Opinionista Elisha Kunene 18 November 2018

Stifled legal discourse and debate in SA impoverishes the democratic process

On the morning of Friday 16 November, the Mail & Guardian published an article detailing an interview with the head of the South African judiciary, Chief Justice Mogoeng Mogoeng. I would not usually know what’s said behind Mail & Guardian paywalls, but excerpts of this article were sent to me by a few people who thought it concerned me directly. Having been forced to spend most of the day thinking about this, there are a few brief points which I believe are worth making.

Elisha Kunene

Elisha Kunene is a trainee human rights lawyer, working primarily in mining, customary law and land affairs. He spends his free time podcasting about the Constitutional Court of South Africa, being devastated by Arsenal results and arguing about Bernie Sanders. Elisha writes in his personal capacity, and against his better judgment. He accepts hate-mail on Twitter.com at @Eli_Kunene.

The article is headlined Mogoeng absent for more than half of ConCourt judgments, but its scope extends to a number of criticisms of the Chief Justice, including his travel expenses and the impact of the acting judges on the Constitutional Court.

Under the heading “I have enemies; I don’t know them” the Chief Justice outlines that he received a tip-off from a colleague outlining a conspiracy to discredit him, including two professors who would write critical articles about him, and that the colleague mentioned “an article in Daily Maverick by a former law clerk at the Constitutional Court.”

On 28 September 2018, I wrote about the need to fill the court. I highlighted the unusual lack of continuity which has defined the current Constitutional Court bench, the risks of too many acting justice appointments and advocated for the filling of the vacancies at the court. I am the only former Constitutional Court clerk who fits the description.

The description of detractors as “enemies” is, to say the least, unsettling. I do not know if the Chief Justice has an organised alliance of enemies. But, having been forced to spend most of the day thinking about this, there are a few brief points which I believe are worth making.

I am not part of any campaign. If I was somehow tricked into participating, then someone owes me money or a fellowship or something. I wrote opinion pieces before I was employed. I stopped publishing while I was at the court specifically so that my writing would not be thought to represent any opinions or agendas other than my own. All of my irresponsible opinions are available for free on Twitter. I write only for Daily Maverick so that when you Google me the first thing that pops up is not my Soundcloud.

The thought of the Chief Justice thinking I might be part of such a scheme saddens me. I thought many of the opinions surrounding him when he was appointed were slanderous — revealing a contempt for many things I myself was — and I never forgave some of the lawyers who perpetuated that campaign. You did not have to have an opinion on whether he was the best candidate for the job to see the malice in much of the coverage.

I like Mogoeng Mogoeng. He always stopped in the hallways and greeted me with a smile. Never failed to acknowledge me and often made an effort to make it clear that he knew who I was and appreciated my work.

In 2017 I would often be at my desk late into the night and he would walk past my office softly singing a song of worship. It reminded me of my father. He would occasionally call the clerks together and remind us of how fortunate we were to be in that position and why we all had to carry out our responsibilities diligently and conscientiously. That was my first working year and the adjustment was really difficult, but I found the Chief a calming and affirming presence.

My liking for Mogoeng Mogoeng should not matter. The only pieces I have written were my substantive opinions relating to the management of the judiciary, a topic I have been passionate about for years now. Nevertheless, it seems my views got wrapped up with a whole lot of other opinions which seem pointed at impugning his commitment to his work and his integrity.

I have had friends and peers contact me throughout the day to express concern that I had become embroiled in an ugly political squabble. It’s my birthday today. And it was a huge day for the students I teach. Yet I spent most of my spare time (over)thinking about all the people who have associated themselves with me or vouched for me professionally and whether I owed them explanations or apologies. But I did not become a lawyer to worry about and serve the powerful. Quite the opposite.

I think my experience of stressing today is demonstrative of why South Africa is starved of critical legal discourse and debate. Why legal professionals are strictly silent and the handful of legal journalists do little more than summarise court proceedings. It’s too difficult to share any opinion — or at least any opinion that risks being impactful — without alienating professional allies or joining a political proxy war. This tremendously impoverishes democratic processes and forces young South African lawyers to look to other jurisdictions for some aspects of their legal education. Our generation needs to start turning this around.

The Chief Justice raised some points which I hope will lead to more conversation. His role is indeed different to that of his predecessors. I know for a fact that Mogoeng Mogoeng is an incredibly hard worker. I have woken up to the emails he sends at 3am. He’s not off at Mar-a-Lago playing golf with his business partners. If he’s missing more than half of the court’s hearings then we do indeed need to decide if that is important to us.

And if it is, then we may need to change his job description, in ways which may include restructuring the Office of the Chief Justice, redesignating some of his responsibilities to other public officers, or reshaping the court calendar and limiting the performance of some functions to off-term periods.

Maybe these decisions are, in fact, questions of how the leader of the judiciary chooses to prioritise his commitments, rather than a feature of the statutory scheme controlling the judiciary. If that is so, we should anticipate his answers to the questions raised.

Either way, I believe, we should continue to insist that the public has a view on this crucial issue. DM

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