Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
10 January 2012

When silence should not be an option

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister – all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about  his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy  and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

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