Perhaps Chief Justice Mogoeng Mogoeng misunderstands the separation of powers which dictates that a judge should not engage in creating new law, but merely declare what the law already says.

I was unable to attend Chief Justice Mogoeng’s 2019 Nelson Mandela Annual Lecture, but listened to a podcast instead.

I was underwhelmed, perturbed by the descent of the judiciary into the political domain, and taken aback at his decision to proselytise morally.

The Chief Justice clearly sees the Constitution as a transformative instrument and used the opportunity as a moment for a new beginning, a clarion call to action. He championed a collective and individual responsibility to act to transform society by employing what he calls transformative constitutionalism to end injustices of the past. Additionally, he intoned that this must be done through prayer.

He also warned against the protection of aspirant judicial candidates from what he called uncomfortable questions, and in the same breath railed against the paucity of black people and women in the higher managerial echelons of the private sector.

This is the domain of the commentariat, of ordinary citizens, of champions of civil society and indeed, politicians. In the rarified environment of the court there ought to be a clear distinction between a judicial stricture and a judicial outburst. As AG Noorani, an Indian lawyer and constitutional expert, writes in an essay on the law, “the stricture figures in a considered judgment; the outburst is made during hearings of a case by a judge who is unable to control his tongue, restrain his anger and curb his ego. Outbursts are sheer lapses in manners and taste and are soon forgotten”.

While Justice Mogoeng’s comments at the lecture fall outside the courtroom, there is a grave danger here of infection from having his vision clouded by the dust of conflict. In the manner of a judicial activist, he may well carry this into the court.

The question is therefore raised as to how does a judge’s responsibility to apply the law affect his ability to engage in responsible and high-level moral reasoning? And while this applies to deliberations within the ambit of the law, not on unseemly polemical pronouncements in the public domain by judges, it is evident that there needs to be more than a degree of circumspection in both areas.

It is widely accepted that responsibility to the law means that judges are to discover the results of other people’s moral reasoning – the moral reasoning of the framers of the Constitution or the moral reasoning of legislators or the moral reasoning of earlier generations of judges – and to apply those results to the cases that come before them.

But very few, even of those who think that judges have an inescapable responsibility, sometimes, to engage, themselves, in moral reasoning would deny that it is also important for them to find and apply existing law.

The late US Justice Antonin Scalia, one of the most influential jurists of the 20th century, added his voice to the objection to developments in the US which sought to make “moral experts” out of judges and gave rise to judicial hegemony even when “it is abidingly clear that judges have no better ability than the rest of us in deciding what’s moral”.

Indeed, our own Supreme Court of Appeal supports judicial restraint or minimalism. And so, to address Justice Mogoeng’s invocation of prayer, morality and transformation, one might ask: which of the two approaches is more consonant with the ethos and values espoused in our Constitution?

Martin van Staden, Legal Researcher at the Free Market Foundation and Academic Programmes Director of Students For Liberty in Southern Africa, opines that calls by the ruling ANC for judges with a progressive philosophy who advance judicial activism to give effect to social transformation, are dangerously misguided and will politicise the judiciary, expanding government power at the expense of individual rights.

He argues that “the doctrine of the separation of powers suggests that it is not the function of the courts to advise or cajole the government in matters of this nature… It is the function of the courts to apply the law and the Constitution without fear, favour or prejudice.”

Indeed, our judges are more like umpires than referees. More so, to venture on to the field as a player, as it might be argued Justice Mogoeng has done, muddies the court’s job to adhere to the law and Constitution, and the role of politicians elected by the populace to thrash out issues of concern – moral or otherwise.

As Van Staden says, “the call for judges to creatively apply progressive thinking in their rulings might seem innocent, but it’s the thin edge of the wedge when it fits in with a particular political agenda”. Perhaps Justice Mogoeng misunderstands the separation of powers which dictates that a judge should not engage in creating new law, but merely “declare” what the law already says.

Lawmaking is reserved for Parliament. The chief justice does appear, in his address, to be echoing the call from the ANC for “judges with a progressive philosophy and who advance judicial activism to give effect to social transformation [to be] appointed to the Bench”.

If this is the case, it is a cause for grave concern. Alas, it seems to fit with the Chief Justice’s predilection for transformative constitutionalism. DM