Chief Justice Mogoeng Mogoeng puzzled many people when he said, in a short speech just after he was appointed on Thursday last week, “None of us can afford to fail because an injury by one is an injury by all”.

Some took it to be a misquote of the struggle slogan: “an injury to one is an injury to all”, but advocate Kevin Malunga, chief of staff in the Chief Justice’s office, said Justice Mogoeng also meant to say that the behaviour of judges themselves should be impeccable, because one bad apple could taint the whole bunch.

That issue aside, during his interview with the Judicial Service Commission earlier this month, Justice Mogoeng vowed that he would protect other judges from suffering attacks such as those he endured prior to his interview. He was portrayed by newspapers, civil society groups and critics within the legal profession as homophobic, misogynist and deeply conservative on the grounds of his judgments.

But the protection of judges is still a work in progress. Malunga said in an email response to queries on Thursday night over the apparent attack on the bench by ANC Youth League leader Julius Malema that “the Office of the Chief Justice will take measures to protect the integrity and reputation of judges. It’s obviously not an overnight thing and we will consider discussing the substantive work of the Chief Justice in future”.

Malema on Wednesday took aim at the judiciary when he slammed the courts for being racist following Judge Colin Lamont’s unfavourable ruling in his hate speech case.

Judge Lamont’s judgement – which effectively banned people from singing the words, “dubul’ibhunu” (“shoot the boer”), now declared hate speech – had been criticised by the ANC and its allies, legal experts and journalists alike.

“The judiciary is not transformed, if that means being racist, so be it,” Malema said.

Malema also accused Judge Lamont of having been prejudiced by his “irritation of one person” – i.e. Malema.

The League has indicated that it would be appealing the judgement to the courts as well as the Constitutional Court (some experts have said that provisions of the Equality Act might be unconstitutional because they overreached the Constitution), where the case is likely to be heard by Justice Mogoeng.

The League and its mother body also want to take the issue to Parliament to implement laws that would protect struggle heritage, including songs.

Afriforum, on the other hand, who brought the case in the first place, has said that it was ready to fight any appeal by the League, and rather than muck about in Parliament, they would go international by taking the matter to the United Nation’s international forums against hate speech.

In fact, the spittle on Afriforum’s press release wasn’t dry yet when Freedom Front leader Pieter Mulder said in a statement that he would sommer on Friday already talk to the guys at the Unrepresented Nations and People’s Organisation when he sees them in Brussels.

“The world has to take notice of the Malema judgments and of the ANC’s position on it. If the ANC threatens to go to the Constitutional Court because of Judge Lamont’s judgment that ‘Shoot the boer, shoot the farmer’ is not hate speech, it sends a very negative message about relationships in South Africa into the world. Although the message is an oversimplification of the situation in South Africa, it cannot be expected that the world has to understand the intricacies of the ANC’s politics,” Mulder said from Europe.

Mulder would do well to study the judgment again before the meeting, because he seems to be conflating former youth leader Peter Mokaba’s slogan of more than a decade ago – “Kill the boer, kill the farmer” – with Malema’s rather tamer and more historic “shoot the boer” lyrics.

Meanwhile Helen Suzman research associate Aubrey Matshiqi said it would be improper for the Chief Justice to comment on each apparent attack on judges. “The judiciary must have a thick skin. You aren’t going to stop people form making gratuitous attacks on the judiciary, especially when judges find against them,” he said.

“It is up to us in society to protect the integrity of the judiciary. I’m not sure how the Chief Justice would be able to protect the judiciary, it is not his job.” DM

Read more:

• Racial epithet – a darkness at the edge of Malema’s mind, in Daily Maverick;
• Bad judgement made me think Malema could be right in Daily Maverick.