/ 13 September 2019

EDITORIAL: Justice must be seen to be done – in court not online

(Mail & Guardian)
(Mail & Guardian)



Journalism these days feels like it’s 80% about trying to establish what’s fake and what’s real; and if there is any basis at all for what people are stating as fact on social media.

But a whole new level was reached this week when a list of judges’ names appeared on Twitter alongside the amount of rands they were paid by the CR17 campaign. It was the shoddiest and most obvious of fake news items — but nonetheless got a surprising amount of traction. And, when the presidency announced two new appointments to the Constitutional Court — good news that should be celebrated by all — the number of quips about whether they were “paid” was deeply troubling.

Judges are accountable to the public — they account through written and reasoned judgments and through the principle of open court — courts are open to all (except when children are involved or for some other legitimate reason) and court papers are accessible to all. It is one of the most transparent institutions of our democracy — deliberately so. And if there is any sign of misconduct, there is a whole system in place to investigate it with the ultimate sanction of impeachment by Parliament.

At the root of the principle of written and reasoned judgments is that they must be open to public criticism. And one of the reasons court proceedings are open is so that people can have their say if they don’t like what they see.

Judges should expect their judgments to be robustly debated, trashed even if it is warranted. Judges should expect their conduct on the Bench to be closely scrutinised. If it seems the judge is not properly listening to both sides, there is nothing wrong with someone saying so.

But no one wins if the independence and credibility of the judiciary is undermined by fake news and false allegations of corruption. When people, with no grounds, start to question the impartiality and integrity of our judges, it will be them who suffer when their case goes to court.

The judiciary is — of all the arms of state — the most fragile. As the old saying goes, the courts have neither a sword nor a purse to ensure that judgments are enforced and their independence protected. The judiciary relies to a large degree on public respect for its effectiveness.

Perhaps this is why Chief Justice Mogoeng Mogoeng has felt it necessary to take time to address the “scurrilous” allegations circulating on social media.Without that public respect, the judiciary’s ability to do its job will be greatly compromised.