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

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.

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