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Is the CJ's ‘clarion call’ cause for concern?

Publish date: 02 December 2019
Issue Number: 852
Diary: IBA Legalbrief Africa
Category: Constitutional

‘Perhaps SA's Chief Justice Mogoeng Mogoeng misunderstands the separation of powers which dictates that a judge should not engage in creating new law, but merely declare what the law already says.’ Leader of the DA caucus in Ekurhuleni Ghaleb Cachalia makes this claim in response to the CJ’s remarks during the annual Nelson Mandela Lecture last week, adding that the CJ ‘clearly sees the Constitution as a transformative instrument and used the opportunity as a moment for a new beginning, a clarion call to action. He championed a collective and individual responsibility to act to transform society by employing what he calls transformative constitutionalism to end injustices of the past.’ Writing in the Daily Maverick, Cachalia questions how a judge’s responsibility to apply the law affects his ability to engage in responsible and ‘high-level moral reasoning’. He says while this applies to deliberations within the ambit of the law – not on ‘unseemly polemical pronouncements in the public domain’ by judges – there needs to be more than a degree of circumspection in both areas. ‘It is widely accepted that responsibility to the law means that judges are to discover the results of other people’s moral reasoning – the moral reasoning of the framers of the Constitution or the moral reasoning of legislators or the moral reasoning of earlier generations of judges – and to apply those results to the cases that come before them.’ However, he argues that very few – even of those who think that judges have an inescapable responsibility to engage themselves in moral reasoning – would deny that it is also important for them to find and apply existing law.

Noting that the SCA supports judicial restraint or minimalism, Cachalia says our judges are more like umpires than referees. ‘More so, to venture on to the field as a player – as it might be argued Mogoeng has done – muddies the court’s job to adhere to the law and Constitution, and the role of politicians elected by the populace to thrash out issues of concern, moral or otherwise.’ Cachalia confirms that lawmaking is reserved for Parliament. ‘The Chief Justice does appear, in his address, to be echoing the call from the ANC for ‘‘judges with a progressive philosophy and who advance judicial activism to give effect to social transformation (to be) appointed to the Bench’’.’ He adds: ‘If this is the case, it is a cause for grave concern. Alas, it seems to fit with the Chief Justice’s predilection for transformative constitutionalism.’

Full analysis on the Daily Maverick site