South Africa’s two most senior judges warned this week that attacks on the judiciary damage the institution
Khadija Magardie
The warning issued by the country’s two top judges this week against attacks on the institution of the judiciary comes amid mounting concern in legal circles about the ease with which South Africans both in and out of government publicly lampoon the courts.
In an unprecedented move, both Constitutional Court president Judge Arthur Chaskalson, and Chief Justice Ismail Mahomed, condemned as “deplorable” attacks on the institution of the judiciary – as opposed to criticism of individual judgements.
Their statement followed African National Congress representative Smuts Ngonyama’s comment in the wake of the Supreme Court of Appeal’s judgement against Allan Boesak that the judiciary is “totally biased”.
Ngonyama subsequently sought to retract the comment, saying he wanted to “make it abundantly clear that the [ANC] has never accused the judiciary of racism … and could not question the decision of an institution of integrity such as the Appeal Court”. Judge Chaskalson and Judge Mahomed recorded the retraction in their own statement, but nevertheless proceeded to “clarify their position” on attacks against the institution of the judiciary.
The judges’ statement came the week after Judge Chaskalson said the government had “temporarily lost its way” by not honouring its obligations to the poor, a rare foray into political debate for the senior judge.
According to Centre for Applied Legal Studies head Professor David Unterhalter the ANC’s comments send worrying signals, particularly in the context of the situation in Zimbabwe, where the rule of law has been completely denigrated.
Saying the comments regarding judicial bias could have been made “emotionally”, he emphasised that officials who sent signals that the rule of law should not be respected, should be subject to censure.
“We’re living in a society that already has little enough respect for the law as it is,” he said.
The head of the University of the Witwatersrand’s political studies department, Professor Tom Lodge, said Ngonyama’s statement on Boesak’s sentencing, which contradicted earlier statements from the ANC accepting the judgement, highlighted “a permanent electoral mode” attitude by the ruling party.
“There is this increasing problem by the ANC of speaking with more than one voice, under the nave assumption that only the particular constituency to which the comments are addressed will actually listen,” he said.
Advocate Gilbert Marcus, SC, a leading constitutional lawyer, has written, in an article to be published in a legal journal, about the string of attacks on the Constitutional Court since its inception.
Marcus says such attacks would previously have been met with prosecutions for contempt, an option no longer available to the courts because of the right to freedom of speech enshrined in the Constitution.
Marcus says that even in the United States it has been recognised that prosecutions for scandalising the judiciary would be appropriate if there was a “clear and present danger” of undermining the administration of justice.
Marcus argues that while criticism by disgruntled litigants is normal, and to be expected, attacks on the judiciary that allege political bias are “of a different order. It is difficult to avoid the conclusion that these attacks are of the most pernicious sort.”
Marcus traces various incidents over the past few years in which the Constitutional Court has inappropriately been accused of bias. He cites the case last year of President v South African Rugby Football Union, in which Louis Luyt applied for the recusal of the entire Constitutional Court on the grounds of political bias.
Marcus dismisses Luyt’s application as the work of a “litigant anxious to preserve a judgement in his favour”.
But Marcus then criticises Steven Friedman, director of the Centre for Policy Studies and a Mail & Guardian columnist, for writing at the time that the court had done nothing to inconvenience the majority party and attributing this to the judges’ “political preferences”.
All of which, says Marcus, was a an “ill- considered and crude attack without even an attempt at the basic research which ought to have preceded so serious a charge”.
He also refutes the suggestion that the Constitutional Court, in particular, has done little to “upset” the ruling party, and lists various cases where it has ruled against the ANC, at both provincial and national levels.
He described as “manifestly absurd” suggestions that the court is reluctant to pass judgements that go against the ANC.
Marcus says critics are ignorant of the complexities of the role of courts in a democratic society, and thus resort to “crude” and “ill-considered” attacks.
Last year Judge Chaskalson and Judge Mahomed also slammed the government for its plans to set up judicial “review boards” that aimed to “discipline” the judiciary and its decisions, calling them misconceived and ignorant.
They said in their statement this week: “The judiciary has a crucial part to play in enforcing the law, and in upholding the Constitution. It accepts the need for transformation mandated by the Constitution. Unjustifiable and unreasonable attacks on the integrity of the judiciary do not help that process. They undermine the constitutional role of the judiciary, erode confidence in its decisions, and damage it as an institution.”