Johannesburg - Chief Justice Mogoeng Mogoeng has taken a leave of absence from the Constitutional Court – from the last term of 2013 to the end of the first term of the year to come.
Even though this is normal leave, it follows an unprecedented complaint against the top judge.
Mogoeng is the first post-1994 chief justice to have a complaint lodged against him with the judicial conduct committee of the Judicial Service Commission (JSC).
His predecessors – Ismail Mahomed, Arthur Chaskalson, Pius Langa and Sandile Ngcobo – never faced “petty politics and narrow self-interest”, as UCT Claude Leon Foundation chair in Constitutional Governance Professor Pierre de Vos described Paul Hoffman’s complaint.
Hoffman accused Mogoeng of “contempt of court, attempt(ing) to defeat the ends of justice, bringing the judiciary into disrepute and various breaches of the code of judicial conduct for judges”.
This followed Mogoeng’s “The Duty to Transform” speech at the Advocates for Transformation conference in Cape Town in July, where he protested that “more than 90 percent of appearances before that court (the Constitutional Court) are white and male”.
Mogoeng emerged unscathed from Hoffman’s complaint, with a JSC-appointed high-level panel dismissing the complaint in its entirety in September.
But De Vos warned Mogoeng: “When you roll around in the mud with pigs, you are going to get dirty. A wise judge knows this and avoids getting down with the pigs.”
The Hoffman complaint was not the only headache to emerge this year for Mogoeng, who turns 53 next month. He will enter his fourth year as chief justice staring at another tough challenge.
The Helen Suzman Foundation wants the JSC’s failure to recommend the appointment of Khayelitsha magistrate Nonkosi Saba and advocates Jeremy Gauntlett and Stephen Koen to the Western Cape bench declared unlawful, irrational and invalid.
As chief justice, Mogoeng is the chairman of the JSC.
President Jacob Zuma announced the appointment of Judith Cloete, Mokgoatji Dolamo, Babalwa Mantame, Owen Rogers and Ashton Schippers as Western Cape High Court judges in February following their recommendation by the JSC.
However, the foundation insists that its challenge is not about the individual candidates but the legal process followed by the JSC.
The foundation wants the court to determine how the JSC must exercise its powers when advising the president on the appointment of judges. The constitution dictates that the JSC must recommend fit and proper candidates, but also consider the need for the judiciary to reflect the racial and gender composition of the country.
Mogoeng’s ardent supporter, the Higher Education Transformation Network (HETN), is joining the legal tussle between the foundation and the JSC as an amicus curiae (friend of the court) and has promised “to vicariously oppose any legal attempts by the foundation to undermine the transformation of South African society and the legal profession”.
HETN chairman Lucky Thekisho said the network had filed its papers and was waiting for the date on which the matter would be heard.
Two Constitutional Court justices, Bess Nkabinde and Chris Jafta, are likely to spend much time outside the country’s highest court for most of next year.
On October 18, the two justices filed their Johannesburg High Court application to review the tribunal hearing into a misconduct complaint against Western Cape Judge President John Hlophe.
The tribunal, which started in September, was postponed indefinitely after its president, retired Judge Joop Labuschagne, gave reasons for dismissing objections raised on Judge Hlophe’s behalf.
Justice Nkabinde and Justice Jafta argued that the tribunal was not properly constituted in terms of section 14(3)(b) of the Judicial Service Commission Amendment Act because the complaint it had to investigate was not on an affidavit.
The complaint against Hlophe relates to an incident in which he allegedly approached and tried to influence Nkabinde and Jafta on the corruption case involving Zuma and arms firm Thint in the multibillion-rand arms deal.
The judge president’s tribunal may create administrative nightmares for the Constitutional Court.
According to a senior advocate, the Hlophe saga might result in an unusual situation in which nearly half the Constitutional Court judges are acting for the first time.
The highest court in the land currently has 10 full-time judges.
The advocate, who spoke on condition of anonymity because of the sensitivity of the matter, said Justice Nkabinde and Justice Jafta might have to take indefinite leave while their high court case was heard. “The president will have to appoint two acting judges if their case is not heard during the Concourt’s recess,” the advocate told The Sunday Independent.
With Mogoeng and Justice Sisi Khampepe on leave, Supreme Court of Appeal Justice Nonkosi Mhlantla and Eastern Cape High Court Judge Nambitha Dambuza are currently acting Constitutional Court justices.
The Constitutional Court recently announced that Justice Johann van der Westhuizen would be absent for some time to undergo a medical procedure.
Zuma has appointed Deputy Chief Justice Dikgang Moseneke as acting chief justice and Justice Thembile Skweyiya as acting deputy chief justice while Mogoeng is away. When South Africa’s top judge has found time to perform his duties as head of the judiciary, he has made significant progress in his objective of enhancing access to quality justice and restoring confidence in the courts.
Mogoeng’s national efficiency enhancement committee, which was launched last year, has promised to address matters that have an impact on the courts’ performance. This would include eliminating unnecessarily postponements of cases and the practice of reserving judgments for excessively long periods of time.
Provincial efficiency enhancement committees have been launched in Gauteng, Free State, Limpopo, Mpumalanga, North West, the Western Cape and Eastern Cape.
Officials from the National Prosecuting Authority; the departments of Correctional Services, Justice, Social Development, Health and Public Works; the police; and Legal Aid SA will sit on the committees.
The standard in South Africa is that a case should not take longer than six months between enrolment and finalisation; all matters must be completed within a year.
Mogoeng’s plan has received support from the Law Society of SA, which has committed itself to exploring effective ways of dealing with attorneys who appear in court unprepared and with those who habitually request postponements.
The Law Society has undertaken to deal with arrangements among judicial officers, prosecutors and lawyers to postpone cases unnecessarily as favours to each other.
It admits the practice is detrimental to litigants.
According to the Law Society, the profession is honourable and is bound by strict rules of ethics and professional conduct.
“Conduct that leads to unnecessary delays and prejudice to litigants, as well as excessive fees – or overreaching – (is) not tolerated.”
It says such conduct can be eradicated with the help of judicial officers and prosecutors who report such incidents to its four constituent members: the Cape Law Society, the KwaZulu-Natal Law Society, the Law Society of the Free State and the Law Society of the Northern Provinces.
The Law Society is also monitoring legal fees to ensure that they are affordable to the public.
With the Legal Practice Bill awaiting Zuma’s signature after it was passed by the National Assembly last month, lawyers are united in opposition to the capping of legal fees, as proposed by the bill.
The Law Reform Commission is expected to investigate “circumstances giving rise to legal fees that are unattainable for most people” and has two years from the date on which Zuma promulgates the bill.
The Sunday Independent recently reported that junior advocates earned R160 000 a month, while a successful senior could earn “up to R350 000 a month”, which translates to between R1.92 million and R4.2m a year.
But the Law Society has denied lawyers were expensive, with co-chairman David Bekker saying that exorbitant fees were an exception.