Anecdotal bits on certain media coverage of Chief Justice Mogoeng Mogoeng and Paul Hofmann: A call for more critical analyses of media coverage
We went through a period of hysteria, one suspects some on the right wing found it exhilarating, where Advocate Paul Hoffman SC called for the impeachment of Chief Justice Mogoeng Mogoeng. If Hofmann and his supporters were to be believed, the CJ had committed an "ethical lapse" by defending the constitution, and speaking in favour of transformation. The two-judge panel, convened by the Judicial Conduct Committee (JCC), under the auspices of the JSC, dismissed the complaint and had harsh words for Hoffman.
The JCC recognized the right of a judge to participate in public matters even though the views "may sit uncomfortably with sections of the legal profession and the judiciary". The JCC further ruled that given the CJ's role as head of the judiciary, he could not avoid participating in the debates. As head of the JSC, the CJ was entitled to articulate the position of the JSC and to defend it.
On the question of the CJ entering the political fray, the JCC recognized the interplay between the legal and political and labeled Hoffman's contention as disingenuous. The JCC found Hofmann's correspondence to the CJ, questioning his fitness to hold office, emanating from an advocate, as shocking and provocative.
What is interesting is the editorial slant, by some of the country's leading newspapers to the CJ's speech and to Hoffman's complaint in the weeks before the JCC hearing. On a variety of issues, the question arises, does our media reporting and editorial discretion operate to promote a fair, balanced and reflective reporting. Our nascent democracy with limited media diversity is served poorly where the media claim to be objective observers, but provide neither contextual reporting nor serious analysis. The following two examples are worthy of consideration.
The Mail & Guardian editorial, referred to CJ Mogoeng's speech as a "deeper tragedy". They also labeled the views of the CJ as "demagogy". The editorial makes common cause with Hofmann saying, "Mogoeng appears unaware that he is not a politician".
The Sunday Times, after having accepted an op-ed from this author, which critiqued Hofmann, later revoked the offer to publish the piece. Brendon Boyle, from the Sunday Times responded by saying "[r]ather than the binary response you offered, we are going with a wrap from our own legal writer, Kim Hawkey." Mr. Boyle stated "his goal is to drive a harder debate about a myriad, social, political and economic issues." He further wrote that "[y]ou have a strong voice and strong opinions. What I shall be looking for in addition to opinion, however, is powerful analysis of the issues on our national horizon." When pressed as to whether Mr. Boyle considered Mr. Hofmann's piece in the Sunday Times, the previous week, as a serious piece of analysis, he did not respond. On driving a harder debate, Mr. Boyle was urged "to show it and not say it."
Mr. Boyle's communications could be interpreted to mean the Sunday Times was going to offer a nuanced, reflective and balanced perspective. Alas, the article by Kim Hawkey was titled "When judge courts controversy the Judiciary's credibility suffers". The article has a picture of the CJ with a caption "weary wisdom". The article concludes by questioning what legacy the CJ would leave. The support of Hofmann's perspective is striking.
Neither article calls out the racist assumptions in Hofmann's views about briefing patterns nor his distortions about the constitutional imperatives on transformation. Hofmann previously wrote about merit and "functionally illiterate" black lawyers and ridiculed what he called "transformation entitlement". Hofmann wrote, success in the profession "involves study, arduous preparation and a lot of hard work."
Hawkey's article quotes persons both defending and critiquing the CJ. However, the slant of her article is unmistakable. She formulates her own synthesis, not grounded in mainstream practice and labels Mogoeng's comments as "a change in this traditionally sacrosanct area and sets Mogoeng apart from his predecessors." She writes about a perception of the CJ being biased and labels his conduct as "a risky strategy". She contrasts Mogoeng's speech against the behavior of former CJ's Chaskalson and Langa and concludes by questioning how Mogoeng will be remembered.
Both articles extol the virtues of the former Chief Justices because of their reticence on the subject. They expected supine passivity from the current CJ. Neither article made an attempt to come to grips with the complexity of context. The choices that good leaders make are conditioned by contexts. The JCC noted that CJ Mogoeng could not avoid entering the debate. Instead of providing insight or grounding their conclusion in contexts and comparative authority, the reporting offered illogical and non-contextual comparisons and conclusions.
Mogoeng's response emerged against a backdrop of non-ending attacks against the JSC and distortions of the constitution. If the JSC, under the leadership of our former CJ's were subject to the same kind of misguided attacks, one would be surprised if both Chaskalson and Langa would not have responded. To have not done so would constitute a dereliction of leadership! The Mail & Guardian editorial stated Mogoeng was not aware that he is not a politician. This was a core complaint of Hofmann. The JCC concluded the CJ could not avoid responding. On this point, the JCC labeled Hofmann as disingenuous, a characterization, which can be aptly applied to the Mail and Guardian and Hawkey piece.
Both articles purveyed a false narrative, with the sanctity of dogma, suggesting the CJ had acted improperly and controversially. The CJ's speech was a resolute articulation of the vision of the constitution and it's imperative to achieve equality, against a sustained attack from sectors of society, saying white males were being discriminated against. If they consulted comparative practice, they would have found that what the CJ stated was not improper or controversial. Assuming arguendo it was controversial, mainstream practice has widely recognized that judges have a right to express their views, even on controversial issues, which the JCC affirmed.
Reality and law cannot be constructed on the whims of journalists; it is so because we say so. Comparative practice informs us that the limitations on judges exercising free speech were not applicable to the case of the CJ. For example, it would be a problem if a judge partakes in a political rally. It is also problematic if a judge aligns with a political organization. The opinion expressed by a judge cannot amount to impermissible political endorsement or adopting the agenda of a political party. Neither can the opinion be prejudicial to the effective administration of the courts. Examples would be if a judge expressed disparaging views against a particular race or gender. Here, comparative practice tells us that the context of the statement matters. If a judge discusses the merits of a pending case, that would be an ethical violation. The CJ's statements did not fall into any of these categories. The public was subjected to not only poor reporting but also reporting based on distortions.
A few hours after the Sunday Times notified me that they were not running my piece critical of Hofmann, I received an email from retired SCA Judge Louis Harms, whose name I mentioned in the article. Judge Harms complained about me making a "gratuitous" attack on him. It remains intriguing how Harms received a copy of the article. At the time, the Sunday Times were the only media house that had received the op-ed.
South Africa has been plagued by a few media houses. Media pluralism is an intrinsic element of a free press. In many democracies, media houses are aligned with political parties or their ideological leanings are well known. They have a right to articulate their opinions, no matter how nonsensical, which is part of the marketplace of ideas. The media plays an invaluable role in exposing malfeasance, misfeasance or other improprieties. State efforts to restrict media, or to turn off the lights and do whatever they want without the public knowing must be resisted.
However, the notion that South African media, always comment and report in an "objective" manner, needs to be deconstructed. There is a difference between facts and opinion. If they claim to be truly "objective", than they need to be held accountable for their reporting of facts. Media houses that are partisan and ideological in their reporting but project and image of objectivity if not deconstructed, pose challenges to democracy.
Recently, we saw a public spat being waged between certain reporters from the Mail & Guardian and the new owner of media giant Independent Newspapers, concerning "independent" journalism. One wonders, to what extent certain reporters and media houses are afraid that the hegemonic reporting and narratives will be undermined. The discussion was framed in terms of whether press freedom is owned by the proprietors of the press or the journalist.
Transparency requires that the public knows the ownership of media houses and disclosure of government interests. Transparency also requires that we know the ideological disposition of media house, which support opposition party politics.
If the media is not to be a mouth piece for a faction in society, there is a rich body of literature that suggest in addition to the above questions, press freedom must also be considered in terms of whether divergent voices, particularly the marginalized are being heard. Journalists need to be independent not only from the state, but also independent from economic and political interests to provide diverse, complete and correct information to the citizens. In terms of enhancing democracy, freedom of the press means attaining widespread participation in the public discourse. Citizens or diverse groups should be informed and have their voices heard and views reflected in the public discourse. This view conceives freedom of the press as also encompassing a democratic and societal function.
The 1984 UNESCO Guidelines on the ethics of journalists provide that a journalist is accountable not only to those controlling the media, but to the public at large. Under the guidelines, a journalist should respect privacy, human dignity, democracy and equality. The guidelines require that journalists should be committed to the elimination of war, apartheid, oppression, colonialism and neocolonialism, poverty, malnutrition and diseases, and that they should promote a new word information order. These guidelines go beyond the marketplace of ideas and a notion of an absolute free-market approach to press freedom, towards recognizing a democratic and civic function.
It would be interesting to subject our journalists to scrutiny in terms of the above guidelines and the broader understanding of freedom of the press. Do sections of our media project an image of objectivity and impartiality but operate under an ingrained institutional bias?
The narrative that emerged in the reporting of the CJ's speech and the response to Hofmann's attempt to impeach the CJ, might also lead some to conclude that sections of our media reporting is devoted to a factional cause. It is imbued with a political and ideological tradition, which furthers the sense of settled expectations and entitlement of a minority. In doing so, they dose out large dollops of nonsense. The media in other democracies, would have called Hofmann a loony engaging in divisive political theater. Instead, sections of our media gave him prominent play and made common cause with him.
We need analysis on trends of media reporting and whether the major media houses, which claim objectivity, reference the diversity of viewpoints on contested social, political and legal issues. Is there a pattern of message management? To what extent are major media houses responding to the news and to what extent are they delivering and framing the issues in terms of vested interests?
Message management can partake of many forms. After Hofmann's article and the follow up Sunday Times article of Hawkey the following week, the Sunday Times published a piece in the third week by Advocate Kessie Naidu SC, which critiqued Hofmann. If you first put out falsehoods, as Jonathan Swift wrote, "falsehood flies, and truth comes limping after it". Apart from the damage that falsehood does, it establishes a narrative. What is printed later might prove difficult to dislodge that narrative.
Our democracy can ill afford sanctimonious reporting, which is downright dishonest if not indifferent to facts or reality. The JCC called Hofmann's behavior shocking, provocative and disingenuous. It would be interesting to see whether the media highlight these findings and give similar play and analyses to calls for the Bar to sanction Hofmann.
Ziyad Motala is Professor of Law, Howard Law School
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