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The judiciary is in a peculiar position that seems to demand robust accountability and critical scrutiny of its conduct, writes Nicole Fritz.
Is it fair to criticise Deputy Chief Justice Raymond Zondo for his conduct as head of the Commission of Inquiry into State Capture? Is it acceptable to say that the judges of the Constitutional Court are pursuing a political agenda?
Can it be said that judges have received bribes, which is allegedly why bank statements relating to donations to President Cyril Ramaphosa's CR17 campaign have been sealed?
Can one say that Judge President of the Western Cape, John Hlophe, should not have allocated to himself for hearing the criminal matter involving the former minister of state security, Bongani Bongo, and that the judgment is wrong?
Can one say that Chief Justice Mogoeng Mogoeng had no place making the comments he did about vaccines?
The fact of the matter is that all these things, and more, are being said.
More pertinently, the question is whether it is right and proper, and consistent with our constitutional democracy, that it be said.
For the most part, what we are dealing with here is criticism of the judiciary, why it matters and why it matters differently from criticism of, say, Parliament or the president.
But also implicated in these questions is the issue of the discipline of judges and how that should work.
Judiciary's unique position
To understand why this is so, we need to first appreciate the unique position of the judiciary.
If the emblem of the judiciary is the weighted scale, signalling the careful balancing and deliberation that must be undertaken by judges in arriving at their decisions, that emblem is also appropriate because, in a sense, the judiciary hangs in the balance.
On one hand, they exercise enormous, life-altering powers over the ordinary person and over every organ of government, and yet they are not elected and so cannot be recalled through ordinary political processes. That peculiar position seems to demand robust accountability measures of the judiciary and critical scrutiny of their conduct.
On the other hand, were judges able to be easily recalled, those processes would be abused whenever judges ruled in a way that earned political disfavour, and the principle of an independent judiciary, central to our justice system, would be destroyed.
Furthermore, judges control neither sword nor purse and their principal means of inducing our adherence and respect is because we believe it right that they be offered adherence and respect. Viewed from this angle, it's a fairly airy sandcastle upon which they sit.
Judges also don't and shouldn't typically enter the hurly-burly of everyday political discussion: they speak almost exclusively through their judgments. These last factors argue against a standard which says judges should be subject to criticism, even if entirely unfounded, in the same way that other government actors are.
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In South Africa, we've developed a structure which seeks both to robustly hold judges to account, but also seeks to shield them from unsustained criticism that is damaging, not so much to them as personal office bearers, but to the dignity of the judiciary as a whole and the confidence with which we, the public, view the administration of justice.
That structure includes a system of judicial reviews and appeal, common to almost all judicial systems and recognising that judges can and do get it wrong.
It also includes principles that judges can't ordinarily be sued, not only to safeguard their independence, but also the efficient workings of the judicial system.
The offence of scandalising the court, a form of contempt, has survived constitutional challenge – potentially threatening punishment to those whose criticism of the court and judiciary is egregious.
Yet, while that offence has been retained, it is also recognised under our Constitution that no wrong is done by any member of the public exercising their rights to criticise, in good faith, the work of the courts and the conduct of our judges. It is baseless, scurrilous smears which the offence seeks to protect against.
The structure also includes the Judicial Service Commission (JSC), tasked with overseeing the appointment and disciplining of judges.
Safeguarding the judiciary's independence
This body consists primarily of members of the legal profession.
It is intended to help safeguard the independence of the judiciary.
That said, a judge may only be removed from office once the JSC has found that a judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct, and the National Assembly has adopted a resolution to that effect, supported by a vote of at least two-thirds of its members.
We've yet to see such a process in action in democratic South Africa and the controversy can only at present be imagined should the JSC find a judge guilty of, for instance, gross misconduct, but the National Assembly fails to secure a supporting resolution.
- Nicole Fritz is the CEO of Freedom Under Law.
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