”Judges must consciously accept the risk that their judgements in crucial areas may be subject to vigorous attack and criticism. This should cause them no distress. A viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination.
”What they are entitled to and do demand is that such criticism should be fair and informed; that it must be in good faith; that it does not impugn upon their dignity or bona fides and above all that it does not impair their independence, because judges themselves would not be the only victims of such impairment.”
These are the words of Ismail Mohamed, the democratic era’s first chief justice; words that should guide us today as we swim through turbulent waters. Can the men and women who so harm the judiciary with careless tongues say their words fall within the ambit of ”vigorous intellectual combat and moral examination”?
We recklessly accuse internationally respected justices of being counter-revolutionary, peddlers of fantastic imperialist conspiracies and enemies of the people. Are we witnessing a slide into Stalinism?
Addressing the 20th congress of the party in the Soviet Union in 1956, Nikita Kruschev railed against the cult of personality which his predecessor Josef Stalin had cultivated. He spoke about the dangers of applying the label ”counter-revolutionary” to those who had a different view.
”Stalin,” said Kruschev, ”acted not through persuasion, explanation and patient cooperation with people, but by imposing his concepts and demanding absolute submission to his opinion.
”Whoever opposed [him] and tried to prove his own viewpoint … was doomed to removal from the leadership collective and to subsequent moral and physical annihilation — [they were labelled] enemies of the people — ”
More than 50 years later this speech has relevance for our own country. So many South Africans who have proven their bona fides in bucketloads are now being called enemies of the revolution. That they sacrificed everything for the sake of the revolution does not seem to matter, neither does it save them from these savage attacks.
The culture of name-calling has damaged the quality of public deliberation. The Human Rights Commission is called a ”kangaroo court” when it demands accountability; judges are ”counter-revolutionaries”; and prosecutors and investigators of the National Prosecuting Authority and its allied Scorpions are branded enemies of the people.
It was painful to watch how the integrity of Deputy Chief Justice Dikgang Moseneke has been attacked for stating the obvious: that he served the people of the country regardless of political affiliation.
His credentials sacrificed at the altar of political expedience, the young lions appear to have forgotten that he was jailed on Robben Island when he was 15 years old, that he was awarded three degrees while serving his sentence and that he served on the drafting committee for the Constitution. It is an irony that Pius Langa, now buffeted by forces who caricature him as a hurdle in the way of revolution, was forced, in his interviews for appointment to the Constitutional Court, to defend his support for that very revolution.
This is what he told the Judicial Services Commission: ”If my concern for people, if my concern for the plight of the poor, of the weak, of the suffering, led me in a particular direction during that time, obviously it was inappropriate to take political affiliation into my office, as a judge — Political parties, chance and people come and go in political parties — but one thing they [the people] should always know is that the judge will deal with each matter on its merits, with integrity, regardless of political affiliation — ”
Our revolution was about freedom and I can think of nothing more counter-revolutionary than actively compromising the institutions that guarantee those freedoms.
Songezo Zibi is a communications manager for a resources company. He writes in his personal capacity