Last week Mogoeng ordered Ngwenya, a former judge, to stop referring to himself by the title judge or Justice Ngwenya, because he had no right to do so.
Ngwenya, who was appointed as a judge of the Western Cape branch of the high court in 2000, resigned for personal reasons. In 2011 he applied for one of several vacant posts and was interviewed by the Judicial Service Commission (JSC). He was not successful.
Earlier this week, Land Reform, Rural Development and Agriculture Minister Thoko Didiza reappointed Ngwenya as chair of the ITB’s interim board until a permanent board is appointed for the entity.
In a letter to Ngwenya, which the Mail & Guardian has seen, Mogoeng’s private office chief of staff, Sello Chiloane, said he had been directed by the chief justice to raise the matter with him “to avoid or ameliorate unintended embarrassment to you”.
“For years now, you have held yourself out or allowed people to regard, address and treat you as a judge or justice, as … is borne out from various documents including the Ingonyama Trust Board’s annual reports. But, as you know, you are not,” Chiloane said.
Chiloane said Ngwenya’s position was “different” from that of a retired judge, who could rightly use the title.
“This is so because you resigned from judgeship and your subsequent attempt to become a judge was unsuccessful,” Chiloane said.
Chiloane said that other judges who had resigned, like advocate Mervin King and advocate Ismail Hoosain, “never seek to be addressed as such because they, like you, resigned and accept that they can no longer be regarded as judges”.
“Unlike serving and retired judges, when you have allegedly done or said something believed to be unethical, the Judicial Services Commission cannot take steps against you, precisely because you are not a judge. It is necessary that only those who are subject to the authority of the JSC are addressed and treated as judges,” Chiloane said.
Chiloane said the time had come for the matter to be clarified and said the chief justice required written confirmation that Ngwenya would actively distance himself from the use of the title and “correct those who address you as such.”
He said a statement would be issued on the matter within seven days.
Ngwenya did not respond to calls from the M&G.