Wednesday, August 15, 2007

When (and how) to judge the judges?

The debate sparked by criticism levelled by attorney, Eric van den Berg, in the Sunday Times against a newly appointed black female judge who gagged the Mail & Guardian, is an important one, so although late in the day I decided to add my two cents worth.

In a letter to the Sunday Times Advocate Vuyani Ngalwana (picture) objected to the piece by Van den Berg, arguing that it was inappropriate for lawyers to criticise judges personally and that the criticism could only have been levelled because the judge was black. He argued, in effect, that such criticism would never have been aired had the judge been a white male.

I think it is of utmost importance to assert that lawyers, academics and even members of the public have a right – no, a duty – to criticise judges when it is appropriate to do so. Judges – like the rest of us – are subject to the Rule of Law and cannot be expected to be above criticism and complaint. We live in an open and transparent democracy in which judges should not be shielded from criticism.

Judges – who form the third branch of the government – have immense powers in our new Constitutional order and will often exercise this power in ways that will have political consequences. The work judges do, are therefore just as open to scrutiny and criticism as the work done by members of Parliament of the Executive.

After all, unelected judges have the power to declare invalid legislation passed by the democratically elected Parliament and they are only accountable to higher courts where their judgments are appealed to, and to the general public. Criticism of judges who – in one’s opinion – had made wrong legal or policy choices or had ignored the values of the Constitution serves as an important and valuable check on the exercise of power by the third branch of government.

Despite this strongly held view, I cannot but agree with Advocate Ngalwana that the article by Mr Van den berg was completely unacceptable. I emphatically disagree with the judgment of the Judge in the Mail & Guardian gagging case, and I think an article explaining the legal and policy reasons for such disagreement would have been entirely appropriate.

In the present case the problem was that Mr. Van den Berg went much further than merely explaining why in his opinion the judge had erred by gagging the Mail & Guardian. He attacked the judge personally and left the distinct impression that she was incompetent and stupid because she was an affirmative action appointment.

Such an attack is not much different from the personal attacks launched by the ANC Youth League and others on Judge Hilary Squires after the conviction of Schabir Shaik. Then many of the people who now do not see anything wrong with the Van den berg article correctly pointed out that personal attacks on judges undermine respect for the Constitution and the Rule of Law.

In this case, the attack is even more problematic because it occurs against the background of legal culture still infected with racism. It is difficult to deny that many black judges – and black female judges in particular – are often subjected to thinly veiled racially motivated criticism about their abilities and skills.

I am not saying black judges should be beyond criticism or that such criticism should be reserved for legal journals. Far from it: in my opinion lawyers and academics should not hide in their ivory towers but should take part in robust debate about the wisdom of different judgments by the various Courts.

What I am saying is that those who attack judges personally and hint broadly that they cannot do their job, are really attacking the legal system itself because they plant a seed in the minds of ordinary people who are supposed to rely on the Courts that some judges can never be trusted. This is a dangerous and stupid thing to do, not least because it will further contribute to racial polarization and suspicion mongering in our society.


Michael Osborne said...

I know nothing of the Judge, or of Van den Berg. And I agree that any personal attack on a judge is lamentable -- especially from a member of the legal profession. That being said, I think that making anyone a judge at a tender age is very risky, and perhaps irresponsible. Ensconce anyone on the bench when they are less than a decade from having graduated, and you are placing them in jeopardy of personal attack – irrespective of their race or gender, and quite independently of whether they are “affirmative action” appointments. It is hard to take the new U.S. Chief Justice, John Roberts, very seriously, not just because of his political narrowness, but because he is, and looks, just so young. Is this the bigotry of reverse ageism? Perhaps. (I am nearly 20 years out of law school, and do think I have anything like the maturity to be a judge. But maybe that is just my problem.)

Anonymous said...

Ne kyk hier, i suppose we all can say our say as far as it concerns the judiciary. However i think it is ethically unsound to attack espicially judges in newspapers. Especially when it comes from people from the legal proffesion. Also i think the attack in question is stupid cause when you attack someone it should be on merit. For example cases that she has presided over and of which the outcome was controversial etc. It also makes me wonder how effective is this guy in the execution of his duties. I have come to realise that some of the titles we attain within the proffesion such as advocate is just a title but there is nothing to show for it, cause we are being dwarfed when it comes to legal battles. Yizo

Africannabis said...


In terms of the broad figures, at a national level, the department of justice and constitutional development reported the highest number (86) of finalised cases for the 2005/06 financial year.

The defense department (74 cases) and the South African Police Service (63 cases) respectively had the second- and third-highest number of cases.

Anonymous said...

I may be going blind but I didn't see any reference to the judge's race. Van den Berg's criticised the decision to place an inexperienced judge on the bench to head matters which should have been dealt with by more experienced judges.

Pierre de Vos said...

It is rather formalistic to say unless one mentions the race of the person, race is not involved. The judge is black. The criticism leveled at her is from a white man. There is a long history of disparagement of black people appointed to positions on the bench. Whether intended or not, the criticism creates the impression of racism. This approach to discrimination/racism is in line with the Constitutional Court's understanding that our Constitution endorses substantive equality - not formal equality.