Ralph Mathekga: Public criticisms against Public Protector judgment do not show intellectual rigour


If I don't agree with the verdict of the court, I still have an obligation to read it and engage with its specific reasoning. Anything short of that is just a slander against the judge, writes Ralph Mathekga.

In the last few years we have seen a constant increase of criticisms levelled against judges in South Africa because of the decisions they reach on cases that bear political significance. The latest that have sparked irritation relate to Public Protector Busisiwe Mkhwebane's reports, which are subject to court challenges. In these matters, the courts have agreed to suspend the remedial actions proposed by Mkhwebane until the reports are fully reviewed by the courts. 

Judge Lettie Molopa-Sethosa was criticised for her judgment suspending Mkhwebane's remedial action against President Cyril Ramaphosa until the matter is fully reviewed in court. The word by the learned critics is that Molopa-Sethosa "could not even read out her judgment".

READ | It's lose-lose as Mkhwebane backs Ramaphosa into a corner

Further, ANC Women's League big wig Bathabile Dlamini tore into the judges, accusing some women judges of coming up with incoherent judgments.

The ANC's Andile Lungisa also penned a critical article in the newspaper stating that the judiciary is controlled by the "white monopoly" capital and had no interest in advancing transformation agenda. These criticisms come from different political formations, yet they are show a shared irritation with the judiciary that is said to be out of touch with the people. 

I have great respect for those who publicly expressed their criticisms. They have shown courage to express their views in an open democratic society. It is within their democratic rights to criticise the judiciary. I also believe that the judges should be respectfully engaged and criticised. The people who raised those criticisms are very important and influential in society and I take them seriously as political leaders; hence I took time to respectively engage with the learned views. 

Substantive issues

What I would like to deal with here, however, is the nature of the criticisms; whether they have merits in them and what type of conversations they bring out. To do justice to those criticisms against Molopa-Sethosa, I would like to go into the details of the criticisms and see if there are substantive issues that are being raised against the judgment.

READ | Are the findings against Mkhwebane enough for her to be struck off the advocates' roll?

First and foremost: the criticisms lack detail and they are not available for a rigorous evaluation on the basis of substance. I find it difficult to assess Molopa-Sethosa's judgment on the basis of her oratorical skills. Molopa-Sethosa may not be a good reader, just like myself. I want to believe that English is not our first language as black people; hence we may come across as stuttering when we read out English text.

Does that mean that Molopa-Sethosa's judgment is not legally sound because it was read out by someone who has an African accent? Will it make a difference if Molopa-Sethosa had a nice twang and utilised it to read out the judgment? Does one's accent and reading skill prove intellectual rigour? 

I ask all these questions because I am desperately looking for the grounds upon which a court judgment can be criticised and engaged with. I have personally read many court judgments in South Africa as part of my studies and have published academic articles on some judgments, including the Constitution; yet I am a bad reader as I stumble through English.

READ | The DA's case for the Public Protector and against Busisiwe Mkhwebane

The reality is that there is a lot of Sepedi (Northern Sotho) in my English and I have no shame that I may come across as having a strange accent when I speak English. I refuse to work on my accent, and I want to show that it is not a reflection of my intellectual rigour or my ability to develop and sustain an argument. 

When I read through Molopa-Sethosa's judgment on Mkhwebane, I do not see logical incoherence when it comes to how it was reasoned. This does not mean that I agree with the judgment. If I were to criticise it, I would firstly read it and try to identify a judicial philosophy at play in the judgment and assess its character and faults from that point of view.

The first thing I would do is to assess if the reasoning of the judge logically connects with the final decision reached on the matter in dispute. I might even go further and assess if the principles of law used by the judge to sustain her verdict have been applied and interpreted in a manner that is logically defensible in line with the legal precedent that might be in place. 

When presiding on matters, the judges engage in an interpretative exercise through which the facts of the matter before court are looked at from a prism, with the aim to establish logical sequence of reasoning through which a verdict given is seen as a product of logical reasoning. This is a complex exercise.

Judicial philosophy

Even more complex is the exercise of reading a judgment and understanding which judicial philosophy might be at play and which interpretative exercise is at play. It requires rigorous reading of the judgment in order for one to meaningfully engage with it. Once one has read the judgment, one would have to be specific in criticisms of the judgment.

Those who criticise a judgment on the basis that it is an "overreach", still have to show specific ways in which that is expressed in the judgment. One cannot generally declare a judgment to be an "overreach" without specifically showing exactly how. Most criticisms that were levelled against Molopa-Sethosa are general and dismissive in essence.

READ | OPINION: Mkhwebane is no incompetent

If I don't agree with the verdict of the court, I still have an obligation to read it and engage with its specific reasoning. Anything short of that is just a slander against the judges. 

I am personally critical of some of the judgments that were made by judges in affirmative action cases. However, I owe it to the judiciary to fully read their judgments and intelligibly engage with them in a manner that they can engage with me respectfully, instead of hastily characterising their judgments as bad without properly reading them. It makes no sense to criticise a judgment without even making an effort to engage with its specific method of reasoning.  

Therefore, the public criticisms against Molopa-Sethosa's judgment lack specifics and do not show intellectual rigour. I will not support a judgment that is poorly reasoned, even if the verdict may be in my interest, just as much as I will not support a baseless criticism against a judgment even if the verdict is not what I prefer.

If we are going to refer policy matters to court for arbitration because we could not resolve those matters politically, we owe it to the judiciary to engage with the institution respectfully with some depth since we would be the ones who went out of our way to allow political matters to head to court for arbitration.

If we do not do this, to quote Dr Mbuyiseni Ndlozi, we will be "constitutional delinquents" or simply judicial illiterates. We can do better.

- Ralph Mathekga is a political analyst and author of When Zuma Goes and Ramaphosa's Turn.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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