Analysis

Chief Justice Mogoeng’s freedom of speech could cost lives – a terrifying and yet not surprising final act

By Stephen Grootes 11 December 2020

Chief Justice Mogoeng Mogoeng (Photo: Sebabatso Mosamo/Sunday Times)

On Thursday and Friday, Chief Justice Mogoeng Mogoeng made comments about religion, God and vaccines. This has led to a heated, multipronged and nationwide discussion about the role of religion within the law, and whether it is right, or appropriate, for someone in his position to make such comments.

While there are some in our society who may be surprised that he has made such statements, in fact, he was always likely to end up in a controversy on these issues. And, like so many in our society at this moment, he is now basing his actions on the more important aspects of his personal identity, rather than his identity as the chief justice of the Republic of South Africa.

On Thursday, Chief Justice Mogoeng, speaking at Tembisa Hospital in Ekurhuleni, said:

“If there be any vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire in the name of Jesus.”

Then on Friday, he spoke again, saying:

“I don’t care about the consequences. We’ve been quiet for far too long, toeing the line. I’m not going to toe any line and it doesn’t matter how many people criticise me. When I believe that I need to address this issue, I’m going to do it.”

He also said:

“I don’t know anything about vaccines. I saw something that says it must be compulsory and you will need to have a vaccination certificate to travel. It must be voluntary. You can’t impose a vaccine on people. Why should I have the vaccine if I am not positive?”

Well. Where does one start in discussing the many issues and live wires CJ Mogoeng’s tripped in his exertions?

The first may be around the right to freedom of speech. Justice Mogoeng appears to believe that he has a right to express himself, and that his position should not be a hindrance to this. However, he himself has written, in his judgment involving Robert McBride’s defamation case against The Citizen:

“Freedom of expression is a right to be exercised with due deference to, among others, the pursuit of national unity and reconciliation…”

And:

“The right to free expression must be balanced against the individual’s right to human dignity.”

It could be argued that this right must also be balanced against the potential harm that the comments cause, and whether they have a basis on scientific fact (in the case of vaccines during a pandemic).

His claim that some vaccines might be “666” cannot be based on scientific fact. He himself admits he has no understanding of vaccines. His comments may reasonably be construed to lead to harm, particularly in a context in which it is currently illegal, during the State of National Disaster, to spread falsehoods about the virus.

When it comes to his position, it may be important to ask what would have happened if he were speaking in his personal capacity. If that was the case, he would not have been invited to speak and pray at the hospital on Thursday in the first place. Consequently, he cannot divorce his own personal views from his position as chief justice when speaking on a public platform. It is insincere to accept an invite as chief justice and then proceed to play a role of private individual.  

CJ Mogoeng also suggests that he is not concerned about the opinions of others, that he does not worry about the “media” or the “usual analysts”.

Apart from the cheap and quick attack on the media, why preach then if he is not concerned about others’ opinions? And why preach in public? If he is not worried about the opinions of others, then why state his opinion in public? Normally, the point of speaking in public is to either inform people of something, or to change the opinions of the people listening. If the opinions of others do not matter to him, then why do it in the first place, Sir?

Then there is the issue of vaccines, science and religion.

It is very likely that the biggest global issue of 2021 will be the availability of vaccines for Covid-19. Already, in many places, there is a growing movement of people who believe, without a shred of evidence, that vaccines are harmful. This is perhaps the most dangerous idea to grip large parts of the world since racism.

The evidence that properly formulated and tested vaccines work is immense. Life expectancy has grown around the world. As one scientific paper, published by the World Health Organisation, notes in its title, “Vaccination greatly reduces disease, disability, death and inequity worldwide”. To over-simply, life before vaccines compared with life now was often nasty, brutish and decidedly short.

To then claim in public that some vaccines may be “evil” or the “666” is just dangerous. It has already led to claims on Twitter about vaccines and race.

It is at least as dangerous as claiming that HIV/Aids can be cured by having a balanced diet of garlic and African potato (it cannot, but taking ARVs allows people living with HIV to live long, healthy lives). After the introduction of ARVs in South Africa, life expectancy jumped by nearly 10 years.

Certainly occupying the position of chief justice must come with the responsibility of knowing what the possible consequences of one’s comments could be. If one cannot be sure what one will say while praying, don’t pray in public. If one cannot reasonably predict one’s comments in public, don’t speak in public.

It would also appear the question of whether it is appropriate for a person occupying the position of chief justice to speak about religion in this way is likely to lead to heated debates in a country that does not need more fire right now.

Perhaps one way of considering this question is to ask what the consequences would be in a hypothetical example that does not involve politics or religion.

CJ Mogoeng was not under any particular pressure, he was not asked to put his reputation at stake for any scientific, or unscientific, position. And still he chose to make these comments which may lose him the respect of many in South Africa.

This may suggest that, in some ways, this is such a defining part of his identity, that he couldn’t see any other way than to express his position loudly and clearly.

It then may be important to attempt to explain his behaviour since he was nominated to the position by then president Jacob Zuma. While it is not possible to know anything for sure without actually having been in extremely close contact with the chief justice over the past decade it may be possible to examine certain aspects of his behaviour through his public actions.

In 2011 he was nominated by Zuma to the position of chief justice. He was seen as a relatively junior member of the Constitutional Court, having served as the judge president of North West for a decade before arriving at the court in 2008. As the person running the courts in Mahikeng, he had only been in charge of six courtrooms. And yet Zuma decided to overlook the then Deputy Chief Justice Dikgang Moseneke, whose track record before becoming a judge, and then as a judge, was seen by many as second to none. And yet Zuma, for his own reasons, picked Justice Mogoeng.

This led to a huge outcry.

Then he was interviewed by the Judicial Service Commission. In that meeting he was asked a question by the then IFP MP Koos van der Merwe: “Do you believe God wants you to be chief justice?” It was the key moment in the hearing.

In the end, the answer was “I think so”. Later, after taking the oath and occupying his position, he appeared to back away from any comments.

At one point, in 2014, he was asked whether he would protect the rights of gay and lesbian people, considering his religious views. His answer could not have been more dogmatic, “It’s my responsibility to ensure that every gay person, every lesbian person, enjoys their rights as protected under the Bill of Rights. There’s no question about that.”

For those who believed his religious views would trump his loyalty to the Constitution, this felt as if they had nothing to fear.

Then, a year later in 2015, Zuma invited then Sudanese leader Omar al-Bashir to be a part of an African Union event in Johannesburg. Under our obligations to the International Criminal Court (ICC), our government had an obligation to arrest Omar on allegations of genocide. A court order was issued to the effect that the government could not allow him to leave the country and that he must be arrested under the treaty we had signed as part of the ICC.

Instead, Zuma allowed Omar to leave the country.

This then meant that Zuma, as president, had defied the courts.

Justice Mogoeng was now in a complicated political position: He was the leader of a constituency – the judges of the country. They would look to him for leadership in an exceptional situation. At the same time, if he failed to act there might have been a risk that they would instead look to the deputy chief justice.

His response was to hold an unprecedented meeting of the Heads of Courts (the Supreme Court of Appeal, the labour court and the provincial courts) at a hotel at OR Tambo International. The representatives of lawyers’ associations, such as the Law Society, the Black Lawyers’ Association and the National Association of Democratic Lawyers, were there too. So was Deputy Chief Justice Moseneke.

At this meeting, all the judges agreed, together, that the chief justice would approach Zuma for a meeting about this issue.

This may be seen by some as Justice Mogoeng being in a position where he had to be seen to lead the judiciary. Otherwise, they would have looked elsewhere for leadership.

Then came Nkandla.

After a long argument around whether or not the remedial action of a Public Protector was binding, the Economic Freedom Fighters led a court action arguing that Zuma had to implement Thuli Madonsela’s findings on the money spent by the government (over R200-million) on Nkandla.

And the chief justice may have seen an opportunity to show that he could lead the judiciary. It must have been he who decided that the court’s unanimous Nkandla judgment would be delivered by him, in full. The theatre of the chief justice delivering, in full voice, a judgment that Zuma had failed to uphold the Constitution and his oath was incredibly powerful.

It led to Zuma having to make an address to the nation in which he still singularly failed to properly apologise.

For many, this was proof that the chief justice was fully independent, a man who spoke truth to power, a person prepared to take on Zuma when our institutions were under threat.

But this did not mean that himself, the man, Mogoeng Thomas Reetsang Mogoeng, had changed.

Now, as others have done, without the figure of Zuma to oppose, he is going back to what you might call his primary identity, presumably that of a Christian with strong beliefs.

And, with just 10 months of his term to go, he is now prepared to speak his mind.

One of the points Justice Mogoeng makes is that he is speaking of his faith and that no one can stop him from doing that. But actually, it may be that in fact, he is making political points that he cannot make personally, he may be speaking politically, through his faith. This makes it difficult to argue against him. But if he were to speak about corruption in the way in which he has without speaking through his faith there might be many politicians and people in positions of power who would publicly criticise him. It may be the speaking through his faith which is protecting him from this.

The chief justice makes much of his faith and says that he is speaking motivated by his beliefs. That is clearly so.

But, in a pandemic, with thousands of new cases of Covid-19 daily, as the United States has lost more people than it did in World War 2, as societies around the world re-enter lockdowns, as our nation is once more gripped by fear, as our continent fears more waves of death, the chief justice is questioning the one thing that could save us: a safe and effective vaccine.

Perhaps the question he should answer is this: Never mind the religion, Sir. Is your behaviour not immoral, after all? DM

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  • It is not a question of morality on its own. It is the broader issue of ethics. He has, while utterly ignorant of the science surrounding that of which he speaks, and mindful of the influence potentially has on people, let fly with his beliefs which could endanger lives. He has said the people are not stupid and they will not automatically slavishly follow what it uttered. But that is a dangerously dishonest view. As pointed out, he may never have been asked to deliver that “prayer” were it not for the influence he undoubtedly has in people’s lives. This goes for most religious leaders too.

  • His fundamentalism was well known and was clearly a problematic characteristic for the position of CJ. But because his judgements on Zuma were welcomed, all was forgotten. This should remind us ( figuratively speaking) that the enemy of your enemy is not necessarily your friend. Even the most flawed can get something right occassionally, and that could be for the wrong reason.

  • Stephen I listened to your radio show on Friday while traversing the karoo from behind the wheel of my car. This gave me the opportunity to listen and think. I do not agree with the content of what he said, although I heard what he said in his context.

    What struck me is that it seems that our society is not schooled in the respectfulness and broad mindedness that free speech requires. From what I read and heard, we get offended too quickly. It’s as if responders assume that what someone says must become the truth. In reality, what anyone says is merely a perspective. I think it would be more beneficial if society was steered in the direction of respect for different opinions without fear that they are the true reality. It could help us break free of the cognitive inertia that keeps us subject to social controls.

    • Yes, we are much too touchy these days, and you make a good point.
      However, some of the utterances of the judge must make one wonder if we can respect these, or at the very least, whether they should give us some pause for thought.
      Imagine, for example, that he had invoked the name of the prophet Mohammad, or the Buddha.
      Would that still have sounded like free speech – or might it be seen as ‘pushing your religion down the throats of others’ – to quote from one of his own speeches- and using your public position as SERVANT of the people to tell them what to think?

  • Never mind his religious beliefs, Mogoeng’s apparent belief that the vaccine is only a cure for infection and not prevention is the most dangerously misleading, fundamentally incorrect and utterly stupid thing he has said.

  • We must also not forget that SA is a multi-religious country. Therefore, the CJ has an obligation to keep his religious feelings private.

  • Mogoeng occupies the highest justice office in the country he is not an elected politician or religious leader. He is not free to say what he wants. He has clearly lost the plot. He is effectively using his status to peddle some strange ideas.

  • Yes CJ – you will need a Covid vaccine shot to travel just like you currently need a Yellow Fever vaccine shot to travel to many countries in Africa and Latin America. You either haven’t travelled much or you do it illegally. You wouldn’t be doing something so immoral now would you?

  • I agree regarding the comment that vaccines heal rather than prevent- super unhelpful – but I think this pertains to the use of Fetal tissue from aborted foetuses in the construction of the vaccine – ie an abortion issue rather than a general wacko remark about vaccines. He should clarify rather than inflame.

    • I never heard any reference to abortion in the ranting of the Chief Justice. Introducing it here without any context whatsoever risks perpetuating further misinformation.

  • At last, a man of standing, although being his opinion on grounds that may not be expected of the majority, that is prepared to offer a voice against the norm that has been flashed by the media ad nauseam.

  • Simply shocking. Trumpian in its impact & breathtaking ignorance. Fodder for the gullible. As a former Law student UCT), I’m stunned by the CJ’s comments. I expected more.

  • Admits to know nothing about vaccines but is too ready to provide an opinion. He is a senior legal person in South Africa, lets hope he understands the law!

  • The CJ seems to be confusing his roles. He must decide whether he wants to appear in public as a preacher, as a politician, as a private individual, or as the CJ of SA. If as the latter, then he must address himself to all South Africans – and not just to his Christian constituency.

    Second, his comments are problematic because they confuse issues. His right to freedom of speech is not at issue. His parochial Christian “private views” are simply not appropriate in a public context. Him identifying his views as Christian does not make them automatically appropriate.

    In the third place, expressing “private views” as a public role player that are downright absurd is also not appropriate. When someone chooses to label their absurd private views as “Christian” it does not make them less absurd.

    And fourth, when someone objects to a life-saving behaviour it is often helpful to call it by another name. For instance, a Yellow Fever vaccination is required before entry into Kenya. Compulsory vaccination is neither unreasonable nor unprecedented.

    This all makes for a garbled and confusing message by the CJ when he should be wearing his legal hat and presenting rational arguments to the nation rather than kooky drivel. He can preach whatever he likes from his church pulpit but when he speaks to the nation as the CJ he is not at his pulpit. The nation deserves better.

  • As a private citizen, Mogoeng Mogoeng has the right to hold and express any opinion that he wishes – no matter how daft. However, as the Chief Justice of a (supposedly) secular country, he needs to watch his tongue. I believe that in this instance, he was present in his official capacity.

    • We came to S.A. 20 years ago & as we’ve watched government & local administrations collapse into inefficiency & corruption the last hope for the country was a strong, independent & impartial judiciary. Listening to the C.J.’s defence of his previous speech was shocking to say the least. Of course he has freedom of speech & is right not to be influenced or concerned about comments on social media, but here we have a man with the most powerful & important legal role in the country spouting pagan mumbo jumbo as if he was speaking from a 12th Century pulpit.

      Most importantly, he has called into question his impartiality. His position calls for him to set aside all personal prejudices & opinions when considering his judgments. Listening to him speak – or more accurately preach – one wonders if he is prepared to do this.

  • I have huge difficulty in understanding this “controversy”, other than an objection to the CJ calling for divine action that is reminiscent of clerics’ actions in the Dark Ages. All I see when I read his comment – “If there be any vaccine that is the work of the devil, meant to infuse 666 in the lives of the people, meant to corrupt their DNA, any such vaccine, Lord God Almighty, may it be destroyed by fire in the name of Jesus.” – is that he is calling for the destruction of any vaccine being produced for nefarious reasons, i.e. to alter genetics, to implant microchips or whatever other fantasy is dreamt up by conspiracy theorists.

    • Desmond, please allow me to help you understand using your own words “…other than an objection to the CJ calling for divine action that is reminiscent of clerics’ actions in the Dark Ages.” By your own admission then, it’s totally inappropriate for a Chief Justice to make such utterances – hence the controversy. Particularly the massive doubt now cast on his ability to separate fanatical religious beliefs in his mind from the secular and objective mindset that is crucial for his judicial responsibilities.

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