Impartiality key in chief justice role

DEAR SIR — I refer to the raging public debate regarding the impeachment complaint concerning Chief Justice Mogoeng Mogoeng.

Unlike many of those who have entered the debate merely to express emotion, thereby creating factually incorrect perceptions, I have studied the complaint filed with the Judicial Service Commission (JSC) by advocate Paul Hoffman SC, following the speech by the chief justice to members of Advocates for Transformation on July 6.

At the time, the chief justice was aware of an application, launched by the Helen Suzman Foundation, challenging the modus operandi of the JSC over which he is supposed to preside even-handedly as chairman. That application is pending and is likely to be finally determined in the Constitutional Court.

For the chief justice to express himself so strongly and in emotional terms on the merits of the said application comes down to an attempt to improperly influence or even anticipate the outcome thereof. This is not dissimilar to what Judge John Hlophe attempted to do with two judges of the Constitutional Court in order to advance a particular point of view.

Judge Hlophe now faces charges not unlike Mr Hoffman’s, brought by the judges of that court and due for hearing in the near future.

This type of action amounts to contempt of court and an attempt to defeat the ends of justice. Publicly choosing sides in a pending case, as the chief justice has clearly done, demonstrates an unacceptably prejudiced attitude towards the case. This is not proper for any judge to do, let alone the chief justice, whose conduct should at all times be exemplary in its upholding of the independence and impartiality of the judiciary, a fundamental element of the rule of law.

The irony is that if the chief justice had used similar strong language to express himself in favour of the Helen Suzman Foundation, he would, for the exact same reasons, be guilty of the same misconduct.

The complaint is, therefore, not about opposing views of how to transform the judiciary and the legal profession (a highly contested issue). It is about the misconduct of the chief justice for speaking in inflammatory language and under circumstances that had him descending into an arena in which he clearly does not belong.

The playing of the race card by the critics of the complaint, so often the last resort of those without any sound counter-argument, is not justified in this instance and does nothing to add constructively to the real question of whether it is proper for a chief justice to act in the manner in which ours has done in this regard. After all, he is everyone’s chief justice and he should always remember that.

Jan Wagener

Attorney, Hermanus