Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Chief Justice Mogoeng Mogoeng Mogoeng caused a stir last week when – in a Jerusalem Post webinar – he seemed to criticise South African goovernment policy towards Israel, stating that as a Christian he was under an obligation “to love Israel” and “to pray for Israel”. Some of those who criticised the Chief Justice and some who defended him did so based on their view of Mogoeng, or on whether they agreed with his statements or not. Perhaps a better way to approach the matter is to take a step back and to ask what principles should guide a judge when making public pronouncements.
Judges are not prohibited from making public comments or from participating as citizens in public life. While judges do not have the same freedom as ordinary citizens, they retain those rights that are compatible with judicial office. The line between permissible and impermissible conduct is not always an easy one to draw, but there is a line, and judges are legally required to stay on the right side of it.
The conduct of judicial officers are guided by the Code of Judicial Conduct adopted in terms of section 12 of the Judicial Service Commission Act. In terms of section 14(4)(b) of the Act anyone can lay a complaint against a judge for a wilful or grossly negligent breach of any of the provisions of the Code. The aim of the Code is to safeguard the independence and integrity of the judiciary and the authority of the courts. Judges should therefore not do or say something that may bring the judiciary into disrepute or unduly politicise the courts. Judges should also not do or say anything that may require them to recuse themselves from a case because of a reasonable apprehension that the judge may be biased in a specific case.
The Code requires judges to show restraint when commenting on legal matters or on specific court judgments. To this end article 11(1)(f) of the Code prohibits judges from public criticism of another judge or another branch of the judiciary “unless it is germane to judicial proceedings before the judge concerned, or to scholarly presentation that is made for the purpose of advancing the study of law”. Article 11(2) further states that:
A judge may participate in public debate on matters pertaining to legal subjects, the judiciary, or the administration of justice, but does not express views in a manner which may undermine the standing and integrity of the judiciary.
Judges are therefore allowed to give public lectures or take part in scholarly debate on legal subjects, the judiciary and the administration of justice, as long as they do this with the necessary restraint. When a judge engages on such topics, it is best to avoid the use of emotive or conspiratorial language and personal score-settling. Moderation, circumspection and diplomacy is required. Judges who comment on legal subjects, the judiciary or the administration of justice might not always be able to avoid political controversy. For example, if the government of the day flouts the Rule of Law, a lecture by a judge defending the Rule of Law may stir up political controversy. There is nothing in the Code that prevents a judge from doing so, as long as the judge shows restraint in his or her comments.
Judges do not have the same leeway regarding comments and conduct not directly related to their judicial duties. To safeguard the independence and impartiality of the judiciary, article 12(1) of the Code of Conduct prohibits a judge from belonging to any political party or secret organization and from using or lending the prestige of the judicial office to advance the private interests of the judge or of others.
The latter provision raises difficult questions. For example, a judge who uses the influence and prestige of his or her office to promote the interest of a particular church by acting as a lay preacher in that church, or a judge who lends his or her judicial prestige to a television talk show that may advance the commercial interest of the particular media company, may arguably fall on the wrong side of the Code. But the judge may well successfully argue that the advancement of this other private interest is incidental to the activity and not its main aim and that he or she is therefore not acting against the spirit of the Code of Conduct.
Far clearer is the prohibition contained in article 12(1)(b) which prohibits a judge from becoming “involved in any political controversy or activity” unless “it is necessary for the discharge of judicial office”. This prohibition does not apply to comments or debates on legal subjects, the judiciary and the administration of justice, but rather to actions, comments and debates about other potentially controversial political matters.
When writing a judgment, a judge is entitled to criticise one of the parties (even if this party is a political leader or other controversial political figure and the criticism will spark political controversy), to criticise a government policy that is being considered by the court, or to criticise the actions of officials of another branch of government.
But once that judge takes off his or her robes and enters the wider world, that judge should refrain from making politically controversial statements. (But this metaphor may be faulty, as a judge cannot fully shed his or her robes; a judge’s private conduct may well impact on the integrity and authority of the courts.) Expressing support for a specific foreign government or state, attacking the political opinions of other public figures, or making other political statements not linked to legal subjects, the judiciary and the administration of justice may get that judge into trouble. The Code does not make an exception for politically controversial statements motivated by sincere religious convictions.
When considering the validity of the criticism of Mogoeng’s pro-Israel statement, the principled question is therefore not whether one supports the Palestinians cause or the Israeli state. Neither is the question whether the judge who made the statement is Muslim, a Christian or an atheist. Instead one should ask two questions: first, did the statement involve the Chief Justice in political controversy; and second, was the statement made on a topic that is not related to legal subjects, the judiciary and the administration of justice. Unfortunately the answer to both questions must be yes.
Because many people will find it difficult to divorce their view on this matter from their view of the Chief Justice and of the Israel-Palestinian conflict, let me use another example to illustrate the point. Imagine a Muslim judge from Al Jazeera and call on the South African government to support the imposition of sanctions on the USA (or for the arrest of Donald Trump) due to the manner in which Donald Trump is treating Muslims in his own country and across the world. Although some of us will have sympathy with the judge’s call, the comment would certainly involve the judge in political controversy and would not be related to legal subjects, the judiciary and the administration of justice, and may thus be in conflict with the Code of Conduct.
It must be said that the distinction between “political controversies” and controversies relating to legal subjects, the judiciary and the administration of justice is not as clear as the Code assumes. Criticising the South African government’s decision to impose a lockdown during the Covid-19 crisis in a webinar would clearly involve the judge in political controversy, but that judge may be able to claim that the comment was animated by a concern for the protection of the human rights of citizens. The judge may have a point if he or she actually framed the comments in human rights terms and spoke with restraint. It would be more difficult to justify such comments if these were framed as a political attack on the government of the day. As always, how a judge expresses him or herself may be almost as important as what that judge actually say.
The other potential adverse consequence of a judge making political controversial statements is that such statements may, in specific circumstances, create a reasonable apprehension of bias on the part of the judge dealing with a specific case. An easy example would be a judge who gives a public lecture in which she remarks that Jacob Zuma is a dishonest man and the worst President South Africa has ever had. That judge would have to recuse herself from any case in which Zuma was involved because of the reasonable apprehension that the judge could not be impartial towards Zuma.
Much is to be gained from judges participating in academic and popular discussions about the Constitution, legal questions and the judiciary, and it would be a great pity if the current controversy has a chilling effect on judges speaking their minds about pressing legal and judicial matters. Judges should not be afraid to deliver prepared lectures on pressing constitutional and other legal issues, to engage in debate with academics, or to explain legal ideas to the public – as long as they do so with restraint and circumspection.BACK TO TOP