Constitutional Hill

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.

  • Maggs Naidu –

    “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”.

    Our judges, especially the CC, have been doing so excellently through their judgements.

  • Chris (not the right wing guy!)

    As a matter of interest, the citition for Van Niekerk’s other case is 1972 (3) SA 711 (A).

    I was wondering, when did things begin to change? When I was a first year law student in 1981 at what was knows as a very conservative Afrikaans university, some of the law professors did not hold back when criticising the government, and particularly the security legislation. I remember a lecture that did not differ much from Prof De Vos’s comments in this post on the Terrorism Act.

    Also note the interesting comments by Chief Judge Corbett made in 1993:
    “I agree, and I firmly believe, that freedom of expression and of the press are potent and indispensable instruments for the creation and maintenance of a democratic society, but it is trite that such freedom is not, and cannot be permitted to be, totally unrestrained. The law does not allow the unjustified savaging of an individual’s reputation. The right of free expression enjoyed by all persons, including the press, must yield to the individual’s right, which is just as important, not to be unlawfully defamed. I emphasise the word ‘unlawfully’ for, in striving to achieve an equitable balance between the right to speak your mind and the right not to be harmed by what another says about you, the law has devised a number of defences, such as fair comment, justification (ie truth and public benefit) and privilege, which if successfully invoked render lawful the publication of matter which is prima facie defamatory. . . The resultant balance gives due recognition and protection, in my view, to freedom of expression.”

  • ozoneblue

    “Those dark days are long past”

    In fact they have been back for quite a while.

  • Maggs Naidu –

    Chris (the right wing guy!) – where in the public domain can I find that case and the Appeal Court one?

  • Chris (not the right wing guy!)

    Maggs, it should be on SAFLII. I think judgment was delivered on 7 December 1993. It was reported in the 1994 SALR.

  • Chris (not the right wing guy!)
  • Maggs Naidu –

    Thanks Right Wing Guy – but I’m looking for those related to the conviction of Barend van Niekerk.

    Also “The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World”.

  • Chris (not the right wing guy!)

    Hey Maggs that case was reported in 172 in the SALR, not sure if you will find it anywhere else.

  • Chris (not the right wing guy!)

    S v van Niekerk 1972 (3) SA 711 (A).

  • Chris (not the right wing guy!)

    Try this link for The Cloistered Virtue:

  • Maggs Naidu –

    The weather has just been declared a state secret under the PoIB!

    A storm is brewing over the government’s bid to severely punish those who issue severe weather warnings without official sanction.

    The proposed SA Weather Service Amendment Bill makes it illegal to issue such warnings without written permission from the weather service, and those found guilty could face fines of up to R5 million or five years’ jail.

    I guess old Shakespeare will have to rewrite

    “When shall we three meet again

    In thunder, lightning, or in rain?</strike

    In the pub, park or in the shopping mall?"

  • Maggs Naidu –

    “When shall we three meet again

    In thunder, lightning, or in rain?

    In the pub, park or in the shopping mall?”

  • magabangeljubane


    “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.”

    Isn’t this the same argument you criticised ‘viciously’ when it came from Jeremy Gauntlett? Wasn’t Barend van Niekerk even one of the examples he used to illustrate his point?

  • Gwebecimele
  • Gwebecimele
  • Maggs Naidu –

    Ok – he’s not terminally ill.


    LSWH if he is found guilty and sentenced to a long jail term.

    [Johan Kotzé] was taken to a doctor and was given a clean bill of health.

  • Gwebecimele

    At long last there is action.

  • Gwebecimele
  • ozoneblue

    Gwebecimele says:
    January 11, 2012 at 22:20 pm

    So I assume it must be Europeans who govern India and who owns and profits from the Indian tourist business too. What would our professional Black have to say?

  • Maggs Naidu –

    January 11, 2012 at 22:20 pm

    Hey Gwebs,

    ‘Dancing like a monkey’ should be confined to OB’s political boss!

    India’s government has ordered a probe into a video showing semi-naked tribal women allegedly dancing for food, news reports said Thursday. …

    Indian laws provide for the protection of ancient tribes susceptible to outside influence and disease, and ban photographing or contacting some Andaman aborigines, including the Jarawa tribe.

  • Maggs Naidu –

    And meanwhile back at the ranch …

    An Eastern Cape resort is being investigated for saying a black child was not welcome, the Eastern Cape Parks and Tourism Agency (ECPTA) said on Thursday. …

    “The mother was reportedly told that only blacks who are workers at the site were allowed entry and the black child (could) not join the family for the holiday,” she said.

  • Gwebecimele


    If this white family went ahead and visited the racist resort they also failed the young man.

    OB want us to believe that the people who pay and enjoy seeing poverty are non white. Like a typical prisoner of “whiteliness” , he would rather focuss on arresting prostitutes rather than dealing with the clients, as in this case the Indian Tourists Groups are the culprits.

  • Gwebecimele

    Yes Mr Mboweni we are still following your advise “Tighten your belts”.;_Co_to_take_20_percentage__of_Ferrox

  • Maggs Naidu –

    January 12, 2012 at 13:00 pm

    Yeah Gwebs,

    It would be interesting to see how the resort found out that the child was of ‘an unwelcome race’.

    While you and I can only to claim to speak for ourselves, OB on the other hand as a “raced person”, has the luxury for speaking for his entire race (except perhaps the few who deny him that).

  • ozoneblue

    Gwebecimele says:
    January 12, 2012 at 13:00 pm

    “OB want us to believe that the people who pay and enjoy seeing poverty are non white.”

    gweb wants us to believe as with most incidences of ignorant tourist racism there is nobody making lots of money out of it.

    “Last year, London-based Survival International said eight Indian travel companies were running “human safari tours” so tourists could see and photograph the Jarawas.”

    The simple, dumbed-down “race theory” analyses should do the diversion trick and serve its political political masters until you have to start analyzing and explaining why organ recipients don’t give a fuck on what the “race” of the donor was.,8599,1709006,00.html

    As I said this is the real face of global bourgeois fascism to the extreme.

  • Maggs Naidu –

    Putin II?????

    At the same time, attempts to lure former president Thabo Mbeki back into mainstream ANC politics are intensifying.

  • ozoneblue

    This part jump out out for me:

    “Asset Forfeiture Unit chief and former Special Investigations Unit (SIU) boss Willie Hofmeyr is seen by some in the government as the leading candidate for the job, but his opponents are keen to cite as evidence against him his reliance on the illegally obtained recordings when he dismissed his SIU deputy, Faiek Davids, early last year. Hofmeyr said the tapes showed that Davids had connived in the interference by Mbeki in the prosecution of then-deputy president Jacob Zuma. The CCMA declared the tapes illegal in September last year during a labour dispute between Hofmeyr and Davids. The SIU has since taken the case to the Labour Court for review. SIU spokesperson Marika Muller told the M&G this week that, although the SIU respected the CCMA and its commissioners, it believed the ruling was incorrect. Muller said, after listening to the tapes, Hofmeyr formed the view that Davids was not suitable to occupy the position of deputy head. “The commission’s decision does not alter that fact. Mr Hofmeyr’s evidence at the hearing was that he believed the recordings had been lawfully obtained. He stands by that,” said Muller. In a strongly worded letter to the M&G this week, Davids’s lawyer Sonia de Vries said that Hofmeyr was not fit for the NPA job and that he might have lied about the reasons to get rid of Davids as his deputy. “The ruling by the CCMA regarding Hofmeyr’s alleged listening to an illegally recorded conversation just underlines the false basis on which Hofmeyr sought to justify Mr Davids’s dismissal,” said De Vries. She asked why, if Hofmeyr believed Davids did something wrong, he did not hold a disciplinary hearing as early as 2009 when he became aware of the information he relied on for Davids’s dismissal. “If indeed former national director of public prosecutions, Bulelani Ngcuka, made improper and illegal suggestions to him [Hofmeyr] as far back as 2007 [in the East London conversation], why did he wait until 2011 to raise it for the first time. He had ample opportunity to charge Ngcuka. Not only did Ngcuka deny this but the probabilities point to Hofmeyr lying about the content of this conversation which he had with Ngcuka.” Responding, Muller said: “We would like to emphasise that Mr Davids never denied that this conversation [between him and former Scorpions boss Leonard McCarthy] took place. Given the seniority of Mr Davids’s position, it is inconceivable that he would not be confronted about what is in the tapes.” Mr Hofmeyr and Mr Davids had on many occasions discussed the need for the SIU and law enforcement institutions to remain impartial and not become involved in political disputes.”

    Soon the chattering classes new good guy will morph almost overnight into all that is evil as it transpires that the so-called “spy tapes” were legally obtained and that Hofmeyer confirms what Heath has just been fired for saying – that Thabo Mbeki and Bulelani Ngcuka abused the NPA/Scorpions over a period of seven years in a political vendetta against the “left-leaning” elements inside the ANC.

  • Alibama

    ” it is to be expected that lawyers, journalists and
    legal academics will criticise that judge harshly.”
    If science improves by having its incompetents exposed, why can’t law?
    My own contempt for SA Courts is based on experience, as already explained
    here, previously. And is confirmed by the many incompetent judgments now.
    exposed, these days, before the pending secrecy bill.

  • Maggs Naidu –


    Now we look like PIGS.

    Fitch said it downgraded the outlook because it had seen limited progress on several long-standing structural issues, such as chronic unemployment, that had caused Africa’s biggest economy to fall behind its peers.

  • Alibama

    X wrote:-” why did he wait until 2011 to raise it for the first time. He had ample opportunity to charge Ngcuka.”
    Is there a “legal” time limit allowed in waiting to raise it for the first time?

  • ozoneblue

    professional Black says:
    January 14, 2012 at 18:11 pm

    More good news for you and Juliass Malema – racist Whites savagely murdered near Ventersdorp.

  • Maggs Naidu –


    [Stop press: Soon after the publication of this article in South Africa, the author was beaten and arrested by police on trumped-up charges, see below.]

  • ozoneblue

    Good article. I noted I have taught you well. See no mention of “racist Whites”, or “bargaining Indians” or “over-concentrated Coloureds”. The struggle is not barbaric act of vengeance, it is a healing act of restitution.

    “Black Conciousness leader Steve Biko wrote that, “This is one country where it would be possible to create a capitalist black society, if whites were intelligent, if the nationalists were intelligent. And that capitalist black society, black middle class, would be very effective… South Africa could succeed in putting across to the world a pretty convincing, integrated picture, with still 70 per cent of the population being underdogs.””

  • Donovan

    Prof, I agree with everything you wrote in this article, being vigilant in a democratic society, esepcially an unequal one like our’s is a duty of every revolutionary or progressive person. Just one matter though, you write, and I quote: “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”. Which I interpret as you agreeing that the vast majority of lawyers were silent in the face of atrocities by apartheid regime. So maybe, just maybe, the irritation is not because of what is being raised, but maybe it is being raised mainly by those who chose to be silent during the time of apartheid, and today, act like the custodian of democracy. Just a thought.

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