Chief Justice Mogoeng Mogoeng has ably demonstrated why anyone who wants to occupy his position must be level headed. Anyone with any extreme views on any matter is likely to upset our constitutional framework and likely polarise our diverse society.
His conduct also raises serious questions about whether senior leaders of our society fully appreciate the constraints and limitations which come with the offices they occupy.
When a Chief Justice bursts out at a media briefing and claims to have been quiet for far too long, one wonders whether those in public positions of power must actually be trusted.
Why has he been quiet for so long and what is it that he has been observing which he elected not to talk about? If it is anything material and it impacts society, why has he been quite all along?
It may be that we are now about to see the true colours of a man we may have wrongly given all the respect by virtue of his office and not because he deserved the respect.
Mogoeng’s conduct is not about his religious beliefs and whether he can express them. He has every right to hold any beliefs and to express himself if he so wishes. He, however, does not have any right whatsoever to do so in a manner which undermines the office he occupies, our constitutional framework and the law.
As a jurist, he must appreciate that a belief and facts are not the same thing. Equally having the right to express your beliefs is no licence to cast aspersions on others. Mogoeng obviously seeks to lay claim to his constitutional right to freedom of thought, belief and expression. But he has gone beyond that to lay claim the right not to adhere to the Code of Judicial Conduct and to use the platforms availed to a Chief Justice to undermine the rule of law.
Mogoeng appears to believe that, in addition to his main religious fanatical beliefs, he is entitled to say whatever he wants whenever he feels like wherever he is.
The devil and the vaccine
Mogoeng has publicly suggested the possibility of a Covid-19 vaccine that can alter human DNA. He seems to believe that there is a devil out there working parallel to scientists and/or in cahoots with some to develop a devil-inspired vaccine.
It is for this reason that he prayed to God to intervene. Basic common sense says the development of a vaccine is a pure scientific process handled by experts using tried and tested scientific methods. These are men and women who have developed expertise in their area of their work – some of whom are ardent Christians. It may be that those Christians who are scientists and involved in the development of the vaccine cannot be trusted, at least in the world of Mogoeng.
Mogoeng is not required in our law to prove his religious beliefs. He is fully entitled in law to hold such beliefs and to express them. However, that is not the test regarding his allegations and conduct. The fact that religious beliefs may be bizarre to those who do not believe is not an issue. What is an issue is when someone makes factual statements regarding a non-religious matter which is capable of being proven with evidence and seeks to hide behind religious belief to justify a bizarre proposition as the one Mogoeng made.
The allegations of corruption
Mogoeng suggests that he has been quite for far too long. He was asked to tell us who these corrupt people are. In spectacular fashion, he boldly said that he was not there when these people did the corruption and cannot tell who they are. How does the Chief Justice then make such spurious allegations with the knowledge that all his assertions are based on innuendo and suggestions the courts have rejected.
The courts have set the law that any allegations of malfeasance must be based on fact and evidence and not suggestion and innuendo. As the Chief Justice we expect much better from him on what makes sense in law and what the fundamentals of our law are.
The allegations of the hand of the devil in the vaccine is disheartening coming from a Chief Justice. The twist he seeks to insert in this matter that every medication has side effects does not help explain away his clearly distorted view of the reality.
Side effects are known and recorded as part of the development and approval of any medication. Patients are warned based on scientific evidence and doctors are well aware of the side effects and how to deal with them.
To equate the devil with scientifically proven side effects leaves much to be desired in the reasoning of Mogoeng.
The principle of deference
It is a trite of our law that the courts apply the principle of deference to specialist bodies when they consider matters for which they are established to deal with. Mogoeng must be fully aware that our courts discourage anyone who is not a specialist in the field of vaccine development to express a view on an issue outside their expertise. If the matter of the efficacy of the vaccine was to come to court, the court would avoid making any pronouncements on the technical aspects without any expert evidence.
It may even defer the matter to the body tasked with regulating such matters. In our case and despite this trite, the head of our judiciary has simply strayed into the domain of other experts using religious belief.
The secular state
South Africa is secular state. A secular state is defined as a concept of secularism, whereby a state or country purports to be officially neutral in matters of religion, supporting neither religion nor irreligion.
The judiciary is part of the state and cannot directly or indirectly support religion or be against religion. The issue here is not whether Mogoeng the person is religious or not but whether his conduct as the Chief Justice which is the capacity in which he made the allegations, offends against the principle of secularism.
More than anything, what Mogoeng did was to use a state function to promote and propagate his religious beliefs. In his subsequent statements, he made it clear that he was acting in his capacity as a Christian who holds specific beliefs.
Judges are regulated by the Code of Judicial Conduct, which has as its primary objective defining professional and ethical issues related to judicial office and judicial ethos. Mogoeng may have forgotten that he is no ordinary citizen or judge. He may also have forgotten that in as much as he has rights like all citizens, he is subject to certain restrictions which apply to the family of judges across the world.
The South African Code of Judicial Conduct is based on the Bangalore Principles of Judicial Conduct. As the Chief Justice, Mogoeng is the subject of constant public scrutiny and is required to accept the personal restrictions that go with his office. His assertion that he will not be told what to say or not say is inconsistent with his legal obligations to willingly accept the restrictions that goes with the office he occupies – the same restrictions that apply to judges across the globe.
Mogoeng’s argument of an entitlement as a Christian disregards the fundamental principles that his Christian relationship improperly influences his conduct and is therefore unlawful. He has allowed the prestige of his office to advance his interests as a Christian and to create an impression that Christians enjoy a special position in his work as a judge.
He has effectively manifested prejudice towards those who do not share his beliefs and has rendered himself disqualified to preside over matters which may involve a challenge to the efficacy or otherwise of the vaccine in development.
No scientist can have the confidence that Mogoeng would be neutral and apply an independent mind in a matter involving the efficacy or development of the vaccine.
Mogoeng’s conduct, whether intended or not, may have caused untold and probably irreparable damage to the judiciary. The judiciary as a collective and institution does not benefit from his lack of restraint.
Mannya is an advocate, writer and executive director of legal services at Unisa