Christine M. Venter is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame
South Africa’s young democracy is in crisis. Riots and looting, high unemployment, charges of corruption and cronyism against the former president, and an inability to transform the economy to make it more equitable, have all led to people losing faith in the government. Despite those challenges, the legal system has remained in relatively high regard. The courts, and in particular, the Constitutional Court, have distinguished themselves by administering justice in a manner consistent with the values of the new Constitution, as well as international human rights norms. By recently ordering the arrest and imprisonment of former President, Jacob Zuma, for contempt of court, the Constitutional Court has sent the important message that the law will be applied in an impartial manner and that no one is above the law.
However, for people to retain their faith in the legal system, and in the Constitutional Court in particular, the justices themselves must be above reproach and must conduct themselves in a manner that sustains confidence in the Court. To do so, at a minimum, they must comport themselves with the Code of Judicial Conduct, which requires judges, among other prohibitions, to refrain from being involved in any political activity, any activities which practice discrimination, or which call their impartiality into question. Generally, this has been the case, even while justices have come and gone. The Constitutional Court justices are appointed for twelve year terms and not for life, unlike the justices of the U.S. Supreme Court. But recent speeches and comments by the current Chief Justice, Mogoeng Mogoeng, have posed a threat to the credibility of the Court and its members.
Mogoeng is no stranger to controversy. Prior to his nomination, some of his prior opinions, while a judge of the North West division, provoked opposition to his appointment, especially those judgments involving gender-based violence. In several controversial rulings, he lowered the sentences of rapists convicted of raping children. He also noted that cases, where the rapist knows the victim, “should … be treated differently from the rape of one stranger by another.”
But it is his outspoken religious views that have caused the most controversy and provoked discussion about how openly a judge should assert his or her religious beliefs. At his interview for the position of Chief Justice, Mogoeng expressed his belief that he had been chosen by God to lead the Constitutional Court. He is also an ordained pastor in a church that believes that homosexuality is a disease that can be cured. Prior to being appointed Chief Justice, Mogoeng was questioned about whether his religious views might have prompted him to dissent to specific paragraphs in the majority opinion in the Constitutional Court defamation case of Le Roux and Others v. Dey. The case involved a teacher who sued some of his students for defamation for posting on a school notice board a picture in which the teacher’s face had been superimposed onto the face of a naked man in a lewd, sexually suggestive embrace with another man. While finding for the teacher due to the specific egregious facts of the case, the Court wrote in para. 182
it is not, and should not be, an actionably injurious slight to offend someone’s feelings by merely classing them in a condition the Constitution protects—be it religion, race, age, birth or sexual (grounds). To simply call someone Muslim, Christian, gay, black, white, lesbian, female, male, an old-age pensioner, atheist, Venda or Afrikaans-speaker is not actionably injurious. Something more is needed.
The Court went on to say in para. 183, “it cannot be actionable simply to call or to depict someone as gay even though he chooses not to be gay and dislikes being depicted as gay.”
Mogoeng specifically dissented from paragraphs 181-189 without providing any reason for his dissent, although he did join the majority’s opinion generally. Some suspected that this specific dissent was prompted by his antipathy towards homosexuality, which would prompt him to find that being called “gay” was a defamatory slur. In his confirmation hearing, Mogoeng acknowledged that specifically dissenting to that particular wording without explaining why, had been a mistake. He claimed he had not been able to fully “apply his mind” to the case, and that he “should have provided reasons. I erred by not providing reasons.” Tellingly, however, in his mea culpa he referred to homosexuality as a “choice,” noting that
It would be corrupt of me, perverse of me…to begin to get at those who are gay and lesbian, just because it’s their choice. It’s my responsibility to ensure that every gay person, every lesbian person, enjoys their rights as protected under the Bill of Rights.
Mogoeng’s comments are problematic because they may cause members of the LGBTQ community to wonder if Mogoeng actually could impartially apply Article 9(3) of the Constitution that prohibits discrimination on the basis (inter alia) of sexual orientation.
Supporters of the Chief Justice have asserted that since he became Chief, Mogoeng’s religious beliefs have not been a factor in his decisions. Mogoeng had promised as much during his confirmation hearing. As further evidence of his ability to set aside his religious convictions, they point to a recent decision by the Court, (Freedom of Religion South Africa v. Minister of Justice and Constitutional Development and Others;) authored by Mogoeng himself. In that case, the Court found physical chastisement of children by their parents unconstitutional, even though physical chastisement may form part of a parent’s religious beliefs. Mogoeng upheld the Gauteng High Court’s decision that physically chastising one’s children was a violation of Section 12(1)(c) of the Constitution, which provides the right to be free from violence “whether public or private,” as well as a violation of children’s right to dignity, guaranteed by Section 10 of the Constitution. While it is true that Mogoeng’s decision upheld the right of children to be free from even “modest and reasonable” chastisement, over parents’ religious beliefs that physical chastisement was an important part of child-rearing, to have found otherwise, based on the circumstances that led to the case coming before the Court, would have led to an uproar.
The case originated when the father of a thirteen year old boy had found him looking at pornography and had “viciously kicked and punched him”. The father was charged with assault and raised as a defense under the common law, the right to “reasonable and moderate” chastisement of a child. After being convicted, the father appealed and the High Court of Gauteng, of its own accord, declared the defense constitutionally invalid. The Constitutional Court was not reconsidering the father’s appeal; rather, it was hearing a challenge to the constitutional invalidity of a parent’s right to physically chastise a child brought by the organization, Freedom of Religion South Africa. However, a ruling in favor of the right of physical chastisement would undoubtedly have been seen as an endorsement of violence against children. It should also be noted that several religious, human rights, and parental groups had also argued against physical chastisement.
Criticism about the role his religious beliefs may play in his judicial approach has not deterred Mogoeng from continuing to publicly assert his views. In June 2020, during an online webinar hosted by the Jerusalem Post, in which he appeared in his capacity as Chief Justice, Mogoeng expressed support for Israel, while acknowledging that the South African government’s policies towards Israel were binding on him. He nevertheless asserted that he was “entitled to criticize the laws and policies of South Africa.” The webinar took place shortly after Israel had announced plans to annex portions of the West Bank; a move which the South African government and U.N. officials had condemned. The Chief Justice cited the Old Testament as support for his position that he could not
as a Christian do anything other than love and pray for Israel because I know hatred for Israel by me and for my nation will, can only attract unprecedented curses upon our nation.
He later doubled down on his comments at a subsequent event and refused to apologize for them. After a complaint was filed against him with the Judicial Services Commission (JSC) by a pro-Palestinian group (among others) in respect of those remarks, the Judicial Conduct Committee (JCC) found that Mogoeng had become involved in a political controversy in violation of Section 12(1)(b) of the Code of Judicial Ethics. In addition, the JCC found that Article 12(2)(b) of the Code—“the use or lending of the prestige of judicial office to advance the private interest of the judge or others”, had also been contravened. Furthermore, the JCC found that the Chief Justice had violated Article 14 (1) which mandates that judicial duties take precedence over other duties and activities because he had become involved with “extrajudicial activities which are incompatible with the confidence in and the impartiality of judges.” He had also failed to respect the separation of power in contravention of Article 14 (3)(a) of the Code. The JCC ordered Mogoeng to apologize and after appealing the decision, he finally did so.
However, that was not the only controversy to embroil the Chief Justice. At a hospital event, during the closing prayer, Mogoeng openly prayed that God would spare people from a vaccine that would “advance a Satanic agenda of the mark of the beast“. (He could only have been referring to the Covid vaccine, as the remarks were made as South Africa was beginning its Covid vaccination program, after suffering from some of the highest Covid rates in Africa.) At a later news conference, the Chief Justice was unrepentant. His comments were again investigated by the JSC. Mogoeng, who is currently on leave until his term ends in October, asserted that he had a constitutional right to express his religious views.
Were he a private citizen, that is clearly the case, but South Africans should and do demand more of their judicial officers. Moreover, the Code of Judicial Conduct prohibits conduct which could undermine confidence in the judicial system. A vaccine mandate case could come before the Constitutional Court and if Mogoeng were still on the bench, no litigant would feel confident of an impartial decision. South Africa has a long and terrible history of the government using religion as a tool to enforce its policies of racial segregation. To allow the most important judicial figure to use his office to advance a personal religious agenda in a new and democratic South Africa would be an anathema to the very principles the country’s Constitution stands for.