Stephen Friedman
WORM’S EYE VIEW
Our judiciary has landed in a series of storms – over its work rate, its sensitivity to concern about crime and, after Judge John Foxcroft’s judgment, its attitude to violence against women.
So judges are understandably nervous about the future of the courts. Their independence, they say, is under greater threat than at any time since 1994 – but it remains, they add, essential to a free society. They are right: in any democracy, courts need to make rulings free of political pressure. But many of them seem unable to understand some judges’ role in making that principle much harder to maintain.
Judges hold one of the offices whose independence the Constitution guarantees, to provide a check on government power.
They, and the Constitution, are correct to insist that democratic politics is not enough to protect our rights and freedoms. We are entitled to justice, whether or not we can assemble a public majority in our cause.
But in any new democracy – and some old ones – the independence of judges, and others who protect the public, cannot be taken for granted.
Judges have no battalions to enforce their will: they rely on those of the state. And, if they are doing their job, they will sometimes offend those in the state, who give orders to the battalions.
As democracies become stable – and as long as they remain so – their independence may become so ingrained that it seems routine. But that can take decades. Until then, democrats – and the holders of independent offices themselves – must work to foster respect for their independence.
And they cannot do that unless they seek goodwill for their institution among opinion-formers and citizens.
That does not mean tailoring rulings to the temper of public opinion. But it does mean remembering that, while they should not account to politicians, they are accountable to society and need to respect its sensitivities.
The first step is to realise that their independence cannot be assumed and needs to be earned. The Auditor General, Henri Kluever, has learned that.
Early in our new democracy, he seemed to believe that the independence the Constitution guaranteed him placed him beyond the reach of majority values: in a radio interview, he blamed affirmative action for public service ills. The result was predictable political resistance.
Kluever and his staff now restrict themselves to reporting financial mismanagement. And so the legitimacy of the office has grown – when then minister of minerals and energy Penuell Maduna questioned Kleuver’s integrity, the African National Congress-dominated parliamentary committee defended his office.
Judges need to show similar understanding of the fragility of their independence. If they assume that, in a polarised and crime-ridden society, judicial independence is so self-evident a principle that anyone except the malign and the stupid will defend it, they will help to dig the grave of that autonomy which they justifiably value.
They will do that too if they assume that independence places them above society.
Several examples illustrate these points.
Firstly, most judges feel that Maduna – in his new role as justice minister – was unfair to suggest that some of them, especially those in the Constitutional Court, did not work as hard as they should.
High court judges, in particular, insist that many of them work very hard for less than they would earn in private practice.
But judicial aloofness seems to prevent them from expressing this publicly. This creates the impression that judges do not believe that information about their workload is the public’s business. But then they need to invite public scrutiny of their work schedules to show that they do accept their accountability.
Secondly, some judges have shown a lack of interest in public sensitivities. A prime example is Judge William de Villiers in the South African Rugby Football Union case.
Having hauled the president into court, he then found against the government and in favour of Louis Luyt, whose co-operation with the Department of Information during the apartheid era makes him a symbol of the old order. The finding was not the problem – judges are there to make unpopular rulings if necessary. What was damaging to the credibility of the courts was Judge de Villiers’s failure to make his reasons known for months.
His colleagues point out that he finally offered a judgment explaining his decision. But by then the damage was done – the judge had seemed to signal that he did not see any urgent need to offer an explanation.
Another example is the three rulings overturning government use of the Prevention of Organised Crime Act to seize suspects’ property.
Public concern about crime – and politicians’ desire to be seen to be doing something about it – created the impression that the judges cared little for criminals’ victims.
Again, that does not mean that the judges ought to have ruled differently. But in no case did they express sympathy for citizens’ fears, explaining carefully that the court did not believe that the law was adequate in addressing them.
Thirdly, Judge Foxcroft has not ignored public sensitivities: he has thrown down a gauntlet to them.
He may have had good reasons for insisting that a man who raped his teenage daughter should only serve seven years. But his claim that incestuous rape is no threat to society is so out of kilter with public sentiment that the effect can only be to build pressure against judicial independence.
It is a sign of democratic health that senior politicians – including Maduna – were quick to warn a parliamentary committee against hauling Foxcroft before them.
But this health will not last unless the machinery, which allows judges who ignore a widespread moral consensus in society to be held to account, is used vigorously.
And finally, judges need to understand that pressure for a Bench more representative of our society is not an attack on “standards” but a key to protecting their office. Had the Judge de Villiers or organised crime judgments been handed down by black judges – or Judge Foxcroft’s by a woman – they would still have been criticised. But they could not be dismissed as a rearguard action by the beneficiaries of privilege.
Yes, democrats have a duty to defend the independence of the courts. But that task will prove impossible unless judges work far harder at acknowledging their accountability to society.