Chief Justice Mogoeng Mogoeng says the lockdown and state of national disaster implemented to curb the spread of the coronavirus cannot function above the Constitution.
The head of the judiciary spoke to News24 this week from under a tree on his farm, where he encouraged citizens to challenge government decisions they deem to be infringing their rights.
“Even a constitutionalist function[ing] state of emergency is subject to constitutional review. The courts have a final say on the validity or otherwise on measures taken in a state of emergency. Our constitutional rights are crucial and there can never be a situation [where] any of us are not subject to constitutional review,” he said.
Mogoeng said this was why he did not agree with the view that courts should have been shut down during the early phase of the nationwide lockdown because people should have the option to challenge any violation of their rights during this period.
“I encourage every citizen who believes his or her rights have been infringed to, without hesitation, approach our courts, so the courts – that are constitutionally ordained to look into the constitutionality of acts or conduct of anyone – can review the matter and decide whether or not citizens have been wronged or citizens have been acting under an incorrect understanding of what the position is,” he said.
Earlier this week, President Cyril Ramaphosa said in his weekly newsletter that every citizen has the right to challenge government’s regulations in court.
Mogoeng said while he does not align himself with the president, he has long maintained that citizens must rely on the courts if they believed government was infringing their rights.
The chief justice said the rising cases of coronavirus in the country and the economic impact were “deeply concerning” to him.
“I am deeply worried,” Mogoeng said, reflecting on the impact Covid-19 has had not only on the judiciary, but on the entire country.
Mogoeng said Covid-19 and the related lockdown have made a bad situation worse in the judiciary, with cases piling up.
Had South Africa’s courts been modernised much earlier, he said, virtual court proceedings would not be a foreign concept that was being resisted from some quarters.
“The first challenge, speaking for the judiciary, is that we haven’t been able to finalise cases as expeditiously as we would want to, as expeditiously as the public is entitled to have us do. The effect of Covid-19 has been to make the situation worse for the judiciary and for the broader public,” Mogoeng said.
While there was an effort to have matters heard virtually, some lawyers have rebuffed the idea.
“You risk people saying, if they don’t succeed, you risk people saying I did not succeed because I was compelled by the court to present my cases under most unusual circumstances,” Mogoeng said.
He said for many years he has been pushing for a court modernisation along the lines of the SA Revenue Service (SARS).
“But you need funding to be able to do that. As you know, the public purse is highly challenged. There are so many key areas competing for the limited resources,” Mogoeng said.
The chief justice said the lockdown has exacerbated the problem of backlogs in courts, that was already a serious concern.
“And the challenge is we really aren’t able to plan effectively around the lockdown because we don’t even know when it’s going to end. We don’t know when phase two is going to kick in, Level 3. And how long that is going to allow the courts to function particularly where it matters the most, at the magistrate’s courts and the high court and the courts of equivalent status,” he said.
Mogoeng said courts would have to prioritise cases impacting the economy and gender-based violence. But he said the biggest concern in the criminal justice system was that courts don’t function alone.
“You got a number of other key stakeholders involved, like the police. Police must have their act in order in relation to criminal matters, the prosecuting authority, witnesses, and the legal representatives, some provided by Legal Aid SA, others funded by themselves.”
Away from the judiciary, Mogoeng’s concerns extend further.
“I am worried about the impact of our inability to function as normal on the economy. I am worried about our inability to function normally and the impact thereof on crime.”
Mogoeng said he was worried that mass unemployment may lead to a spike in crime.
“What will happen to the multitudes who will not have a source of income? Isn’t it likely to contribute to the already more concerning level of crime that we had to contend with so far as a society?”
But there’s a silver lining too, he said.
“This lockdown has given us an opportunity to reflect on how materialistic we are at times and how much need there is out there. The need that must not be theorised about… the need that must not be intellectualised about. But the need that cries out for practical steps [which] should be taken by each citizen who has something to share,” he said.
The chief justice relayed how domestic workers employed to assist with looking after his aged mother had proposed that parts of their salaries be contributed towards the gardener who was at risk of losing his income. He said the lockdown showed practical examples of ubuntu.