In light of some of the SCA’s (Supreme Court of Appeal) recent decisions, like the decision in Sankie Mthembi-Mahanyele v Mail and Guardian Limited and Another (the M&G Case), where the media’s right to freedom of expression was considered, can it be said that South Africa’s judges make their decisions on political, cultural and racial grounds?
In the M&G Case, the Mail & Guardian published an article stating that the then Minister of Housing had awarded “a massive housing contract to a close friend”. The minister sued the newspaper for damages of R3-million, saying that the article defamed her unjustifiably. The newspaper argued that the media should be entitled to criticise and report on the performance of a member of government’s work without the risk of defamation claims or having to pay damages. The SCA disagreed, although it did hold that slightly more latitude is to be allowed to the media in defamation cases involving members of government (as opposed to where ordinary people are defamed).
The SCA was unable to reach a unanimous decision and the court was split three to two, with the three majority judges being white and the two minority judges being black. So, some argue that the split in the court is racially motivated. A political element emerges from this split too because the majority found for the newspaper (on the basis that the defamation was justifiable) while the minority would have found for the minister.
Slightly deeper scrutiny of the judgments quickly defeats any suggestions of racial or political considerations having led to the decisions, as the judgments of both the minority and majority are well reasoned and convincing. The split of the judges on colour and supposedly political lines was merely coincidental.
And so it should be. Judges are required (by the constitution) to make their decisions independently, impartially and to apply the law “without fear, favour or prejudice” -subject only to the constitution. But the expectation that a person can make a decision without being influenced at least to some extent by their experiences in life, no matter how hard they may try to be impartial, is unrealistic. Even judges cannot blot out their lives when making judicial decisions. If we expected them to do so, we would have to appoint machines to the bench. Fortunately we don’t – we only require judges to be as impartial as possible.
There is no doubt that politics plays some role in the appointment of judges. In South Africa, judges are, when all’s said and done, political appointments; they are appointed by the president with the Judicial Services Commission, the majority of whose members represent government, and the balance being judges and members of the legal profession. No government wants the courts to be overruling everything it does. But this does not mean that the courts should never disagree with government – a tug-of-war between government and the courts does ensure some measure of accountability.
However, if government believes, for example, that the media is being too critical of it, individuals who support this view may be the only ones who become judges. In a democracy, this type of political influence on the judiciary is pretty normal, as democratic governments supposedly represent the will of the people. Ultimately, if we as South Africans are unhappy with judicial decisions, then we should vote differently in the elections.
In the end, the aim is to ensure that judges make their decisions as impartially as possible without becoming anyone’s puppet – including government’s. Given South Africa’s past, we are right to be vigilant and to try to ensure that these ideals are retained to their fullest possible extent.
Of course, it’s possible that we’re all just being conned: most judges are pretty clever, so if they hide their personal or political views behind a well reasoned, convincing judgment, such as in the M&G Case, we would probably all fall for it, even if the decision was motivated by something else.
Toni Erling is an attorney at Rosin Wright Rosengarten , a firm specialising in entertainment and media law based in Johannesburg. Visit the firm’s new website at www.rwr.co.za.