By Professor Ziyad Motala
At times, judges might make legal errors that are corrected on appeal. These errors do not present improper judicial conduct subject to judicial discipline. Otherwise, the independence of the judiciary will be undermined. In some instances, the legal error and conduct are so serious that they invite judicial misconduct proceedings.
Comparative practice provides examples that when a judge commits legal errors that are egregious or motivated by bad faith, it constitutes misconduct and merits subjecting the judge to disciplinary proceedings. These disciplinary proceedings are put in place to ensure that judges are faithful to the law and show professional competence in the law.
A case that raises potential judicial misconduct is the recent decision by Mngadi J in the matter between Chandra Ellaurie and his application to restrain the call to prayer by the Madrasah Taleemuddeen in Isipingo Beach (Durban man wins court ruling against madressa’s call to prayer which ’infringed on his right to dignity’). One hopes that on appeal, the appellate tribunal will look at the judge’s competence and motives.
Mngadi J has been rightly pilloried for his sloppy writing, lack of reasoning and failure to canvass pertinent precedent on the law of nuisance in balancing the competing interests. However, this case should have been thrown out because it did not present a justiciable case or controversy – namely, the Madrasah was not issuing a call to prayer over the loudspeaker, which was made from a neighbouring mosque.
The most troubling part of the court’s opinion is Mngadi J recognizes that applicant’s self-professed hatred of Islam. The judge recites the various disparaging epithets that the applicant uses against the Islamic faith including that “Islam is not a religion protected by the Constitution” and that it is a false and discriminatory religion. Inexplicably, Mngadi J in his judgment writes “the Madrasah’s averments in the answering affidavit in answer to the applicant’s vexatious and irrelevant averments have not been included in this judgment.” In other words, Mngadi J includes disparaging and hateful statements by the applicant against an entire group without any judicial push back against the bigotry and violation of the human dignity of the Muslim population except to say in his judgment that Islam is a religion that is protected by the Constitution.
Imagine if the applicant had said he hates Black people and he does not think they are worthy of protection under the Constitution? How would we view a judge that did not check the applicant and failed to give the applicant a dress down about our Constitution except to write in their judgment Blacks are people and come under the protection of the Constitution?
Furthermore, how would we respond to a judge that repeats the grotesque statements in his decision without any judicial push back to protect the dignity and equality of the group being castigated? Mngadi’s opinion shows disregard for human dignity and equality, which are two fundamental postulates of our Bill of Rights.
If there was an actual case, it would be one thing for the judge to have canvassed the law of nuisance and come to a decision after calibrating the various interests involved. Twenty-six years into our democracy, it is a trite proposition that our Constitution requires that the common law, including nuisance law, must be informed and developed by constitutional values including the spirit of ubuntu. In the calibration, it would be impossible to ignore the applicant’s spite, hatred and animus towards Muslims. That is not addressed at all by the judge.
As far as Ellaurie’s toxic and repugnant statements go, one would have expected the judge to educate the applicant that South Africa is a case study of a plural society. We have emerged from vicious intolerance and seek to transcend the divisions, aspiring towards a rainbow nation that maintains and celebrates pluralism. The South African example also demonstrates, when one looks at the other, one needs to transcend socially constructed stereotypes and tropes about the practices of the other. The mere fact that someone is different cannot constitute a basis to hate or restrict the liberty and freedom of the other.
If Mngadi J referenced the Constitutional Court pronouncements, especially the case of MEC for Education: Kwazulu-Natal and Others v Pillay, he would have ruled that our jurisprudence is based on welcoming diversity and not denigrating the other. Our Constitutional Court ruled that we are strengthened by diversity and should not be threatened by differences. Our triumphs inform and instruct all that human dignity, equality and tolerance is a great centripetal force in fostering nation-building. These edifying lessons, which were lost on Mngadi J have provided inspiration for divided societies in other parts of the world.
The applicant is an unabashed and self-confessed hater of Muslims who believes Islam is illegitimate and should not be tolerated. Inexplicably, Mngadi favoured applicant’s version of the facts with respect to the noise from the call to prayer. Given applicants admitted animus and bigotry against Islam, any independent fact finder would be compelled to find there is little probative value in an assertion by a self-confessed hater that the call to prayer is a nuisance, absent factual findings pursuant to the leading of evidence.
Mngadi J further stated that the call to prayer in the manner it is done is not essential to the religion. In the Pillay case, even though the wearing of a nose stud was a voluntary practice, our Constitutional Court ruled that wearing a nose-stud formed part of Pillay’s South Indian Tamil Hindu culture, which itself was inseparably intertwined with the Hindu religion. Mngadi J, relying on the Pillay case should have informed Ellaurie that both obligatory and voluntary practices qualified for protection under our Constitution. Bigotry has no place in our society.
Another pertinent part of the Constitutional Court’s opinion in Pillay was the directive, what was relevant was not whether the practice was characterised as religious or cultural, but the importance it held for the religious adherents. Mngadi should have stressed the unequivocal message from the Pillay case that our Constitution requires the community to affirm and reasonably accommodate differences.
When confronted with Ellaurie’s ignorance, spite and bigotry, one expected Mngadi J to reference the Constitutional Court’s approach that requires public educational and other institutions must foster an environment in which people from different cultural and religious backgrounds would feel that they are equally respected and valued. Instead of recognising our jurisprudence and our experience of Constitution-making and accommodation, which is often proclaimed world-wide as a constitutional miracle, Mngadi J writes an opinion that takes us back to the vicious days, glossing over prejudice and bigotry found in the apartheid courts.
Mngadi’s failure by omission to push back against bigotry and protect the human dignity of an entire segment of our population does not comport with the Constitution and arguably the Code of Judicial Conduct. The decision is so stark and jarring.
One hopes that respondent on appeal brings up the judge’s conduct and asks the appeal court to make a finding on the competence and motive of the judge and if appropriate refer him to the Judicial Services Commission.
* Ziyad Motala is a Professor of law at Howard University School of Law.
* The views expressed here are not necessarily those of IOL.
Published at Thu, 03 Sep 2020 06:08:00 +0000