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.