Opinionista Professor Balthazar 15 October 2019

Open season on the judiciary

The manner in which attacks on the judiciary have become fairly commonplace is disturbing in that, whatever the lack of merit in this kind of criticism, the legitimacy of a key pillar of constitutional democracy is weakened each time this occurs.

It now seems to be open season on the judiciary whenever a court makes an adverse finding against a party, particularly when that party has a high public profile.

Take last week — the proverbial ink was hardly dry on the statement issued by the Chief Justice concerning unsubstantiated allegations of judicial corruption, when Dr Iqbal Survé claimed the judge who had granted the Financial Sector Conduct Authority (FSCA) an order to search the premises of Sekunjalo Investment Holdings under supervision of an independent attorney had acted in a flagrantly biased fashion.

It appears the FSCA had approached the court for an order to search the premises of Sekunjalo pursuant to investigations that Ayo Technology Solutions, which is apparently linked to Survé, might have manipulated the share market.

According to reports, Survé claimed the FSCA first approached another judge who refused to grant the interim order before they went to Judge Patrick Gamble whom Survé claimed was a friend both of the DA and Minister Pravin Gordhan, who, with President Cyril Ramaphosa, are claimed by Survé to be the driving force behind the raid. Being an interim order, Survé has every legal right to contest any attempt to make the order permanent, which would allow the FSCA to utilise the information so seized.

Judge Gamble took the unusual step of issuing a press statement under the aegis of the Office of the Chief Justice categorically denying these allegations. But lurking behind this is the question whether the claims of Survé amounted to scandalising the court.

In S v Mamabolo the Constitutional Court dealt with this delicate question; delicate in that the judiciary, as with all public institutions, can be held accountable by way of criticism which, given the constitutional guarantee of freedom of expression, can take on a very robust tone.

But there are limits, however difficult they are to divine, to such speech as Justice Kriegler made clear in his judgment on behalf of the Constitutional Court:

A clear line cannot be drawn between acceptable criticism of the judiciary as an institution, and of its individual members, on the one side and on the other side statements that are downright harmful to the public interest by undermining the legitimacy of the judicial process as such.

But the ultimate objective remains: courts must be able to attend to the proper administration of justice and — in South Africa possibly more importantly — they must be seen and accepted by the public to be doing so. Without the confidence of the people, courts cannot perform their adjudicative role, nor fulfil their therapeutic and prophylactic purpose.

Therefore statements of and concerning judicial officers in the performance of their judicial duties have, or can have, a much wider impact than merely hurting their feelings or impugning their reputations. An important distinction has in the past been drawn between reflecting on the integrity of courts, as opposed to mere reflections on their competence or the correctness of their decisions. Because of the grave implications of a loss of public confidence in the integrity of its judges, public comment calculated to bring that about has always been regarded with considerable disfavour.

No one expects the courts to be infallible. They are after all human institutions. But what is expected is honesty. Therefore the crime of scandalising is particularly concerned with the publication of comments reflecting adversely on the integrity of the judicial process or its officers.”

Survé’s remarks, particularly if there is a failure to substantiate his claims, stand to fall within what Justice Kriegler had in mind when he said in Mamabolo that:

Scandalising the court is not concerned with the self-esteem, or even the reputation, of judges as individuals, although that does not mean that conduct or language targeting specific individual judicial officers is immune. Ultimately the test is whether the offending conduct, viewed contextually, really was likely to damage the administration of justice.”

Manifestly, an unsubstantiated claim that a judge made an order after his judicial colleague had refused to grant the same order and when he acted out of friendship to the amanuensis of the entire litigation is a most serious attack on the integrity of the judiciary as an institution.

None of this should be construed as a denial of Survé’s right to contest the application to confirm the interim order granted by Judge Gamble, or his right to sue FSCA, if his lawyers consider that there is a plausible legal basis therefore.

These are separate questions and show that a person in the position of Survé is not remediless. But, viewed through the prism of the Mamabolo judgment, the reaction to Survé’s comments about the judge was extremely restrained. Obviously one would not have expected the quasi-somnambulant NPA to react, but the presiding judge could have demanded that Survé appear and explain why he was not in contempt of court.

The reaction may well have been the wisest under the circumstances. However, the manner in which attacks on the judiciary have become fairly commonplace is disturbing in that, whatever the lack of merit in this kind of criticism, the legitimacy of a key pillar of constitutional democracy is weakened each time this occurs. DM

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