We cannot avoid the debate on transformation!

In early August (2013) that great defender of the "rule of law", Adv Paul Hoffman SC laid a complaint with the Judicial Service Commission (JSC) against the current Chief Justice, Justice Mogoeng Mogoeng.

In the supporting affidavit, Adv Hoffman sets out his credentials and states that he "was previously an attorney from 1975 to 1980, a junior advocate from 1980 to 1995 and a silk at the Cape Bar from 1995 to 2006. Between 2006 and 2008 (he) was the founding director of the Centre for Constitutional Rights, a unit of the FW de Klerk Foundation. (He has) acted as a judge in the Cape High Court (now known as the Western Cape High Court) at the invitation of Friedman JP, King JP and Hlophe JP during the period in which (he) practised as a silk at the Cape Bar". Without a doubt, quite an impressive résumé and one that, I have to admit, I am envious of.

Adv Hoffman laid the complaint following a speech that the Chief Justice delivered at a conference of Advocates for Transformation on the 6 July 2013, in Cape Town. In the speech the Chief Justice addressed (to the apparent discomfort of Adv Hoffman et al) the thorny issue of transformation, particularly in the legal profession. Adv Hoffman's complaint was that in delivering the speech, and in the manner that he did, the Chief Justice was:

• in contempt of court and guilty of attempting to defeat the ends of justice (by seeking to influence the decision of the High Court in a pending matter where the JSC's process of recommending judges for appointment is being challenged);
• bringing the judiciary into disrepute (when he "descended into the arena of contestation and controversy in respect of issues which are pending in the High Court and which, in the light of their constitutional nature, are likely to require a final determination in the Constitutional Court" and he "involved himself in the politics and policy aspects of affirmative action measures in a manner unbecoming of a sitting Judge in that he adopted a position on various political questions and matters of policy in a manner which undermined the proper function, the standing and the integrity of the judiciary".

There was also a complaint that the Chief Justice was guilty of various breaches of the Code of Judicial Conduct for Judges (by engaging in public debate about a case in a manner that undermined the standing and integrity of the judiciary). He also complained about the words allegedly uttered to him by the Chief Justice (when the two met at some conference) where the latter was alleged to have said ""you can continue to challenge me but you will continue to be frustrated". In Adv Hoffman's view, these remarks showed bias and malice towards him; they were prejudicial to his professional career and they were a violation of his constitutional rights. In addition, Adv Hoffman argued, the Chief Justice violated his duty (as a judge) to respect, protect and fulfil Adv Hoffman's rights.

We now know that this complaint has been rightly dismissed, summarily, by the Judicial Conduct Committee (JCC). The JCC found no merit to any of the complaints and in fact called some of them "far fetched". The reasons set out by the JCC for dismissing the complaint and succinct and not deserving of any further analysis.

However, of concern to those of us who still aspire to one day boost of the credentials like those listed by Adv Hoffman in his affidavit is the conduct that was depicted by Adv Hoffman throughout this whole process. This led to the remark that was made by the JCC where they said "it is indeed shocking to hear that an advocate could write letters to a sitting judge demanding that the judge explains his fitness for office". I could not agree more. Lest we forget, this is not just a sitting judge, this is a sitting Chief Justice!!

In his complaint statement, Adv Hoffman even had the audacity to call his mischievous letter an "olive branch" that was proffered by him. In the letter itself (available at www.iafsa.org under the link, "Chief Justice") Adv Hoffman says it occurred to him that it was preferable "engaging constructively with (the Chief Justice)" than "escalating the existing confrontation". It must be on this basis that he saw his mischievous act as extending an olive branch. It is however telling that a practising senior advocate appears to be proudly considering himself to be in "confrontation" with a sitting Chief Justice.

If there is indeed any confrontation, given Adv Hoffman's commentary about the Chief Justice ever since it emerged that Justice Mogoeng was a candidate for the then vacant Chief Justice position, it seems clear to me that Adv Hoffman is the one who has been confrontational. As far as I know, other than the alleged remarks referred to above, the Chief Justice has been at the receiving end of all the insults from the likes of Adv Hoffman.

In his letter (referred to above) Adv Hoffman goes further and says "I am hopeful that upon mature reflection, and after prayerful consideration, you will recognise that harm can be done to the impartiality and independence of any court whose officers descend into the arena of debate and contestation regarding matters of this highly politicised and contentious nature" (my emphasis). In other words, failure by the Chief Justice to give the reflection that Adv Hoffman sought will be an indication of some immaturity on the part of the Chief Justice and/or up until that state, the reflection that the Chief Justice had given to the matter (including the contents of his speech) had been immature.

We will recall that, when the Chief Justice was being interviewed for that position, he confirmed that he is a religious person, hence Adv Hoffman saw it fit to mention that the Chief Justice may even need some divine intervention in order for him to bring about the "mature reflection" that was needed in the situation. This conduct is, in my view, deplorable.

What the complaint and the letter Adv Hoffman sent to the Chief Justice reveals is an attitude of an officer of the Court who has absolutely no respect for the person occupying the highest judicial office in this country. Of course, Adv Hoffman is entitled not to like the Chief Justice, just he was also entitled not to support his appointment. However, he is not entitled to disrespect the office, and the Chief Justice as a person.

The JCC was correct, it is shocking that an advocate would essentially request a sitting Chief Justice to explain why he is fit to hold that office. This is as disrespectful as it is unbecoming of an officer of the Court.

What Adv Hoffman (and those in his corner) need to understand is that transformation, particularly the transformation of the legal profession, is long overdue and is a reality we cannot run away from. It needs to be debated and solutions need to be found by all those who have the power to improve the current situation. Perhaps the likes of Adv Hoffman would rather prefer the status quo to remain because, quite frankly, it is not detrimental to their immediate careers. The more things stay the same, the better for the likes of him.

Sadly, whilst that might be desirable to sustain their selfish interests, the fact of the matter is that most South Africans would prefer to see real transformation (which by the way is not, and should not be, synonymous with the dropping of standards). The truth of the matter is that we have a Chief Justice who has gone about his job diligently so far and the fact that the likes of Adv Hoffman can even come up with these spurious complaints is indicative of the fact that they have nothing tangible that they can use to pin down the Chief Justice.

Mzo Tshaka is an attorney based in Cape Town and is also the Deputy President of the Black Management Forum in the Western Cape. He writes here in his personal capacity.

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