According to Zelna Jansen many have questioned whether former Chief Justice Mogoeng Mogoeng can stand for office in the 2024 national and provincial elections. This article was first published by IOL.
As its presidential candidate, the AllAfrican Alliance Movement reportedly chose retired Chief Justice Mogoeng Mogoeng. The ability of former Justice Mogoeng to run for office in the 2024 federal and provincial elections has been questioned by many.
Especially considering that retired judges are paid for life. To shield judges from partisan politics and maintain the independence of the judiciary, judges are paid well and receive lifetime salaries.
Judges will be free to make decisions based on the law rather than seeking political favour, according to the justification. According to section 11(2) of the Judicial Services Commission Act of 1994, “a judge who has been discharged from active service may only hold or perform any other office of profit or receive in respect of any fees, emoluments, or other remuneration with the written consent of the Minister (of Justice), acting after consultation with the Chief Justice.”
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The minister may only give such consent if he or she is confident that it won’t have a negative impact on how justice is administered, the judiciary’s standing or reputation, or the legal system as a whole. It is extremely unlikely that the minister will agree to Justice Mogoeng holding public office while on the payroll of the judiciary from the outset.
The fact that the Constitution is based on the idea of separation of powers is a good justification for the refusal. The judiciary, legislature, and executive all have constitutionally mandated roles that they must respect and keep separate from one another.
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Chief Justice Mogoeng Mogoeng no longer makes decisions but continues to work for the court system. Political office-holding establishes a connection between the legislative and judicial branches of government. The independence of the judiciary may be indirectly hampered by this connection. Any legal expert will find this to be problematic. However, the conversation is not over yet.
Political rights
Section 11 of the Judicial Services Act may be challenged before the Constitutional Court in order to be declared invalid. The Judicial Services Act will be examined by the Constitutional Court to determine how it affects Justice Mogoeng’s ability to exercise his constitutionally protected political right to run for public office under section 19(3)(b).
Political rights have already been defined by the Constitutional Court. According to Chief Justice Mogoeng Mogoeng, who testified on behalf of the court in the case of My Vote Counts NPC v. Minister of Justice (2018), the right to vote in elections and the right to run for public office are intertwined. As a result, under the Constitution, every adult citizen is eligible to run as an independent candidate for election to municipal councils, provincial legislatures, or the National Assembly.
The court ruled that independents have a political right to run for office because they shouldn’t have to join political parties in order to do so. The New Nation Movement v. the President debated these claims (2019).
The Electoral Act is unconstitutional, according to the court, to the extent that it forbids independent candidates from running for office without belonging to a political party. No one should be coerced into joining a group, it stated.
In order for independent candidates to run in both the national and provincial elections, the Electoral Act is currently being amended. This might give the impression that the Constitutional Court and Justice Mogoeng have liberal interpretations of political rights.
However, in accordance with section 39(1)(b) of the Constitution, the court must take into account international law when interpreting the Constitution and balancing rights and interests. The body of laws, agreements, and treaties known as international law, to which South Africa has acceded, governs relations between nations.
Article 10 of the African Charter on Human and Peoples’ Rights played a significant role in the New Nation Movement ruling. Everyone is guaranteed the freedom to associate freely, but no one may be forced to do so, according to the article.
According to a judgment from the African Court, the right to associate freely is violated if someone is made to do so. If others are forced to associate with the person, freedom of association is violated. In other words, the freedom to associate and the freedom not to associate are implied by the freedom of association.
how political rights may be interpreted by the Constitutional Court. Given that he cannot be made to associate, Mogoeng Mogoeng may succeed.
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He is compelled to cooperate with the judiciary in this case, and if he does, he is disqualified from holding public office and running for office. The right to be chosen to serve in a political party office is a permissible interpretation of “associating,” according to the court. The right to association is guaranteed by Section 18 of the Constitution.
The independence of the judiciary, executive branch, and legislature must be protected by the Constitutional Court. If Chief Justice Mogoeng Mogoeng cuts off his ties to the judiciary, it might allow him to exercise his political right.
That will entail giving up his lifetime income and any other benefits that come with it.
* Jansen is the CEO of Zelna Jansen Consultancy and a lawyer.
