Why Mathekga is wrong about Mogoeng - IOL

19 December 2019 - Dr Ralph Mathekga shows once again that there are unexpected gaps in his political knowledge (IRR fears Mogoeng views on socio-political woes may compromise judiciary, IOL, 18 December).

Sara Gon

Dr Ralph Mathekga shows once again that there are unexpected gaps in his political knowledge (IRR fears Mogoeng views on socio-political woes may compromise judiciary, IOL, 18 December).

He was responding to the criticism of Chief Justice Mogoeng Mogoeng’s expressing his personal views on matters by Institute of Race Relations (IRR) policy fellow John Kane-Berman (A judicial want of judgement).

The gaps in Mathekga’s thinking are not inspiring for a man who is a political analyst of some years’ standing.

Mathekga says that the IRR’s outlook on politics is conservative and that it is naïve to expect jurists not to weigh in on matters confronting society. 

He is quoted as saying: “Their [the IRR’s] view of the judiciary is in the context of the olden days where judges were expected to be indifferent, with their role being just to preside over matters before them. We are living in the modern days now where we need the judiciary that is accessible and understands its role in transforming society.”

Mathekga is wrong in assuming that it was only in the context of previous judicial “indifference” that judges were not expected to express private opinions in public. Mathekga says that courts must be “accessible” and “understand their role in transforming society”.  

The judiciary may hand down judgments which “transform” society, but a judiciary has to comply with the rule of law first and foremost as expressed in the Constitution and, importantly, as presented by the facts of a case. ‘Accessibility’ and being ‘transformative’ have nothing to do with judges keeping their opinions to themselves. If they don’t they may well face applications for recusal. 

Mathekga feels that courts and jurists must be sensitive to the “tone of the public”, adding that this was the case in many democracies, including the United States (US). In any event being “sensitive to the public tone”, assuming the chief justice knows which tone to be sensitive to, does not justify expressing private views in public. 

In the US, there is a lot of criticism of supreme court judges in particular getting too cosy with the public.

British courts are expected to be impartial in order to preserve the respect all citizens may have of them. The Guide to Judicial Conduct 2013 states that, as far as is reasonable, judges are expected to “avoid extra-judicial activities that are likely to cause the judge to have to refrain from sitting on a case because of a reasonable apprehension of bias or because of a conflict of interest that would arise from the activity”.

The Guide notes: ‘If a judge is known to hold strong views on topics relevant to issues in the case, by reason of public statements or other expression of opinion on such topics, possible disqualification of the judge may have to be addressed, whether or not the matter is raised by the parties. The risk will arise if a judge has taken part publicly in a controversial or political discussion. It will seldom, if ever, arise from what a judge has said in other cases.”

Mathekga says “Judges are going to weigh in on the matters that confront the public. There is nothing that compromises their capacity to fairly apply the law. They cannot be expected not to have a world view even if they have an obligation to impartially and objectively preside over cases.” 

Of course they can have a “world view”, but expressing a view in public introduces the risk of a possible party before the constitutional court fearing that the chief justice is not impartial and may well not judge the matter impartially. 

Mathekga is wrong about the obligations of judges in the public domain. The Code of Judicial Conduct for South African Judges adopted in terms of Section 12 of the Judicial Service Commission Act no. 9 of 1994 states under Article 14 – Extra-judicial activities of judges on active service – that, (1) ‘A judge’s judicial duties take precedence over all other duties and activities, statutory or otherwise; (2) A judge may be involved in extra-judicial activities, those embodied in their rights as citizens, if such activities (a) are not incompatible with the confidence in, or the independence of the judge; or (b) do not affect or are not perceived to affect the judge’s availability to deal attentively and within a reasonable time with his or her judicial obligations.’

In the 25 years of the constitutional dispensation, judges have given public addresses, but almost always avoid expressing a private view on a political issue and will refuse to express one when asked.

Colleague John Kane-Berman writes the following about Mogoeng’s utterances: “In that same speech he also said that anyone acting as a ‘front’ in black economic empowerment was a ‘traitor’. In his Mandela lecture, he said that anyone living comfortably in a suburb who was ‘indifferent’ to the plight of people in Diepsloot was also a ‘traitor’, a ‘traitor of our Constitution’, a ‘traitor of Nelson Mandela’, and ‘a traitor of any other person who suffered for us to get where we are’.”

These utterances display a very biased opinion, an ignorance of the various complexities involved in running a business in South Africa and not a little shortage of intellectual heft.

There is a real risk that Mogoeng will face an application for recusal.

* Sara Gon is the head of strategic engagement at the IRR.