As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Journalist Stephen Groottes has taken exception to my post in which I lamented the generally low quality of reporting about legal matters and about our judiciary, and in which I compared it unfavourably with the reporting of such matters in the USA. This seems like an important issue for the health of our democracy and for the general well-being of South African citizens, so I thought I’d take a stab at answering his objections.
Writing on the Daily Maverick website, Groottes argues, first, that – unlike in South Africa – the appointment of judges in the USA is a highly politised process. This seems to me, to put it mildly, rather naive. A majority of members on the Judicial Services Commission (JSC) are political appointees and while judges and lawyers play a more influential role in the the appointment of judges in South Africa, few observers of the JSC process would argue that politics play no role in the appointment of judges in South Africa.
The political issues might differ from the hot-button political issues in the USA, but surely they are just as important for those who make decisions about who to nominate to the High Courts or the Constitutional Court than for the members of the Senate who has to confirm the President’s nominees in the USA. Of course, in South Africa the politics behind the process is often obscured to some degree – unlike in the USA – but this is partly because of the difference in reporting on judicial nominations itself.
If our journalists explained the legal and political stakes of a judicial appointment and analysed the judicial philosophies of judges like they did in the USA, we would all be far better informed about the politics (with a small “p”) of the members of one of the three branches of government. Without this information ordinary citizens do not have the information necessary to play their proper role as active citizens in our democracy.
JSC members grill prospective candidates on their membership of secret organisations, on what they have done for transformation, on their views on social and economic rights, and on their relationship with colleagues. Once or twice JSC members have even grilled candidates about their sexual orientation or their religious views – which was rather scandalous and wrong, but which does show that JSC members are very much aware of the politics involved in the appointment of judges. In January 2005 the ANC in its annual statement made the following assertion which puts the point beyond doubt:
We are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination. The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious negative consequences for our democratic system as a whole.
We might not like it, but politics do play a role in the appointment (or non-appointment) of judges (as it should). Decisions about whether to appoint Jeremy Gauntlett to the High Court or John Hlophe to the Constitutional Court are made at least partly on the basis of the perceived politics of the candidates. We might couch this in broad phrases about “pro-transformation” or “anti-transformation” candidates, but we all know that we really are talking about the judicial politics of the candidates. The fact that the media does not report on it like that, does not make it less true.
Second, Groottes complains that our legal system is far more closed and that lawyers and most legal academics refuse to speak to the press. This, he says, make it difficult to report on legal and judicial matters in the same way as in the US. It is of course true that the US legal system is more open than our own, but this does not stop the media from doing its own research and analysis.
Adam Liptak of the New York Times provides brilliant coverage of the work of the US Supreme Court and explains to its readers what the trends on the Court are and what certain judgment might mean for the political orientation of that court. He does so by reading all the briefs submitted to the court, then listening to the oral arguments and lastly by studying the judgments and academic law review articles on such judgments – not by phoning one or two academics for a dial-a-quote.
It is therefore far too easy to blame the legal profession for the lack of intelligent and nuanced reporting on the judiciary in South Africa. An intelligent journalist who has the support of his or her editor, is dilligent and hard working and has the ability to packgage complex ideas and issues in an easy to understand way for ordinary consumers of the media will be able to do a far better job than is presently the case with most legal reporting in this country.
Lastly, Groottes argues that a lack of resources hamper reporting on the judiciary. Why would an editor send a journalist to sit in court for a whole day (as the Mail & Guardian did to its credit for the Selebi trial), when that journalist could cover three Julius Malema press conferences in the same period? This, it seems to me, is a valid point. Why would you make a careful study of the work of the judges of the Constitutional Court if you know your editor will give you 300 words to report on a particular case or the appointment of a judge?
Media bosses are often holier than thou about the important role the media play in our democracy, arguing that they fulfil a vital function to keep the public informed and to help create active citizens that are empowered to make proper decisions on who to vote for and what to think and believe. Sadly they often do not do their job properly because they want to make fat profits in the short term. Who cares about educating readers to become more intelligent and informed consumers of news and opinion in the long run if one can make a quick buck?.
Why invest in journalists and more space for editorial content in a newspaper when one can make more money in the short term by allocating ever larger proportions of one’s newspaper to advertising? Why have 10 minute discussions about the judicial philosophies of Constitutional Court judges when one can have half an hour of Solly Philander talking to the “garden boy” about pruning one’s roses, interspersed with many well-placed and lucrative adds for Stodels?
There is one thing that bothers me though. Could the print and electronic media – even with limited resources – not do a better job at informing the public about the work of one of the three branches of government? Surely, despite limited resources, the media is quite good at telling us about the internal workings of the ANC, about whether Julius Malema is stealing our money and about corruption in government. This is because they focus on such stories and thus have made choices about where to focus attention. If they CHOSE to, they could do the same kind of reporting on the judiciary.
I suspect the media do not focus attention on the judiciary at least partly because they think (without ever having asked anyone) that their readers, listeners and viewers are not interested in this. They often assume that we are all stupid, lazy and ignorant and that we really want to listen to Solly every day, that we are only interested in the breast size of Advocate Barbie and, at a push, the sex life of our President.
I wonder whether such assumptions are not based on a kind of pre-democracy mind-set which sees politics (which they report on whether consumers of news are thought to be interested in it or not – perhaps because politics is seen as anti-intellectual and macho) as completely divorced from the law. Perhaps media people – especially editors – fail to understand that the judiciary now make decisions that may have far-reaching political ramifications for all of us. And because the media do not report on the work of the judiciary in this way, ordinary people may not understand how important it is and how it may affect their lives.
But perhaps there is another reason for this sad state of affairs. Maybe it reflects the deeply anti-intellectual strain in our society, a strain pampered and supported by the media. Most South Africans – including most editors and journalists – seem uneasy with nuance and complexity. Most see the world in black and white and reject anything that reeks of intellectualism.
Many years ago on a visit to Calcutta in India I was amazed to spot a long article in The Telegraph about the work of French philosopher Jacques Derrida. The Telegraph, a far superior paper to anything produced in South Africa, is printed every day in a city that probably has far more problems with poverty than anything we are used to and has a middle class of comparable size to Johannesburg. Yet, it produces a newspaper containing superbly written articles on many topics – including some that would never see the light of day in South Africa because they would be viewed as too intellectual or “girly” (thought being seen as not macho enough) by most of the editors of our local rags.
I suppose most South Africans are more interested in blaming apartheid or the ANC government for everything while trying to make obscene amounts of money – preferably without working or by getting others to do the work for them – than actually reading stimulating and complex stories that might challenge their prejudices and hatreds. And editors do not seem to be any different, perhaps because they believe – without evidence – that readers really will not tolerate intelligence and complexity.
Even if the money was coming out of our ears we would probably not produce a newspaper of the quality of The New York Times or the Guardian in London. Goodness, who on earth would actually READ all that stuff, I hear all the media people ask? Who would want to re-think what they already think they know? Nah, let’s just have another beer and see how we can fleece a few more suckers before we emmigrate to Porpoise Spit.
PS: I do not mean to pick on Stephen, who does a better job than most under trying circumstances. My point is a general one which touches more broadly on the state of the media and discourse in South AfricaBACK TO TOP