I refer to the address delivered at the Annual General Meeting Dinner of the Advocates for Transformation last week-end, by the Chief Justice, Mogoeng Mogoeng.

Bearing in mind that the Chief Justice was speaking in his official capacity as the head of the judiciary in South Africa, the content and tone of his address have serious implications for judicial independence, which is guaranteed and entrenched in section 166 of the Constitution.

In his address the Chief Justice, without mentioning names, uses very emotional and powerful language in relation to those persons who are challenging the modus operandi of the Judicial Service Commission (JSC) in relation to the way it recommends candidates for appointment to the Bench.

He is obviously referring to, inter alia, the Helen Suzman Foundation, which has initiated litigation in the courts in this regard. This also applies to retired Judge Kriegler, who has recently indicated that NGO Freedom Under the Law, which he chairs, would challenge the manner in which the JSC operates, if this is not done by any other body or institution, since this retired judge considers that the Commission is acting in flagrant conflict with the Constitution, because its conduct is arbitrary, irrational and manifestly unfair.

Furthermore, it is also alleged, by the detractors of the JSC, that the Commission does not merely discriminate against white male applicants, but also against any boldly independent minded applicant jurists, black or white, male or female, who would act fearlessly in interpreting and applying the provisions of the Constitution and the Bill of rights, and thereby poses a threat to the executive regardless of any consequences.

In his address the Chief Justice declared: “We must use all available avenues to expose this retrogressive campaign and the danger it poses to nation-building. But be warned, that engagement is not for the faint-hearted. Be ready to be trashed by a well co-ordinated network of entities often pretending to be working in isolation.”

In making this statement, the Chief Justice has with unrestrained and categorical language declared his allegiance with and support for the JSC, against its detractors, who are in the process of challenging the manner in which this Commission recommends appointments to the Bench.

As a consequence of the above outlined controversy, a battle royal is to be waged in the courts concerning the manner of the appointment of judges by the JSC. This is the kind of discourse that should indeed occur and be welcomed in the liberal democracy that South Africa is. However, bearing in mind that the controversy is both a legal and a political one, it is most regrettable and most unfortunate that the Chief Justice has become embroiled in it.

It is a fundamental principle in operation of an independent and impartial judiciary that judges should avoid political and other controversy at all costs, concerning which, in particular, they may in their judicial capacities be called on to give judgment.

When this issue comes before the Constitutional Courts, as it must inevitably do so, the Chief Justice will find himself in a forensically untenable situation and indeed there will be great pressure on him to recuse himself, since he has by his unfortunate and intemperate public utterances, set out above, manifestly prejudged the matter.

At the very least Counsel for the Helen Suzman Foundation will, with cogent justification, demand his recusal.

Furthermore, the Chief Justice has also by his alignment and support for the JSC, against its detractors, done immeasurable harm to the independence and impartiality of the judiciary, which is a cornerstone of democracy. and of which he should be a manifest custodian.

He should not in any way, by his words or action, undermine such independence.

Yours faithfully
Prof George Devenish.
15th July 2013