An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Chief Justice Pius Langa yesterday told a Commonwealth conference for magistrates and judges that a subservient and intimidated judiciary, forced to do the bidding of those who wielded executive or political power, simply became an extension of the executive “and cannot be trusted to deliver justice”. “
Anything that a judge or magistrate says or does that throws doubts on either his or her independence or impartiality, or whether the institution as a whole is independent, does not do democracy any favours. This can do damage not just to the judiciary as an institution but to the state itself,” said Langa. Judicial officers had to remain vigilant that there were no external influences in their judicial affairs. This required resisting the intrusions of other branches of government “even if faced with pressure”. Judicial officers were not appointed to give effect to the wishes of government, nor to pander to public opinion. “Our role is to dispense justice. Occasionally a decision on the face of it does not appear to be just to members of the public for whatever reasons.” He said judicial officers, unlike the public, must always have regard to the importance of the rule of law and uphold its central tenets.
Maybe I am reading too much into the words of the Chief Justice, but they could be interpreted as a very subtle criticism of the judgment by Judge Chris Nicholson who – after serious threats by Julius Malema and his handlangers against the judiciary – delivered a stunning judgment which went much further into the political arena than was required and made findings in line with what Malema and his ilk demanded.
I am sure Nicholson was not intimidated by the likes of Malema and did not deliver his rebuke of the NPA merely because he felt threatened by a lightweight like Malema, but many ordinary people might well have gained the impression from this judgment that threats against judges do have an influence on the outcome of judgments.
This has been an unfortunate – if unintended – consequence of the Nicholson judgment: It has created fertile ground for demagogues and rogues to continue attacks on judges or the judiciary to try and influence judges to make findings not based on their interpretation of the law but on the basis of political exigency.
While there are many legal reasons for criticising the Nicholson judgment, the unintended consequences of the judgment might well be to weaken the judiciary because it might have created this perception that threat against the judiciary and judges can influence judges.
I suppose there was nothing Nicholson could do to deal with this problem. Once he decided on his interpretation of the law that Zuma had to win his case, he had to write the judgment to justify this conclusion. He could hardly have been expected to find otherwise merely because Malema and company had issued threats against the judiciary.
But perhaps he could have been a bit more aware of the politics around this case and could have sent a much stronger signal about the need for everyone in South Africa to respect the judiciary. A few words tof criticism for those who had issued threats might have gone a long way to show that he was not in any way swayed by these scurrilous threats.
In any case, we will have to wait and see what the Constitutional Court say about the Nicholson judgment once it delivers its verdict on it. Meanwhile the words of the Chief Justice do seem to suggest that judges should be very careful not to be swayed by threats but also that they have a duty to act in such a way that the perception does not take hold that they might be swayed.BACK TO TOP