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.