Judges must deserve respect and trust

Read More

“How can the life of such a man be in the palm of some fool’s hand?”

These words from the classic rock ballad, The Hurricane, by Nobel Prize winner Bob Dylan, refer to the judge who presided in the real-life criminal trial of Rubin Carter. The fearsome puncher and number one contender for the world middle-weight boxing title spent nearly two decades in prison for a murder he had not committed.

The rule of law is basic to constitutional democracies. For the law to rule a community, court orders must be obeyed by more than the 50% of litigants who agree with them. The system must be perceived to have integrity. Judicial officers must be trusted and respected. 

The legitimacy of legal systems is a complex topic. Only a few thoughts are offered here, on four interrelated overlapping issues: demeanour, bias, reserved judgments and corruption.

That judges are human, is nowadays a popular cliché. They do not wear gowns when they buy groceries. They celebrate birthdays, cry when loved ones die and get angry at road hogs. Sport and music excite them. They do not have to furnish written reasons to justify their support of a team, or love for an artist. Like all of us, they make mistakes and sometimes do silly things.

But they cannot expect litigants to respect their ability to judge fairly when the media report that they drove through a garden wall in a state of drunken stupor and accused the unhappy property owner of racism. Judges must distinguish between speaking out at a braai about the Springbok team they would select or alleged miracles at a religious event; and remarks in a public speech, or — especially — in court.

Former chief justice Mogoeng Mogoeng did not enhance respect for the judiciary with his verbal onslaught on health care, when he alerted anyone naïve enough to take him seriously, that some Covid vaccines may come “from the mouth of the beast with the 666 mark on it”.  Equally unnecessary was Judge Tshifhiwa Maumela’s response to disgraced advocate Malesela Teffo’s accusation in the Senzo Meyiwa murder trial that he had consulted a sangoma: he only consults Jesus Christ.

Much has been said about how non-Christians may feel in a court where an apparent religious fanatic decides on their job, marriage or children. Even when the expressed bias does not apply to a specific case, bizarre statements cast doubt over a judge’s ability to think rationally.

Judges must practise appropriate restraint. A golden rule is to say no more than necessary. Some observers think that Chief Justice Raymond Zondo should not spoil the appreciation for the work done by his state capture commission, by creating the impression that he tries to supervise the implementation of its recommendations, or the entire struggle against corruption. A job done is done. He should focus on his present task to write judgments and lead the judiciary. Scolding parliament for not meeting its obligations belongs in a considered judgment, resulting from a properly argued case. 

Suspended public protector Busisiwe Makhwebane recently referred to an alleged remark by deceased former minister Tina Joemat-Pettersson: the courts side with President Ramaphosa. Assuming that Joemat-Petterson indeed said this, while trying to solicit a bribe, it is no more than a real or faked opinion. Most South Africans would, in any event, probably understand and welcome bias in Ramaphosa’s favour, less because of their enormous trust in him or disregard for the rule of law than their view of alternative presidential candidates. Bias is a part of daily life. Judges should strive to do better, though.

Judicial bias is not a new post-apartheid South African occurrence. Many years ago a respected judge considered the proud posture of a rugby player on the playing field to be a mitigating factor in the consideration of an appropriate sentence. A revered former chief justice referred in a judgment to the “mere desire to stab” (“blote steeklus”) of black people. There was no Judicial Service Commission (JSC) to complain to. Besides, those in the ruling establishment probably agreed.

Two weeks ago, Judge Maumela and Judge Nomonde Mngqibisa-Thusi were suspended by the president, on the advice of the JSC, because of long outstanding reserved judgments — a first in South Africa. Other judges retired before effective disciplinary measures were taken. Again, in the past no formal mechanism for such a process was in place. 

Whether the delay amounts to gross incompetence or gross misconduct — grounds for their removal —– depends on several relevant factors, including the number and nature of the judgments and the duration of and reasons for the delay.

Many judges work under great pressure. For a range of both understandable and unconvincing reasons, especially new judges can easily get trapped in an unmanageable backlog. Debilitating depression may follow. Sometimes judges want to prove themselves by writing outstanding profound judgments, but this takes time while the backlog grows. They may struggle because of a lack of confidence, experience, knowledge or preparation. To litigants and the public, it smacks of laziness, or arrogance and blatant disrespect for people who put their trust, fate and future in the palm of the judge’s hand — in Dylan’s above-quoted words.

A recent case before the court of appeals of Lesotho illustrated a new level of the sickness of delayed justice. After numerous complaints, a principal was demoted to a teacher and transferred to another school. She took the decision on review to the high court. Judgment was reserved … and delivered 10 years later, 12 years after the events. This is the duration of an entire primary and secondary school career. Imagine the practical consequences of a successful appeal. Is the court of appeal simply supposed to judge on the facts of a dozen years earlier? Does the appeal court — and for that matter the delinquent judge when the judgment is written — have a choice regarding the outcome of the matter? Are the facts not a ground for a reasonable perception that the court is necessarily biased in favour of dismissing the application and appeal? 

The solution does not lie in discouraging well-reasoned “scholarly” judgments, as Mogoeng did. It includes appointing competent lawyers to the bench, providing timely assistance to those who might struggle, and the leadership instilling a strong work ethic and rigid discipline.

The ghost in the closet, most deeply affecting trust in the judiciary, is corruption or similar unethical conduct. Judges Nana Makhubele and Mushtak Parker are on suspension while alleged gross misconduct is being investigated, respectively based on a possible conflict of interests and issues around the trust account of a law firm. 

Bribery could be seductively tempting. Let us be careful though. Disgruntled litigants and lawyerly gossip will always be with us. Unsubstantiated rumours, such as those spread by irresponsible petty opportunists like Carl Niehaus, are infinitely more damaging than helpful. 

Any evidence of corruption must immediately be reported to the relevant authorities and vigorously investigated. The lack of hard evidence is sometimes an excuse for overlooking a sensitive problem. Thus, bona fide reasonable suspicions also deserve attention. Evidence can often only be unearthed through a thorough investigation. Otherwise, speak now, or forever hold your peace.

Perceptions of bias and corruption can be as dangerous as the truth. An example narrated by a Kenyan judge, when that country experienced a judicial crisis, is illustrative:  

A judge enters the courtroom. An attorney whispers to the client: “With this judge we can win our case in only one way. We must bribe the judge.” The startled client expresses surprise, but agrees and asks: “How much?” An amount is mentioned and paid. When the judgment is delivered, it goes against them. “What now? I thought we paid to win,” asks the client, on the point of losing all confidence in both justice and criminality. The attorney explains: “The other side must have paid more.”  

But a judge received nothing and gave an honest judgment. The attorney pocketed the money. 

So, people come to believe that the legal system runs on corruption. Then perception turns into reality. One day the judge may say to his heart: “My salary is much less than the income of these crooked lawyers. Why not take some money? They all think I do it anyway.”

Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court, the founding director of the University of Pretoria’s Centre for Human Rights and a former inspecting judge of Correctional Services.

The views expressed are his own.The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.