JUDICIAL CONDUCT COMMITTEE

The Judicial Conduct Committee (Committee) received a complaint by Adv Hoffman SC lodged against Chief Justice Mogoeng arising from a speech made by the Chief Justice at a Conference of the Advocates for Transformation on 6 July 2013.  The complaint was considered by a panel of two members, Judge President H T M Musi and Judge C Pretorius.

The Committee has decided to dismiss the complaint as it does not disclose any of the grounds set out in section 14(4) of the Judicial Service Commission Act, 1994. as amended.

A copy of the Committee's decision is attached for ease of reference (see below).

Statement issued by Adv Ntsebeza SC and Mr CP Fourie, Judicial Service Commission, September 10 2013

COMPLAINT BY ADVOCATE PAUL HOFFMAN SC AGAINST CHIIEF JUSTICE MOGOENG MOGOENG

Decision

1. The complaint against the Chief Justice (the respondent) arises from a speech that the respondent made to a conference of Advocates for Transformation on the 6 July 2013 in Cape Town. The speech is entitled "The Duty to Transform". The complainant says that the speech discloses the following acts of misconduct on the part of the respondent:

1. Contempt of court.

2. Attempt to defeat the ends of Justice.

3. Bringing the judiciary into disrepute.

4. Various breaches of the Code of Judicial Conduct for Judges (the Code).

A further complaint against the respondent arises from a remark that the respondent allegedly made to the complainant on the 8 July 2013 in The Hague. He is alleged to have said the following:

"you can continue to challenge me but you will continue to be frustrated"

The complainant contends that the remark shows bias and malice towards him and is prejudicial to his professional career. He says that this represents a violation of his constitutional rights and also that it is a violation of respondent's duty to respect , protect and fulfil the said rights of the complainant.

2. Section 14(3) of the Judicial Service Commission Act of 9 of 1994 as amended (the Act) stipulates that a complaint against a judge must be based on one or more of the grounds referred to in sub section 4. Section 15(2) of the Act stipulates that a complaint which does not fall within the parameters of section 14(4) must be summar ily dismissed .

3. Having studied both the complaint documents and the impugned speech, I am of the view that the complaint does not disclose any of the grounds set out in section 14(4). My reasons for this conclusion are briefly set out hereunder. I deal briefly with each of the alleged acts of misconduct.

Breaches of the Code

The clauses of the Code that are implicated are clause 10(1) and clause 10(7). Clause 10(1) discourages judges from engaging in a public debate about a case. The subject of the respondent's speech was ·not a case but an issue that had been publicly debated for a lang time. The institution of the HSF case did not have the effect of stopping that debate . Moreover the issue is a practical, on-going one for the JSC , which it will continue to grapple with notwithstanding the pending case.

Clause 10(7) recognises that a judge may participate in a public debate about matters affecting legal profession and judiciary but says that he must do so in a manner that may not undermine the standing and integrity of the judiciary. lt was perfectly legitimate for the respondent to participate in a debate about transformation of the judiciary and to express his views on what he perceives to be resistance to it. His frankly expressed views were bound to sit uncomfortably with sections of the legal profession and the judiciary but that cannot be said to undermine the standing and integrity of the judiciary.

Bringing the judiciary into disrepute

The complainant claims that the respondent "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 further that in doing so the respondent "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".

The subject of the respondent's speech was a matter of great public interest not only to the legal profession and judiciary but also to the country as a whole, namely, transformati on of the legal profession and the judiciary. In particular, it touched on the sensitive argument about the JSC's perceived policy against appointment of white males to the judiciary.

Given his position as head of the judiciary a public debate about transformation of the judiciary is one that he was not only entitled to participate in but also one that he could not avoid. As head of the JSC, he was not only entitled to articulate the views and position of this body on the matter but also to defend it. By its very nature, touching as i does on sensitive constitutional issues of race and gender, the debate was bound to have political connotations. The complainant's contention that by engaging in such debate the respondent descended into the political arena is rather disingenuous.

Contempt of court and attempting to defeat the ends of justice

This relates to the case instituted by the Helen Suzman Foundation regarding what the complaint calls the modus operandi of the JSC in dealing with judicial appointments. The complainant claims that the respondent's speech was an attempt to influence the outcome of that case. The complainant seems to suggest that with the institution of the HSF case the debates around the issues raised therein should come to an end until the case is decided. This cannot be correct. lt is noteworthy that not once did the respondent mention such case in his speech. There is therefore no basis for this complaint.

The utterance in The Hague

I proceed on the assumption that the respondent did utter the words attributed to him. lt is noteworthy that the complainant does not give the background against which the remark was made. However, in his letter to the respondent dated 18 June 2013 the complainant hints at an ongoing confrontation with the respondent.

In paragraph 11 of his complaint statement, he discloses that he had been critical of the readiness of the respondent for the office of Chief Justice and that he had addressed a corresponqence to the respondent demanding clarification on matters relating to his fitness for that office. lt is indeed shocking to hear that an advocate could write letters to a sitting judge demanding that the judge explains his fitness for office. This explains why the respondent did not want to exchange any further correspondence with the complainant.

The point, however, is that in the absence of the context in which the words were uttered, the remark remains meaningless . The complaint that the remark constitutes a violation of some or other constitutional right is simply far fetched. lt is equally far fetched to complain that the respondent's refusal to engage in correspondence with the complainant is proof of bias and malice towards the complainant. The complainant cannot engage in what appears to be provocative conduct towards the respondent and then turn around and complain that the resultant confrontation will prejudice his future appearances before the Constitutional Court.

In the premises, I would summarily dismiss the complaint in its entirety in terms of section 15(2).

H M T Musi, JP

C Pretorius, J concurs

4 September 2013

Click here to sign up to receive our free daily headline email newsletter