A chief justice for such a time as this

In the Book of Esther we are told the story of Mordecai, an exiled Jew in Persia and cousin of Esther, who raised her as his own after his uncle died; and, who, when King Ahasuerus of Persia ordered that all of the virgins in the kingdom be brought to him for him to choose a new wife, ensured that Esther was among them. So enamoured was the king with Esther’s beauty that he chose her to be queen. Mordecai, now Esther’s top adviser, soon learned of a plot by two palace hands to assassinate the king and informed Esther, who in turn informed the king. Once the plot was foiled, the king elevated a man named Haman to the position of highest adviser and ordered everyone to bow down to him; Mordecai refused. Enraged, Haman promised the king a sum of money in exchange for permission to exterminate all of the Jews in the kingdom. Haman subsequently issued an order under the king’s seal, calling for the extermination of all the Jews in the kingdom, and when Mordecai found out about it, he pleaded with Esther to reveal to the king that she was a Jew and ask him to repeal the order.

Esther informed Mordecai that it was against the law to approach the king’s inner court without being summoned and that the law was that anyone who did that would be put to death. Mordecai replied: “Do not think that because you are in the king's house you alone of all the Jews will escape. For if you remain silent at this time, relief and deliverance for the Jews will arise from another place, but you and your father's family will perish. And who knows but that you have come to royal position for such a time as this?” Esther then asked Mordecai and all of the Jews in the kingdom to fast for three days, which she would also do, and promised that “when this is done, I will go to the king, even though it is against the law. And if I perish, I perish.”

Anyone familiar with South African politics will have heard the phrase “and if I perish, I perish” before. It has been previously invoked by the embattled Public Protector to suggest that the now very real prospect of her removal by the National Assembly was as a result of having dared to go to the king; that she had gone where no man had dared to go before; that she had touched those she calls “the untouchables”.

Yet, the story of Esther conjures up a different image in my mind. An image of a woman willing to break the law and risk her life to save her people. It is a powerful image of courage and defiance. Imagine my surprise, then, when Chief Justice Mogoeng Mogoeng uttered the phrase again. This time during a prayer webinar, mere days after participating in another webinar organised by The Jerusalem Post. It was the latter webinar that would be the subject of three complaints filed with the Judicial Conduct Committee (‘JCC’) of the Judicial Service Commission. Within hours of making his controversial comments on Israel and Palestine, a furore had developed around them.

A day before the first complaint was laid by Africa4Palestine (formerly BDS South Africa), the Chief Justice participated in a virtual “Africa Prayer Meeting”. It was at this meeting that he said that he would not apologise for his remarks, that “even if 50 million people can march every day for the next 10 years for me to retract or apologise for what I said, I will not do it”, adding finally that “like Esther said, ‘If I perish, I perish’”.

These remarks, too, would be the subject of a third complaint, this time by the Durban-based Women’s Cultural Group (the second complaint having been laid by the SA BDS Coalition, in relation to the initial remarks).

On 5 March 2021, the JCC (in the person of the former Deputy Judge President of the Gauteng Division of the High Court, Judge Phineas Mojapelo) issued its ruling on the three complaints. In terms of the ruling, the Chief Justice was found to have breached the Judicial Code of Conduct in several respects: (i) by getting involved in a political controversy; (ii) by not respecting the separation of powers; (iii) by lending the prestige of judicial office to advance private interests; (iv) by failing to minimise the risk of conflict with his judicial obligations; and (v) by involving himself in extra-judicial activities which are incompatible with the confidence in and the impartiality of judges. The JCC then ordered the Chief Justice to, within 10 days of the order, apologise “for becoming involved in a political controversy” through his remarks during the webinar with The Jerusalem Post and to “unreservedly retract and apologise” for what the JCC calls his ‘brazenly defiant’ remarks made at the virtual prayer meeting to the effect that he would never apologise.

Naturally, there have been very strong reactions to this ruling. Many welcome it, while others are adamant that he should not apologise, and that his rights to freedom of expression and freedom of religion are being infringed. Anyone familiar with my writing will know that I am particularly suspicious of popular rulings. In fact, I make it a point to consider whether, even when they are right (in the sense that the outcome in a particular matter is morally justifiable), they are also correct (in the sense that an outcome is legally justifiable in terms of established law and principle). In this particular instance, the answer is: yes. The JCC ruling is incredibly thorough, both in fact and in law. Judge Mojapelo goes into painstaking detail about the allegations levelled against the Chief Justice, his responses to those allegations, as well as the actual remarks that gave rise to the complaints and the legal framework that governs the conduct of judges.

The ruling reinforces several important principles about judicial authority. First, it holds that decisions about whether or not a judge should recuse themselves from a particular case go to the heart of judicial power. In this regard, Africa4Palestine had argued that the Chief Justice should recuse himself from an appeal that currently serves before the Constitutional Court and that the JCC should sanction said recusal. The case in question is South African Human Rights Commission v Masuku, in which the SAHRC appeals against a judgment of the Supreme Court of Appeal which held that the respondent, Mr. Masuku, had not committed hate speech, overturning an earlier judgment of the Equality Court to the contrary. The facts of this case are, briefly, that Mr. Masuku had given a speech at a rally organised during ‘Israeli Apartheid Week’ at Wits University. In that speech he made several remarks about Zionists, which the South African Jewish Board of Deputies reported to the SAHRC, which in turn found them to have been anti-Semitic hate speech and approached the Equality Court for an order to the same effect, which the court granted in terms of section 10 of PEPUDA (more about that here).

On appeal, the Supreme Court of Appeal set aside the order, on a most unusual basis. It intimated that the definition of hate speech in section 10 of PEPUDA might be unconstitutional and that on that basis, it would apply the definition of hate speech contained in section 16 of the Constitution: hate speech is ‘speech which constitutes propaganda for war; the incitement of imminent violence; or the advocacy of hatred that is based on race, gender, ethnicity, gender or religion, and that constitutes incitement to cause harm’. On its application, the Supreme Court of Appeal held that Mr. Masuku’s remarks did not qualify as hate speech. The SAHRC and SA Jewish Board of Deputies appealed.

The Chief Justice presided over the Masuku hearing. He no doubt participated in post-hearing discussions and the judgment writing process. Masuku was heard in August 2019, and the judgment has been stayed until the decision in Qwelane—a confirmation application in which the Supreme Court of Appeal struck down section 10 of PEPUDA as unconstitutional. Notably, the Chief Justice did not participate in the Qwelane hearing but the court’s ultimate decision in that matter would affect the outcome in Masuku, which he participated in. Africa4Palestine argued that his remarks during the webinar were proof of a reasonable apprehension of bias against Mr. Masuku and that he should therefore recuse himself.

The JCC, rightly, held that this was not its decision to make. It held that recusal involves the exercise of constitutionally-vested judicial authority, which it may not usurp, and implicates judicial independence and that, ultimately, the decision will rest with the Chief Justice either of his volition or upon application for his recusal by any interested party. This is correct. The Chief Justice will have to consider whether, given his views on the Israeli-Palestinian conflict and the germaneness of that conflict to the issues in Masuku; and the publicity and controversy around his views, he is still able to bring an independent mind to bear on the issues and whether his continued involvement would serve the interests of justice. In the event of a split decision in Masuku, the motivations for the Chief Justice’s vote would justifiably be questioned. Did he vote in favour of Mr. Masuku in order to dispel the notion that his views on Israel and Palestine influence his judicial decisions? Or did he vote in favour of the SAHRC, and in turn the SA Jewish Board of Deputies, because of his views on Israel and Palestine? Whichever way the pendulum swings, it is undesirable that this conversation is even being had, and it has the effect of eroding public trust in the impartiality of judges.

Second, the ruling reinforces the principle of the separation of powers and the limits on judicial authority. My initial reaction to the Chief Justice’s remarks was that he shouldn’t have said anything. There isn’t a more polarising issue in the world today than the Israeli-Palestinian conflict. It doesn’t matter which side you come down on, or even that you straddle the middle as if it were a tightrope, your views are guaranteed to upset people. The JCC ruling makes it clear that it is concerned not with what the Chief Justice’s views are, but whether, in expressing those views, he involved himself in political controversy, in contravention of the Judicial Code of Conduct. The political controversy in question, says the JCC, implicated the separation of powers. Indeed, the Constitution vests the executive with the authority to develop and implement national policy (sec 83(2)(b)), and of course, said national policy necessarily includes South Africa’s attitude towards, and relationships with, foreign nations. Further, the Constitution in section 231 divides foreign relations powers between Parliament and the executive, specifically in the negotiation, signing, and ratification of treaties and their incorporation into domestic law. That is the province of foreign policy powers constitutionally determined. Courts, as the JCC notes, retain the power to test the exercise of these powers for constitutionality, but that is where the role of the courts ends. No court (and by extension, no judge) has the power to enquire into the substance of properly-made foreign policy.

The President, the Speaker of the National Assembly, and the Chief Justice are all officers of the Constitution. They personify the three arms of state, each with their own limited powers. The formulation of foreign policy is the sole preserve of the executive, which it has chosen to entrust to the Department of International Relations and Cooperation. Whatever our foreign policy position on Israeli-Palestinian relations is, it binds all South African officials, more so the Chief Justice. Indeed, the Chief Justice admits as much when, beginning his remarks, he says “I acknowledge without any equivocation that the policy direction taken by my country, South Africa, is binding on me, it is binding on me as any other law would bind me”. Of course, his remarks go on to contradict official South African policy; the spectre of the most senior judge of the Republic contradicting his country’s official foreign policy position on an international platform came to pass. The objection to this point is that as a citizen he is entitled to criticise our policy on Israel-Palestine. But, as the JCC points out, the Chief Justice of the Republic of South Africa is no ordinary citizen, nor can he be. That is the effect of occupying so high an office. The weight of his remarks and the value assigned to them by the public necessarily flow from his powerful position. Respect for the separation of powers includes respect for this doctrine extra-curially (outside of court) and extra-judicially (when judges are not performing judicial functions). The separation of powers would be undermined, as the JCC notes, if Parliament decided to establish its own court (‘the High Court of Parliament’) to overrule decisions of the superior courts, or if a court set aside the appointment of a Minister and appointed one of its choosing. In the same way, the separation of powers is undermined by the Chief Justice speaking publicly against official South African foreign policy positions, lawfully adopted by the executive. It is simply not his place, nor any judge’s.

Third, and finally, the ruling reiterates that ascension to judicial office comes at great cost to judges’ individual rights and freedoms. After considering foreign and international perspectives on the political activities of judges, the JCC concluded that the restrictions placed on judges’ abilities to participate in political activities, both by the Constitution and the Judicial Code of Conduct, serve to protect the integrity of the judicial system and litigants. They ensure that courts are not only impartial, but also seen to be impartial; which in turn assures litigants that their disputes will be fairly adjudicated and that no outcome is predetermined by a particular judge’s political views. Of course, this limits the rights of judges in quite significant ways. But, to quote James Baldwin, that is ‘the price of the ticket’. The nature of the job is such that most of one’s life will be inward-facing, towards one’s friends, family, and colleagues, and away from the public’s glaring eyes. That does not mean that judges are not entitled to their religious, political, or other beliefs.

The Judicial Code of Conduct explicitly allows judges to “participate in public debate on matters pertaining to legal subjects, the judiciary, or the administration of justice, but [not to] express views in a manner which may undermine the standing and integrity of the judiciary”. Further, note 15(ii) of the Judicial Code of Conduct provides that: “judges may deliver public lectures or papers on appropriate subjects”. The Chief Justice had raised, in response to the complaints, the defence that other judges had previously criticised Israel; arguing no doubt that he was being pursued for the substance of his views. The JCC dismissed this defence, noting simply that the conduct of other judges was not before it for decision; saying that an “others-have-done-it-too” defence was actually no defence at all. I think the defence deserves some attention. One judge who had in the past criticised Israel is Justice Edwin Cameron who, in a public lecture, argued that Israel’s continued annexation of Palestinian territory was a violation of international law. On an earlier occasion, he had made this same argument, saying “I can speak only as a lawyer, for in law we must seek what justice there is to be had in a cruel, arbitrary and often capricious world. But if we abandon the law, we abandon all defence against the arbitrary, the cruel and the capricious. In seeking justice for oneself and for one’s own one cannot set aside the claims of law”. The contrast between the context of these remarks and that of the Chief Justice’s is stark. They generally focus on Israel’s actions under international law and debate the merits of arguments in that field of law. Surely no one can argue in earnest that they are the same.

But of course, we live in a world where counterfactuals (“But if he had supported Palestine, there would be no uproar.”) and whataboutism (“But Edwin Cameron…”) pass for actual argument. My response is simply this: we don’t know what the reaction would have been. To be sure, several organisations supported the Chief Justice’s views and came to his defense, so at some level they may have reacted just as strongly. In any event, that begs the question of the propriety of his remarks. One very disturbing detail, which the JCC found to be aggravating, was that the Chief Justice’s remarks were made a day before South Africa was set to raise its objections to Israel’s planned annexation of the West Bank and the Jordan Valley at the UN Security Council. This means that The Jerusalem Post either knowingly scheduled the webinar before this move by South Africa in order to pre-empt and contradict South Africa’s position by enlisting the country’s top judge to express a contrary opinion or it was all just a coincidence. Regardless, the JCC found it to “elevate[] the seriousness of the transgression, if […] done on an international platform and at a time when the executive, which has the constitutional mandate and prerogative to formulate and implement foreign policy, is raising the same issue at another international platform, the UN”. The JCC linked this to its ruling that the Chief Justice had lent the prestige of judicial office to the advancement of private interests, though not his own.

To conclude, I am not one to insist on accuracy when people make use of biblical allegory, preferring rather to draw meaning from the manner in which it is used. But in the case of the Chief Justice and the Public Protector, both devout Christians, I simply must insist on drawing parallels between themselves and Esther that are both accurate and justifiable. Esther’s story is of an otherwise faithful and law-abiding woman who is forced by circumstance to break the law in order to save her people from certain death.

The Chief Justice and the Public Protector are officers of the law, charged with upholding it. What circumstances exist which render their disobedience of the law necessary that they are willing to perish à la Esther? South Africa’s disciplinary system for judges is far from perfect, but the JCC’s ruling in this case is a win for accountability at a time when we desperately needed a sign that the system still works.

Perhaps the Chief Justice came into his constitutional position for such a time as this.