‘Freedom of speech also applies to judges, retired judges’

Judges and former judges have every right to express their political beliefs – just like any other South African. They have the right to criticise the government and to take a stand on political issues. 

This is how former judges and constitutional experts responded to Justice Minister Mike Masutha’s comments that judges and former judges should rather not pronounce on political issues. 

In an interview with Media24, Masutha said it was “concerning” that judges – especially retired judges – get involved in litigation against the state and publicly express themselves on “outright political questions”. 

In response, former judge Zak Yacoob said: “They cannot think because we get paid our full salaries someone bought us off. That would seem quite ridiculous.” 

After retirement, judges in South Africa continue to earn their full salaries. 

“In my view judges should be able to make comments on government and on political parties, say so if government is right, but equally say so clearly and strongly when we feel government is wrong,” said Yacoob. 

Former judge Johann Kriegler, who said earlier this year that President Jacob Zuma was using a “tyranny of the majority” to avoid the courts in connection with

Public Protector Thuli Madonsela’s Nkandla report, said he agreed that former judges should not interfere in party political matters, but as citizens of the country they were entitled to express their opinions about politics. 

Judges and former judges do not lose their right to freedom of speech, said Kriegler. 

He referred to former Judge Kate O’Regan, who retired at the age of 52 after her term of 15 years as a judge in the Constitutional Court. 

O’Regan has become an honorary member of the constitutional watchdog organisation Casac, which had been to court a few times over controversial decisions from the executive. 

It cannot be right to say that after retirement you are not allow to take part in public life, said Kriegler. “Must O’Regan sit with folded hands? Or sit and knit? It’s nonsense,” he said. 

Casac spokesperson Lawson Naidoo said retired judges had the same freedoms as other South Africans. 

“It is entirely appropriate that former judges and members of the judiciary who took an oath to uphold the Constitution then should be associated with an organisation that has exactly that as its mandate.” 

Constitutional law professor Marinus Wiechers said it would be an “absolute denial of their human dignity” to disqualify judges and former judges from actively participating in politics. 

“It is absurd, it is ridiculous. “They cannot do away with their civil rights. It is madness.”