Criticism of the judiciary: attacking the authority of the courts

Maintaining the integrity of the judicial process

In the Constitution of South Africa, Chapter 9 deals with State Institutions supporting Constitutional Democracy. Under section 194, Removal from Office it states the following;

“(2) A resolution of the National Assembly concerning the removal from office of—
(a) the Public Protector or the Auditor-General must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or
(b) a member of a Commission must be adopted with a supporting vote of a majority of the members of the Assembly.”

The process for dealing with recent objections to the Public Protector’s actions is therefore clear in the Constitution, if not in the rules of Parliament. The Public Protector may be removed from office on a finding of misconduct, incapacity or incompetence by a committee of the National Assembly, and the adoption by the Assembly of a resolution calling for that person’s removal from office with supporting vote of at least two thirds of the members of the Assembly.

These processes must be used in order to resolve the matter of the incumbent, and indeed the political parties and the country as a whole must find a way through the chaos around the Public Protector left by the Zuma years. This should preferably be a battle waged in Parliament rather than in the courts.

The courts have no constituency, no purse and no sword, as the Constitutional Court itself has observed. The moral authority of the judicial process can not be undermined, not because of the individual judges’ ‘hurt feelings’, but because adverse comments on the integrity of the judicial process bring the administration of justice into disrepute.

Attacking the authority of the courts

A Judges Matter correspondent wrote to us at the end of July as follows;

“We always viewed judges, teachers, lawyers, etc, as professionals and noble people with special characteristics. The public brawl we see nowadays is not helpful to our violent, cruel, arrogant and aggressive society, especially, our youth. People will always differ in law, politics and religion, but this must be done in a respectful and dignified manner.”

The cause for controversy was found in paragraph 46 of Judge Potterill’s court order, referring to the report and remedial orders of the Public Protector, where she states that ‘[m]uch of the orders are vague, contradictory and/or nonsensical’.

The order handed down by Judge Sulet Potterill attracted a lot of attention from many quarters, including the EFF. Mr Malema said in a speech on Women’s Day that;

“Education must be free of charge so a girl child can be educated and become a confident judge tomorrow so we get rid of incompetent judges who are threatened by politicians that appear before them.”

He said the current stock of judges were, “traumatized old people”.

“We want women judges that are not scared of male politicians and that are not threatened by male white Afrikaner lawyers before them. We want the judges that are going to say the judiciary must be independent and not be influenced by who is the President.”

In response to some of the EFF’s comments, Judge Johann Kriegler, Chairperson of Freedom Under Law said;

“The EFF is behaving in a manner which is devaluing, delegitimising and breaking down the authority of the courts.”

This will not end here. A series of court challenges around the Public Protector’s remedial action are still being heard.

The central mission of the judiciary

The courts are in some senses a victim of their own success. Their role in holding the line on state capture is widely regarded as being essential. The ability of our courts to consistently hand down credible decisions has made them a favourite shortcut for political parties and civil society, to resolve what are often intensely political differences.

This has led to the springing up of commissions of enquiry on SARS, state capture, disciplinary enquiries and more. Justice Chaskalson, then head of the Constitutional Court, raised a note of warning in the case which found that a judge could not be appointed the head of the Special Investigations Unit (SIU), saying;

“Under our Constitution, the judiciary has a sensitive and crucial role to play in controlling the exercise of power and upholding the Bill of Rights. It is important that the judiciary be independent and that it be perceived to be independent. If it were to be held that this intrusion of a judge into the executive domain is permissible, the way would be open for judges to be appointed for indefinite terms to other executive posts, or to perform other executive functions, which are not appropriate to the “central mission of the judiciary.” Were this to happen the public may well come to see the judiciary as being functionally associated with the executive and consequently unable to control the executive’s power with the detachment and independence required by the Constitution.”

Mediating political strife

This ‘lawfare’ causes damage to the courts. In a warning which all litigants should heed, Justice Moseneke said in a speech that;

“Plainly, courts have become sites of resolving disputes on political power and rivalry absent other credible sites for mediating political strife. A properly functioning democracy should eschew lumbering its courts with so much that properly belongs at other democratic sites or the streets.”

The handing over the salvaging of the state to the judiciary risks the very judiciary we rely upon.