Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
16 March 2011

The silence of Justice Mogoeng

Does a judge have a duty to provide reasons when he or she expressly disagrees with aspects of a colleagues judgement when he or she sits on the same bench as that colleague? Does it matter when the disagreement is on a matter of legal principle that seems settled law? If a judge of the Constitutional Court indicates that he or she disagrees with certain views expressed by one of his or her colleagues, should that judge not provide reasons for this disagreement in the name of transparency and in order to foster a culture of justification?

After all, as the late Prof Etienne Mureinik argued in a brilliant and seminal article in 1994, our new constitutional order provides us with a bridge from a culture of authority to a culture of justification. Do judges of the Constitutional Court not have a special responsibility to justify their decisions so that legal academics, other members of the legal community and the public at large can analyse those reasons and — if appropriate — can critique the judgment of an individual judge and the reasons advanced for that judgment by the individual judge?

When we analyse and critique individual judgments handed down by judges of any court, this serves as an appropriate (if limited) mechanism to hold the judges of the court accountable. This does not mean that judges must or do change their views every time they are criticised by the public or by legal academics. But such critiques generate a dialogue (in which judges always have the final say) and hopefully this improves the jurisprudence of our courts.

In our system, not all decisions made by a judge requires the furnishing of reasons. For example, where the Supreme Court of Appeal declines to hear an appeal they are not required to furnish reasons for their decision in every case. But when a judge of the highest court in the land disagrees with a colleague on what seems to be an issue of trite law, but he or she does not furnish reasons for that disagreement, questions will inevitably be asked about the real motivation behind the disagreement and for the failure to provide a reasoned judgment which sets out the justification for the disagreement.

In the case of Le Roux and Others v Dey, the Constitutional Court judgment, which sharply divided between a minority judgment written by Yacoob J and two majority decisions (one written by Brand AJ and one written by Cameron and Froneman), the judgment is preceded by a summary of the various positions taken by the various judges in the case. What caught my eye in this summary was the short sentence in paragraph 9 of this summary which states that all members of the Court endorsed the exposition in the judgment of Froneman J and Cameron J about apology “and, save for Mogoeng J, regarding expression about constitutionally protected groups (paras 181 to 189)”.

Paragraph 181 of the Froneman and Cameron judgment states that:

It is correct, as counsel for the applicants emphasised, that Dr Dey found it objectionable that the image associates him with two men portrayed as engaging in same-sex conduct.  Counsel also emphasised that the Constitution discountenances anti-gay sentiments.  He suggested that Dr Dey’s claim should for this reason fail.

Paragraph 189 states that:

The image showed Dr Dey’s face on a naked body in a sexually compromising position, being photographed.  The affront this caused to his feelings is in our view actionable.  The wounded feelings relate to constitutionally sanctioned and protected personal choices, and are legally compensable.

My first impression of these two paragraphs is that anyone who embraces the constitutional injunction that one has to respect the equal dignity of all — regardless of the sexual orientation of the person — would have no problem with the content of these two paragraphs. I might be wrong, but these paragraphs do not seem particularly controversial — given the jurisprudence of the Constitutional Court on sexual orientation discrimination.

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the brief throwaway line in the court’s summary of the judgment quoted above therefore suggests that Justice Mogoeng does not agree with the long line of precedent on sexual orientation discrimination.

This perception may be wrong. I might have misinterpreted the meaning of the paragraphs quoted above. Besides, there may be very good reasons why Justice Mogoeng does not agree with the statement that our Constitution does not favour anti-gay sentiment. It may also be that Justice Mogoeng disagrees with the statement that choices about engaging in same-sex sexual behaviour are protected by the Constitution not because he does not respect the human dignity of gay men and lesbians but because of some other — as yet unstated — reason.

The problem is that Justice Mogoeng did not provide us with such reasons. There is no separate judgment provided to explain the position of Justice Mogoeng. It is therefore impossible to analyse or critique his stance or to say what motivated it. No one can say whether he or she ought to agree or disagree with Justice Mogoeng or with the other judges of the Constitutional Court.

Justice Mogoeng has in effect managed to avoid scrutiny of his views by the legal community and by the public. While this means he has avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy, there might be good reasons for this. But as these reasons were not provided, it is not possible to have an informed and reasoned discussion about it.

In the absence of reasons one may well wonder what Justice Mogoeng’s views are about the rights of gay men and lesbians protected by our Constitution. One may wonder whether he believes that the prohibition on unfair discrimination on the basis of sexual orientation enshrined in our Constitution should be ignored or subverted by the judges on the Constitutional Court and whether he believes that he is bound by the precedent set by the Court in a long line of previous cases. But as no reasons were given, one would not be able to engage in a reasoned and responsible discussion on this disagreement.

The fact is that we simply do not know why Justice Mogoeng declined to agree with the paragraphs quoted above. By not providing us with reasons for his disagreement, Justice Mogoeng has left himself open to criticism — not for expressing his views in a reasoned and careful judgment, but for not providing any reasons at all.

The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, has not been served by this silence. Justice Mogoeng has, in my opinion, therefore unwisely failed to embody the culture of justification demanded by our Constitution.

If Justice Mogoeng holds controversial views on the rights of gay men and lesbians (rights which are explicitly enshrined in our Constitution) it would have been better for everyone concerned if he had expressed these views in a reasoned judgment. Some of us might have unpacked and criticised these reasons and might have had harsh words about his views, but at least we would then have engaged in a reasoned dialogue about the values and principles of one of the judges on our highest court.

In the absence of reasons, no such dialogue is possible. In my opinion the South African public is not served by such a silence. Neither is the Constitutional Court or the judge who has declined to provide reasons for his disagreement with colleagues. It is surely always better to debate an issue on the basis of a reasoned set of arguments, than to leave things unclear and vague. Such a silence creates unnecessary suspicion and invites uninformed speculation about the motives and views of a judge.

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