An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.