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.
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.
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 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.
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.
No surprise, coming from a pro-Islamic fundamentalist such as Motala. So much for credibility!
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