence free zones at schools allowed it to ban the practice of corporal punishment in these more public arenas.

I suspect much the same argument could be used regarding justice Mogoeng’s beliefs and his role as a lay preacher in a homophobic church. While he must surely have the right to believe what he wishes about women and homosexuals and why he has every right to be a lay preacher in a church that propagates hatred against homosexuals, he should surely not have a right both to be Chief Justice (requiring him to protect gay men and lesbians from discrimination, hatred and harm) and to remain a lay preacher in his church which does exactly the opposite.

I for one would therefore contend that it would be appropriate for Chief Justice Mogoeng to resign as a lay preacher from his church — at the very least. When it is impossible to serve two gods (the god of one’s religion on the one hand and the “god” that is the supreme Constitution on the other) one surely has an ethical — perhaps even a legal and constitutional — duty to choose the one or the other. If one refuses to choose, one’s integrity and honesty might well come under suspicion.

I am not claiming that such choices will always be easy to make. They will often not be easy at all. Given the sincerity of many people’s religious beliefs (including, clearly, that of Chief Justice Mogoeng), given — further — the often deeply personal and strongly held beliefs many people have about their religion and their church, and given the pull of ambition, status and power that might make contradictory demands on one’s conscience, these decisions might well (in certain cases) be agonising and seemingly impossible to make. But that does not mean that one should not make them if one wishes to live an ethical life.

Thus, if I were ever offered a lucrative position, say, to head a private University in the United States that is funded by the Catholic Church and professes to adhere to the teachings of that church, I will have no choice but to decline that offer — even if it would mean a much larger salary, far more status and more influence and power. Life is not always easy and it is seldom fair — especially to those with strong and inflexible principles and beliefs.

Justice Mogoeng has a difficult choice to make. I trust he will choose well.