The judiciary possesses great power in a constitutional democracy. By virtue of review jurisdiction in particular, a court can set aside legislation passed by the legislature or decisions taken by the executive, despite the latter two institutions deriving their authority from the will of the people as divined in elections. By contrast, members of the judiciary are not elected, are not held accountable by way of regular elections, and serve for a term that is only curtailed by the statutory retirement age of 70.
For this reason, the nature of judicial office poses challenges about how the judiciary may be held accountable to the public it serves. For very serious misconduct, a judge may be impeached but this is a rare occurrence. Accountability is thus enforced by the supervision of higher courts, censure by the Judicial Service Commission (JSC) for clear breaches of the judicial code of conduct, and public critique that can erode the legitimacy of the courts, which is essential for the survival of the judicial institution.
In assessing serious criticism of judges, the imperative of judicial independence needs to be taken into account. Judges should be free to conduct their courts as they deem appropriate. Judicial eccentricity or robust exchanges with counsel are insufficient grounds to discipline a judge. If it were otherwise, the judicial function would be rendered almost impossible.
The balancing of independence against accountability is highlighted in the complaint brought by the Justice4Anni group and the Higher Education Transformation Network against Judge Jeanette Traverso, the Western Cape deputy judge president, following her presiding over the Shrien Dewani trial. Traverso has a reputation as an experienced and able judge; the complainants blame her and her alone for the accuseds’ discharge, notwithstanding clear evidence of a poorly investigated case.
Both groups urged the JSC to discipline Traverso. Justice4Anni compiled a dossier derived from tweets during the trial, newspaper reports and accounts of people who attended the trial on a daily basis. From these sources it was claimed “an intense analysis of the 24-day hearing was made” and, on the basis of this “intense analysis”, the group claimed the judge had been biased against the prosecution and had behaved in a rude and aggressive manner to members of the prosecution team, yet was friendly to the accused’s legal representatives. There had also, in their view, been an unexplained refusal by the judge to allow admission of key prosecution evidence.
The network went further in its contention that the judge had breached her constitutional obligations to hold a fair trial. It observed that the judge and the defence counsel team were Afrikaans-speakers.
On its own, the network concedes, this may not have constituted a basis for so serious a complaint but, in this case, Traverso’s socialisation and background “are extremely pertinent in the context of her ethical breaches”. In support of this argument, the network referred to a criminal case of many years ago, in which, it claims, Traverso behaved in a similar manner. This allegation does not appear to be supported by a detailed analysis of those proceedings. It also referred to Traverso as the daughter of one-time National Party Cabinet minister Blaar Coetzee.
The JSC considered these complaints carefully and delivered an excoriating condemnation of the complainants in a set of written reasons by judge president Justice Monica Leeuw, with which judge president Justice Mohube Molemela concurred. Leeuw noted these complaints were based on the most unreliable of evidence: tweets and other claims by unidentified people, none of whom made sworn statements to the JSC, as well as newspaper reports, none of which were proved to be reliably generated by those who understand court proceedings.
Tellingly, the director of public prosecutions in the Western Cape Adrian Mopp, who led the prosecution team, deposed to statements confirming that they did not consider the judge’s conduct to have in any way justified further action by the prosecution.
Leeuw also dealt with the network’s averments of racism on the part of the judge. After exposing the two complaints as unsubstantiated and unjustified, she denounced the attempt to draw Traverso’s background into the dispute. She classified the network’s statement under the header of racism, noting pertinently, although it is perfectly permissible to criticise a judicial performance vigorously, snide remarks to do with a judge’s personality or background are not permissible.
This decision draws a clear line in the sand: hold judges accountable by properly researched and motivated analyses of a judgment or judicial conduct, but do not produce vague fragments derived from people who appear to know little about South African legal procedure. And do not play the race card in so cavalier a manner. Judging Traverso so viciously on the basis of her father, or that she grew up in an Afrikaans-speaking home, would presumably mean that people who wish to take this route would have a similar attitude to one of the country’s great heros, Bram Fischer QC.
The network has now lodged an appeal, presumably to the full JSC, against this decision. It must be in the public interest for the network to answer the finding that there was no concrete evidence of misconduct, and to explain why it has not complained about the prosecution team that, on the basis of its argument, must have been derelict in not pursuing its further legal options after the discharge of Dewani.