Johannesburg - The complaint calling for the removal from office of Chief Justice Mogoeng Mogoeng is expected to reach the Judicial Service Commission this week, says Institute for Accountability in Southern Africa director advocate Paul Hoffman.
This is the latest twist in the often heated debates, in public and legal circles, on the transformation of the Bench and how the JSC recommends judges for appointment.
Questions have been raised over the few recommendations of women judges and over what some say was an unfavourable approach towards white men on the Bench.
It was these issues Mogoeng spoke about frankly in his address titled “The Duty to Transform” at the Advocates for Transformation annual general meeting last month.
Citing continuing skewed advocate briefing patterns, which he claimed favoured white male advocates, the chief justice questioned critics who complained when a white male candidate was not recommended for appointment to the Bench, while those who were appointed were described as “executive toys”.
Such developments suggested “war has been declared against transformation”, Mogoeng said, adding there was a deliberate attempt to “delegitimise”, “intimidate” and “mock” the JSC.
The complaint itself follows correspondence between the chief justice and Hoffman after the advocate wrote to him “in an effort to understand better your apparent descent into the political arena, in which I believe you have no place, and in the hope that you will reconsider your stance”.
It was unconstitutional to block the career ambitions of any race or gender, Hoffman wrote.
Through his chief of staff, the chief justice replied that Hoffman “may wish to forge ahead with all the steps that you are minded to take”.
The chief justice’s spokeswoman, Lulama Luti, yesterday said: “If a complaint has been laid with the commission, then we will await its processes to unfold accordingly.”
The JSC secretariat confirmed no complaint had yet been received. It is understood the commission, which by law deals with all complaints against judges, would regard such a complaint as very serious.
JSC spokesman Dumisa Ntsebeza was quoted in The Witness as saying: “The JSC would obviously have to take a position on the issue, given that the chief justice is the chairperson thereof.”
Before a judge can be removed from office, according to section 177 of the constitution, the JSC must find the judge suffers from an incapacity, is grossly incompetent, or is guilty of misconduct. Such a finding must be supported by a two-thirds majority in the National Assembly.
Hoffman told The Sunday Independent that, if the JSC could not decide if the chief justice had been in contempt, it should find he was grossly incompetent for his statements. “My concern is about the administration of justice,” he said.
While progress has been made in the appointment of black judges, women remain grossly underrepresented in the judiciary. For example, the 11-strong Constitutional Court only has two women judges.
Two recent vacancies were filled by male candidates.
Earlier this year, the JSC dismissed a discussion document, authored by advocate Izak Smuts, raising the perception that white males were not regarded favourably for judicial appointment.
He resigned from the commission after heated debates.
Sunday Independent