The judiciary of South Africa is bound by a Code of Conduct that has been approved by Parliament. Article 5 of that Code is binding on all judges, including the Chief Justice, who is the leader of the judiciary. It requires judges to behave honourably in all they do, in and out of court.

Has the Chief Justice behaved honourably by the way in which he has, in the exercise of his freedom of expression, prayed in public about the (mis)perceived or (irrationally) suspected dangers of covid vaccines that may shortly become available in the country?

While the Chief Justice is free to express himself, the Code limits him in ways that are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The duty imposed on all judges to behave honourably in the way in which they express themselves is a reflection of the influential leadership role they play in society. They have vital obligations to dispense justice in our courts without fear, favour or prejudice by impartially adjudicating disputes that are brought to the courts by those involved in contestation. Their necessary gravitas should have all right thinking people in SA looking up to them as exemplary and responsible citizens.

The Chief Justice would have done well to pause to consider how his prayers might land on the population whose judiciary he leads. Admittedly, some would be prepared to rely on the relevant medical authorities to ensure that only safe and good vaccines are rolled out and will choose to use those which pass scrutiny and expert muster. Some would be hesitant about the safety and efficacy of vaccines and some, as a matter of belief or principle, would never take vaccines in the exercise of their freedom of choice not to do so.

It is those who are hesitant who may be swayed by the prayerful utterances of the Chief Justice to refuse to use perfectly good vaccines for fear of becoming affected by the work of the devil so trenchantly pronounced upon in the public prayers of the Chief Justice. He renders this grouping vulnerable to covid. He is reported to have prayed in the following language:

“Look at this coronavirus, it’s a crazy thing, (and) you never know when it can strike and yet you are there. I just hope it is a lie that some people are such heartless, corruption practitioners that, when resources were made available to save lives, they saw it as an opportunity to enrich themselves … I lock out any vaccine that is not of You,’ he said on 10 December 2020, during a closing prayer. ‘If there be any vaccine that is of the devil, meant to infuse triple-six in the lives of people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire, in the name of Jesus.’

Professor Barry Schoub, who heads the ministerial advisory committee on Covid-19, said in response: ‘It is unfortunate that someone of that stature is misleading people because vaccines are such a major part of controlling this epidemic and it is unfortunate that someone with such influence is opposing efforts to control it.’ He referred to ‘vaccine-hesitant people’ who were ‘genuinely nervous’, and who became vulnerable to fake information that is spread. In this context, he said, the Chief Justice’s words might create hesitancy among those who were previously hopeful of the vaccines. ‘The … hesitant ones, need to be reassured and comforted that vaccines are safe,’ Schoub said. He added the development of a Covid-19 vaccine had been shown to be ‘extraordinarily safe’.

It is neither honourable nor responsible to spread fake news about the efficacy of covid vaccines which, once duly approved by the SA Health Products Regulatory Authority (SAHPRA), may become available in SA.

The Chief Justice ought to have informed himself concerning the response of that authority to the pandemic. He would have found its media release dated 4 December 2020 in which it is stated that:

“The economic and social disruption caused by the pandemic is devastating. In an attempt to tackle this novel virus, many pharmaceutical companies are busy manufacturing and investigating possible candidate vaccines that can be used to limit the spread of Covid-19 virus.

SAHPRA in readiness for the possible registration of Covid-19 vaccines has adopted approaches, which seeks to expedite access to quality, safe and efficacious vaccine to the South African public.”

The Chief Justice retires next year. Whether anyone feels strongly enough about his dangerously dishonourable conduct to complain formally to the Judicial Service Commission remains to be seen.

Paul Hoffman SC is a director of Accountability Now

11 December 2020.