I have, at times, been rather scathing of some judges on our High Courts – including of Judge President John Hlophe and Judge Motata of the Transvaal Provincial Disvision of the High Court. Yet I have criticised Helen Zille for saying that Judge Nathan Erasmus is allowing himself to be used by the ANC to smear the DA.
Thoughtful readers of this Blog have suggested that I might have been wrong about my criticism of Zille or – worse – that I might be guilty of hypocrisy myself for having one standard for myself another for Helen Zille. This is an interesting and important issue and worth thinking about in a spirit of critical self-reflection and open engagement.
I could, of course, argue that there is a difference between myself – a lowly law professor – and Helen Zille – the Leader of the Official Opposition – and that she should be more circumspect than I need to be when criticising judges, but that would be a cop-out. Better to think through the principles that should govern critique of judges and take it from there.
In my opinion the first principle is that judges are not above criticism and that it is the right of every citizen (and sometimes the duty of citizens) to criticize members of the Bench. In the past, judges had a far too easy time of it because they could hide behind the notion of contempt of court to silence critics and escape ridicule. Now we understand that judges – unelected as they are – must to some extent be held accountable by the public and by academics and that vigorous and robust criticism of the decisions handed down by judges strengthen rather than undermine respect for the judiciary.
Through contestation and debate about the content of individual legal decisions we will enhance the legitimacy of the judiciary because we will keep judges on their toes and make them aware of the views of the electorate which they should not slavishly follow but of which they must at least be aware of.
The second principle is that it is imperative to focus one’s criticism on what a judge has said or done, rather than on who the judge is and where they come from. When one thinks a judge has made a mistake one should provide arguments for why he or she has made this mistake, rather than merely stating that the judge is a bad or biased person because of his or her history or race.
This means that personal attacks on judges by, for example, impugning their integrity or suggesting that they are incapable of acting in a fair and impartial manner because of who they are (whether they are black or white, say) or because of their personal history should almost always be avoided because this may well undermine respect for the judiciary and affect the independence of the judiciary.
Criticising the decision of judge Hillary Squires in the Schabir Shaik case because he happened to have been in a white judge in Zimbabwe was therefore untenable. The same holds for suggesting that the judge in the Wouter Basson case only acquitted Basson because the judge happened to be the brother of a previous leader of the far right Conservative Party.
The third principle is that where one suspects that a judge is biased or lacks impartiality or that his or her credibility is potentially fatally compromised because of what a judge has said or done, one should as a general rule try and address such concerns via the credible avenues available and should not resort to ad hominem attacks. This means one should choose to challenge the impartiality of a judge in Court or should take ones complaints about the personal conduct of a judge to the Judicial Services Commission (JSC) before impugning the integrity of a judge in the media (or on this Blog, for that matter).
In extreme cases, where a judge has done or said something that one finds utterly repugnant and in conflict with the values of our constitutional system and where the official channels have not yielded any results, it may be one’s right and duty to speak up and to criticise the judge as well as the institutions who one thinks might have failed to credibly address the repugnant behaviour of the judge.
This is what retired Constitutional Court Justice Johan Kriegler did when he wrote a scathing article in the Sunday Times after the JSC had decided not to proceed with impeachment proceedings against Judge President John Hlophe. Kriegler could point to undisputed facts (a substantial amount of money was paid to Hlophe by Oasis and Hlophe then did a favour for the company) and could question the wisdom of Judge Hlophe’s continued membership of the judiciary.
Looking at these principles I have to confess that I have, at times, sailed rather close to the wind and might once or twice have gone too far. There is a fine line between robust and vigorous criticism and undermining respect for the integrity of the Bench. For example, I was rather scathing of Judge President Hlophe even before the JSC had decided not to begin impeachment proceedings against him. That might have been wrong.
This is not to say that one should treat judges as gods and that one should not be allowed to make fun of judges and their decisions and even ridicule them for what they have done or said. However, it does mean one should be extremely careful to suggest that a judge cannot be trusted because of who he or she is or where he or she comes from.
On reflection this is also why I have been rather critical of Helen Zille for saying that Judge Nathan Erasmus is allowing himself to be used by the ANC for accepting to chair a Commission of Enquiry set up by Premier Ebrahim Rasool in terms of the Western Cape Provincial Commissions Act 10 of 1998.
If Mrs Zille thinks that the judge had made a mistake by accepting this appointment, she should challenge the appointment in Court. She should also be free in the meantime to say why judge Erasmus – in her opinion – should not have accepted this position and to argue (even robustly) that his decision was not in line with the principles set out by the Constitutional Court.
But she went further. In an attempt to undermine the credibility of the Commission and to score a short term political advantage for herself and her party she suggested that Judge Erasmus was a political lackey of the ANC. She thus attacked him personally and impugned his integrity without following the legal rout first and she did this for short term political gain.
Such attacks are very problematic because they have a tendency to be remembered. The next time judge Erasmus is called upon to consider a controversial case as a High Court judge, people will remember this attack and those who oppose his decision will then be able to point to the comments made by Zille to delegitimise the decision – no matter how sound that decision might be in law.
The courts only work because they have a certain amount of legitimacy. We obey and respect the decision of judges in part because we think that those judges have a certain amount of credibility. When politicians undermine the credibility of judges for short term political gain, they undermine the legitimacy of our judiciary. And without a legitimate judiciary the Constitution will become no more than a paper document.
Will you now also take responsibility for the other accusations you leveled against her? As it was not just about the criticism of a judge.
She actually argues you point for point. Although not quoting you directly she answers most of what you have said, yet you choose to just hide behind the one accusation of criticising a judge.
From my post on thoughtleader:
Here are some of your other allegations:
1. You have accused her of setting up a biased commission to clear herself. (yes it is directly implied)
“Now Zille seems to suggest that she does not believe in freedom of expression because she does not trust the truth to come out in the end. She therefore argues we should stop a commission of inquiry because allegations might be made there that are untrue and damaging to her and the party. This is a deeply illiberal stance and flies in the face of the values espoused by the DA and Zille, and creates the impression of serious hypocrisy.”
2. You have accused her of not believing in freedom of expression. Yes you did use the words “seems to suggest”, but they were merely used to inoculate yourself against this criticism as in the very next sentences you imply it to be true (”therefore”). At the very least she has said that it is untrue and therefore you should feel obligated to defend or revoke your “seems to suggest”.
Will you respond to these and her other points?
Time and again you avoid a point by point rebuttal of arguments. Objectively some arguments carry more weight and unanswered ones are top of the list. There is merit to some of what you say regarding criticising the judiciary but on pure logic you have been completely outdone.
On 1: Until exonerated by the Erasmus Commission it is not clear whether Ms Zille’s own commission was set up with such a mandate that it would clear her or not. Either you say that she is beyond reproach and we have to believe her because she says so, or (like me) you ask what is the harm to have another investigation if she has nothing to hide. You obviously believe her implicitly and blindly. I do not. She might be cleared but like Saddam Hussein who resisted weapons inspectors (despite having no weapons of mass destruction) her actions unfortunately suggests that there is something to hide.
On 2: If one believes in freedom of expression one allows people to say what they want and trust that if one disagrees or thinks what was said is untrue one will have a chance to say so and rebut charges so that ultimately the truth comes out. By trying to prevent a Commission that was set up to see if she has something to hide she is trying to stop the free flow of information and is saying that some speech is potentially so damaging and so difficult to rebut that it must be censored. I would argue that if shysters make false claims about the DA and Zille they will have ample time to rebut such charges and to expose the shysters and that this is how politics in a democracy works. We therefore have a fundamentally different view on freedom of expression and it is obvious that Zille’s view is more illiberal than my own.
Pierre I think you put forth a quite well reasoned argument as to when
we can criticise judges. Well done.
I’m am starting to think that you have a fundamental problem in understanding or using logic.
Time and again you do not answer arguments directly but instead resort to all kinds of logic fallacies:
Point 1:
Sentence 1: “Until exonerated by the Erasmus Commission it is not clear whether Ms Zille’s own commission was set up with such a mandate that it would clear her or not.”
There are two aspects to this sentence. One is that it is not clear whether it was set up to clear herself, which is the real answer to the question. But then you imply it will only be clear after the Erasmus commission releases its verdict. On what basis does the Erasmus commission have the final say? If you can imagine that she can setup a commission to exonerate herself then surely another one could be setup to do the opposite, to find her guilty? I would hope that if she was found guilty of criminal activity that the courts would have the final say.
Sentence 2: “Either you say that she is beyond reproach and we have to believe her because she says so, or (like me) you ask what is the harm to have another investigation if she has nothing to hide.”
see http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=88852&sn=Detail
Example 4: A false choice
Unfortunately there aren’t merely two choices here. Your use of this tactic is to make your opponent look bad, because he has supposedly made the wrong choice, when in fact the whole argument is a sham. I recommend you do some research on marketing and the media. You will find that her argument of not wanting media slander is a valid one. More on this later.
Sentence 3: “You obviously believe her implicitly and blindly.”
Nope. On pure logic she wins so far. With you having a slight point on but one thing, the way she criticised the judge, which I believe she could have done in a better way.
Sentence 4: “I do not.”
Clearly.
Sentence 5: “She might be cleared but like Saddam Hussein who resisted weapons inspectors (despite having no weapons of mass destruction) her actions unfortunately suggests that there is something to hide.”
She released her phone records and diaries to the media, fully cooperated with the police on all necessary information (this has not been disproven so far). Does that suggest hiding?
Point 2:
Your conclusion does not follow logically from your arguments. In contrast one could argue you to be less liberal, since you place restrictions on expressions concerning the judiciary.
On all accounts it has been clear that she has cooperated with all relevant authorities in the matter even placing key information in the hands of the media, such as phone records. She has only fought against a commission, set up by a man she has a history of rivalry with, one who has been found guilty of public deception, a commission being chaired by a judge she does not trust because of his affiliation with the party, who has had some controversy surround him in the past (although no wrongdoing having been proven).
Even more, she has consistently affirmed that they will completely cooperate with the authorities. Rasool claims phone record evidence, yet she even gives it to the media. He claims he has evidence already!!! But why is it not yet in police hands, with a court case pending?
I can honestly say that weighing this, I would not want to be subjected to such a commission, set up under such circumstances by controversial figures. I can see an innocent person reacting this way under these circumstances, and find it hard that others cannot even entertain the possibility! You can say that you would have reacted differently, but you cannot assert that she has to be guilty on that basis.
Pierre, it’s a shame you’re coming down so hard on Helen; harder than anybody else I can remember. It almost seems as though it’s a personal issue for you. To me, she’s the one politician with integrity, and she’s approachable, which is more than can be said for others.
I agree Clara
I also agree Clara.
Z
Your arguments are starting to sound more like those of the ANC government on why there should not be a Judicial Enquiry into the arms deal.
If Zille must be brought to the Erasmus Commission kicking and screaming, where she is going to get the moral high ground to continue calling for Judicial Enquiry into the arms deal.
What do Zille and Zuma have in common? Fear of appearing before Judges. They rather have their lawyers do their dirty work for them. Just like Zuma, Zille must surely have something to hide.
I think the reason Pierre comes down hard on Zille is that he feels that this inoculates him from the almost inevitable race criticism when he comes down on black leaders, judges etc. It allows him to say, but hey I did it to Ms. Zille.
Wessel, or maybe I feel disappointed because I expected more of her… Like Kader Asmal’s only slightly tongue in cheek grudging admiration for the strong woman Margareth Thatcher, I might have developed a bit of a crush on Helen only to be disappointed. Hell hath no fury like a homosexual scorned!??
TebzaTheMan
“Your arguments are starting to sound more like those of the ANC government on why there should not be a Judicial Enquiry into the arms deal.”
Note: “Judicial Enquiry”, which the Erasmus commission is not.
It is not helpful in a debate to counter arguments on the basis of what they “sound” like. It is like scanning through a passage and coming to a conclusion, only to have missed important details.
All commissions are not somehow equal. Whether they are judicial or not, the merits of their establishment, the terms of reference, who is involved and for what purpose are all relevant distinctions. So much so that commissions have been declared invalid before.
Personally I would much rather see a criminal investigation into the arms deal, and the same with Zille.
“What do Zille and Zuma have in common? Fear of appearing before Judges. They rather have their lawyers do their dirty work for them. Just like Zuma, Zille must surely have something to hide.”
She will not be appearing before a “judge”. Not in his judicial capacity, there is no verdict and sentencing at the end.
Once again you are equating things which are very different. Appearing before a judge matters in what capacity he is acting. She would not be appearing before him as a judge but as chair of the commission, and the distinction is clearly relevant. If I was a criminal I would be much more afraid of a court than a non-judicial commission, and Zille has repeatedly expressed no problems with appearing in court regarding the matter. So if she is not afraid of going to court, why don’t they take her to court with Rasool’s alleged evidence he already claims to have?
That is what I want them to do. Not a commission which has the opportunity to create nice headlines, due to not operating within the same constraints as a court.
This commission has the opportunity to parade dubious witnesses in a manner that would make for nice headlines. This could not be done as effectively in court.
“Rasool claims dubious Zille phone calls”
“Judge Erasmus investigates Zille private meetings in spy gate”
“Erasmus commission: Chabaan calls Zille liar”
None of these would be proof of anything, but let’s drag it over months and see what people on the ground start believing. So yes if she is innocent she’s damned now for resisting the commission, but she might be damned even more through months of headlines. The Erasmus commission itself would serve as the main source of outgoing information and press statements.
A number of the terms of reference of the commission relate to criminal charges. So why are those terms not part of a proper criminal investigation? No one seems to offer a reasonable explanation for this. The only one I’ve heard so far is that the police bungle investigations, which is a bad one, since we can’t replace the police with commissions.
Pierre, you still don’t get it. Nathan Erasmus is the chairperson of the commission in his personal capacity, not in his judicial capacity. Judges who take on non-judicial tasks for the executive cannot expect to be treated in those roles as if they were sitting on the Bench. They’re actually taking time out from the Bench. You cannot validly compare your swipes at Hlophe with Zille’s at Erasmus. In your case you having a go at a judge president. In Zille’s case she’s tackling someone who has strayed outside judging into politically fraught territory. Erasmus is fair game.
Of course Erasmus is fair game, and so too is his quasi-judicial (aka “kangaroo court”) commission. Pierre must have another agenda here.
And having the occasional go at dodgy judges like Hlophe et al doesn’t buy you any frequent-flyer miles on Credibility Airlines either.
Why on earth is it that Pierre expects everyone to walk backwards, tugging forelocks in tame suppliance, whenever a commission happens to be chaired by a Judge? He wouldn’t kick up half as much indignation had the chairman of Rasool’s kangaroo court been a fisherman or a gasket salesman. Any old Tom, Dick and Harry be hired to chair a commission. Even a judge.