The recent furore over the remarks made by chief justice Mogoeng Mogoeng brings to the fore critical issues pertaining to the status and governance of the judiciary in SA.

Our system of constitutional governance brings together three distinct but interdependent arms of the state — the legislature, the executive and the judiciary. They provide the building blocks for the checks and balances that are inherent in the constitutional architecture, to ensure that the supremacy of the constitution is respected and that any conduct inconsistent with the constitution or the law is challenged.

In doing so, these three arms of the state must respect the powers and authority of the others, and only intervene when it is necessary to protect the constitution and the law. This is particularly true of the judiciary, as the unelected institution, yet in which is reposed the formal custodianship of the constitution. The constitution provides that “the courts are independent and subject only to the constitution and the law, which they must apply impartially and without fear, favour or prejudice ... Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”

In 2010 the office of the chief justice (OCJ) was established as a national department, separate from the department of justice, to enhance the institutional, administrative and financial independence of the judiciary. The Superior Courts Act of 2013 provides that the chief justice exercises responsibility over the establishment and monitoring of norms and standards of judicial functions for all courts.

The OCJ is governed in terms of the Public Finance Management Act and is therefore required to report to parliament. In practice, this has not happened as the chief justice deems it sufficient to “report to the public” by releasing the annual report of the OCJ via the media. In 2018/2019, the expenditure of the OCJ amounted to R1.12bn (excluding judges’ salaries of R1.02bn). The constitution is clear on requiring that all organs of state must be accountable to the National Assembly, yet the chief justice deems this to be unnecessary. He is setting a regrettable precedent that undermines the foundational constitutional principle of accountability.

He has recently failed to provide clear guidance and direction to the higher courts in terms of their operations under the Covid-19 lockdown. Mogoeng has left it up to the judges president of the various high courts to determine their modus operandi in these times, resulting in an inconsistent approach by the courts. This has serious implications for equal access to justice for all South Africans. While some courts have adapted to the changing times and are continuing to function with virtual hearings, others complain of the lack of adequate IT infrastructure such as web-enabled computers to assist them in discharging their judicial functions.

Mogoeng has stressed the importance of the courts being available to hear matters, including those relating to urgent challenges to the regulations made under the Disaster Management Act, but has done little to facilitate this. He should have ensured, at a minimum, that judges are adequately equipped to carry out their work.

Another notable shortcoming has been the dilatory manner in which the Judicial Service Commission (JSC) has dealt with complaints about judicial officers. There has been a spate of complaints against Western Cape High Court judges, such as judge president John Hlope, deputy judge president Patricia Goliath, justice Salie-Hlope and justice Mushtaq Parker. It is no exaggeration to say that this has had a significant impact on the effectiveness and integrity of the court (10 judges have publicly stated their unwillingness to sit in hearings with Parker), yet the JSC demonstrates no urgency to finalise these complaints.

The chief justice is designated by the Judicial Service Commission Act to chair the judicial conduct committee but has seen fit to delegate this responsibility to deputy chief justice Raymond Zondo despite his onerous workload at the state capture commission. This has clearly affected the efficiency of this committee and the speed with which it engages in the complaints.

Moreover, the Judicial Service Commission Act requires the commission to table an annual report to parliament — in practice, such reports are submitted to the OCJ and not referred to parliament. This lack of transparency and accountability perpetrated by the judiciary is an affront to our constitutional values and principles.

The chief justice’s 12-year tenure at the Constitutional Court comes to an end in 2021. It seems that he is now just biding his time, preparing for life after the bench. The state of judicial governance does not appear to be among his priorities.

His recent remarks offering support to Israel at the expense of the fundamental human rights of the Palestinian people have rightly attracted widespread condemnation. But they are not his first foray into abusing his office as a pulpit for evangelical posturing. It is not a question of freedom of expression, nor of a narrow interpretation of the judicial code of conduct. In a secular society, law and religious beliefs should not make easy bedfellows, whatever the issue at hand. It is a matter of ethical and responsible leadership that should be steeped in principles of human rights, human dignity and respect for other arms of the state.

The judiciary now appears leaderless and rudderless. What example is Mogoeng setting for other judicial officers — is it an invitation to judges of other faiths to add to this debate from their religious standpoints?

We may need to revisit the notion of placing one person at the helm of the judiciary in the absence of effective oversight and accountability mechanisms. Parliament and the executive must ensure that the project of ensuring judicial governance is complete, and that the institutional framework does indeed promote and protect the independence and integrity of the judiciary. Our constitution deserves no less.

In what is likely to be lauded as the high-water mark of his tenure, the Nkandla judgment, the chief justice emphasised the president’s constitutional obligations “to endure graciously and admirably and fulfil all obligations imposed on him”. He would do well to reflect on what that means for his own position and the legacy he will leave.

Naidoo is executive secretary of the Council for the Advancement of the SA constitution.

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