A practising advocate – who reportedly lashed out at government about the "senseless regulations…which continue to affect parents like me who are in the midst of divorce proceedings" – has not been asked to step down as an acting judge because of her social media comments, nor has her appointment been 'revoked'.
Instead, advocate Gillian Benson told News24 she can't afford to do further pro bono work [without payment] as an acting judge as the Covid-19 lockdown has severely affected her income.
Business Day reported that Benson took to social media platform Facebook to voice her displeasure in a post in which she wrote: "F***k you South Africa. F***k you".
The now-deleted post reportedly also contained a response by Benson to a comment in which she said: "Ya. But after I said F***k you SA, I had people messaging me to ask why I'm angry. Hahahahaha. And still we love Cyril and his goons."
Business Day is in possession of screenshots of the deleted Facebook posts.
Benson told News24 that she is going through a divorce and was upset about regulations issued by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma at the time. The regulations state that parents sharing responsibilities can share their children provided there is a court order allowing them to do so or where there is an agreement or parenting plan that is registered with a family advocate.
Comment made in personal capacity
"It was a comment in my personal capacity at the time - it had nothing to do with work," Benson said. "I certainly wasn't an acting judge at the time."
In a statement about the posts sent to News24, Benson said "there have been senseless regulations drafted, which continue to affect parents like me who are in the midst of divorce proceedings".
"We require permits to travel with children between parents but can take them to busy malls without permits, for instance. The latest amendment provides that we require these permits, but magistrates refuse to issue them on a daily basis," Benson wrote.
"This has affected not only me, but many of my clients. This is but one of many examples of our regulations which are illogical, irrational and inexplicable, but gazetted with seemingly no foresight of the effect that they might have on the general populace."
She listed a number of prominent people who have voiced their opposition to the lockdown regulations publicly, among them former finance minister Trevor Manuel, current Finance Minister Tito Mboweni, scientists such as Professor Glenda Gray, Judge Hans Fabricius, who presided over the Collins Khoza case, and advocates Nazeer Cassim SC and Erin Richards.
Cassim and Richards wrote a formal letter to President Cyril Ramaphosa in which they expressed concern at the possibility that the National Coronavirus Command Council (NCCC) had been taking far-reaching decisions regarding the measures taken to contain and combat the Covid-19 pandemic, without necessarily being constitutionally mandated to do so.
"I may be an advocate. I may have acted previously as a judge. But I remain a human being first and foremost. And I remain entitled to criticise any legislative measures implemented which I do not agree with," Benson wrote.
"There are millions of South Africans expressing their displeasure right now at these regulations. I will not apologise for expressing my own view and will continue to do so.
'Not an acting judge'
"The choice of adjectives and nouns that I chose may have been unfortunate, but when an irrational regulation with no basis whatsoever and clearly with no thought as to the best interests of parents and children, hinders my contact with my own child, I will remain upset and deeply so. Criticism of choice of language should not be used as a tool to stifle dissent."
She denied that she had been "asked to step down" from the Bench or that her appointment as an acting judge had been "revoked".
"I called [Gauteng Judge President Dunstan Mlambo] and told him what was going on. But I can't step down from a position I don't hold. I'm not a full-time acting judge, I'm just an advocate."
Nathi Mncube, spokesperson for the Office of the Chief Justice, told News24 that acting judges remained on the Bench should they have pending cases that they haven't ruled on. Benson, however, has no outstanding cases.
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He added that Benson was appointed as an acting judge until the end of February 2020, and was asked to return to the Bench on 8 June.
"She engaged with [Mlambo] on Sunday and they agreed that she would not be returning. The judge president, however, doesn't have the power to revoke an appointment [of an acting judge] because he doesn't appoint them – he makes a recommendation to the Minister of Justice and Correctional Services, who has the power to appoint judges."
Benson told News24 she was not an acting judge who was appointed for a specific term, but instead sat on the Bench on an ad hoc and pro bono basis.
"I always do one pro bono stint per term. You get called on the morning of your appointment date, in this case 8 June, you sit for five days and then you're not a judge anymore. This is a voluntary service some advocates perform because of backlogs.
"One of the reasons I requested that I don't act as a judge from 8 June was that I can't afford to do pro bono work for a week. The last time I volunteered was in February, before the lockdown. But now I can no longer work for a week with no income. The judiciary has taken no issue with my [Facebook] posts."
'Judicial officers are human beings entitled to opinions'
In her statement, Benson said: "My last acting stint was in February 2020. At no stage did I hear any matter for the State, but even if I had, I would have exercised my judicial impartiality as I have done with all matters that I have dealt with.
"Judicial officers are human beings and are entitled to their opinion, however strong they may be, but this does not mean that having an opinion makes one unable to adjudicate a matter judiciously.
"...even our Chief Justice Mogoeng Mogoeng expressed his strong belief in his religion and this certainly did not disqualify him from sitting as head of our apex court. No one can fairly say that he has not been unable to carry out his judicial functions as Chief Justice.
"The current lockdown has caused great angst for individuals such as myself, in our personal lives and beyond. While professionally I am unable to earn a proper income, the regulations have had a far greater bearing on other aspects of my personal life as well as on other South Africans," Benson said.
Benson’s attorney Ian Levitt told News24 that reports that her position as an acting judge had been revoked would be referred to the Press Ombudsman and that the circumstances relating to the complaint would be ventilated there.
"We will be happy for the public to have full access to the process. We can’t pre-empt the complaint or the adjudication thereof until it has been ruled upon."