Judges speak through their judgments

The response to fake news is always tricky – the temptation is overwhelming to jump in and explain in great detail why the news is wrong, misconceived or malicious. The Chief Justice found himself in just such a position and decided to speak out against the allegations. He was joined by Judge Judge President Cagney Musi, of the Free State High Court, as well as Judge President Dunstan Mlambo, of the Gauteng Division.

We are resisting the temptation as best we can, to deal briskly with these vagrantly false allegations, sorely though this will try us. There is a system for holding judges accountable. It is pretty straight forward; if you believe the judicial officer was wrong in law, you can appeal the decision of the court, until you can appeal no higher. If you believe that the judicial officer has breached the code of conduct that applies, you can lodge a complaint, with the Magistrates Commission in the case of magistrates, and the Judicial Service Commission (JSC), in the case of judges.

The JSC do a brisk trade in complaints, with 30 being lodged in the last quarter. The JSC do not disclose the percentage of complaints dismissed for lack of evidence, although rumor would suggest that many complaints are from disgruntled litigants, who have failed on appeal, and want to have another bite at the cherry. What we do know from the matters that are in the public domain is that the process has been characterised by many delays, some to allow judges to challenge the admittedly new process in court, and some arising from so called Stalingrad tactics, with every conceivable point being taken to cause a delay.

There is no third option. Vague allegations are not sufficient to trigger either process, and it certainly must be infuriating to the Chief Justice in trying to pin down these shadowy charges. However, calling a press conference as the Chief Justice did, has a number of drawbacks for the judges.

Firstly, it lends weight to the allegations. From time to time, people will make these accusations. If you respond to one, why not another? What makes an allegation rise to the level of a three-judge bench press conference? Rising to the bait simply adds fuel to the fire.

Secondly, a press conference doesn’t allow for a forensic dissection of the various charges. To spend time explaining the wrongness of the ways of the accusers will not persuade them. Much like climate denialists, they will not let the facts get in the way of a good argument. Fake news does not yield to reason.

Thirdly, and perhaps most importantly, the mean streets of Twitter are not where judges appear at their best. Nuanced, careful argument, which deals with the facts and the law, following precedent but with an eye to the transformative nature of the constitution, cannot and should not be done in 280 characters.

It is the traditional approach that judges speak through their judgments. Judges are, of course, entitled to freedom of speech, and may well wish to contribute to the issues of the day. We would be the poorer if they could not. But when is that contribution undermining of the impartiality of the judiciary? Where are judges pre-judging those issues, and undermining the perception of their impartiality?

The JSC will be meeting in the next month, and will inevitably have to deal with some conduct issues, most importantly that of the long outstanding charges against Judge Motata and Judge President Hlophe. Both cases have had a number of delays, which we have dealt with in some detail. Further delay in the conduct tribunal completing its work is untenable.

However, and possibly more importantly, the JSC may well find itself, as it often does in its role as the appointing body for judges, shaping questions to candidates around the issues of the day. Will they be dragged into the maelstrom of allegations? We would urge them to focus on the most important issues they are charged with – do the candidates meet the criteria for judicial appointment? Will they be good or bad judges?

Good judges have stood us in good stead in the last, difficult, years. We are recognised for the strength of the institution. It certainly cannot be that the institution should bleed its reputation away through the thousand paper cuts that are the retweets of nonsense in cyberspace.