I have, at times, been rather scathing of some judges on our High Courts — including 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 her. 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. It’s 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 contest 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.
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 its independence.
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 that the complaint should be taken e 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 route 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.
If a judge, or any person for that matter, has shown a pattern of behaviour and allegiance repeatedly in the past, is it not fair to assume that they will continue in this manner? Why should they suddenly make an about turn? Its called a reputation, good or bad, and it is not important for nothing. Nathan Erasmus has stepped outside of his role as a judge and is chairing a commission for the ANC, not for the judiciary, for the ANC. His reputation for ANC bias has been exposed by his own actions.
And why a commission? If there is evidence of wrong, why not a trial? If there is no evidence, surely you let it go? What is the true function of this commission? What will be done with the report? Since there is no evidence and this is not a trial, the report has no basis or authenticity and can only therefore be a vehicle for propaganda.
In waiting meekly for the outcome of this commission before claiming bias would Helen Zille not be on the political back foot with some odd form of judgement or finding against her party? Horrible place to start a public defence I should think and a poor political move as well. Surely it is prudent see these things coming in the street fight that is SA politics and manoeuvre against them? The ANC pulls this stuff all the time. You have mentioned a few counter examples but there are many more.
I also find it strange that you have chosen to attack the DA response to what is pretty obviously an ongoing ANC smear campaign in the Western Cape. Why not look at the entire issue and see if there is any merit in this commission at all, especially since I understand this whole issue has already been investigated both by the police and internally by the DA. Like the disbanding of the Scorpions, everyone can see there are hidden agendas here, but we must simply submit to the will of the ruling party regardless of the impurity of their intentions in this matter.
So I ask again, since this has been investigated and the DA has been cleared, what is the possible purpose of this investigation? I also ask why the ANC are so efficient at investigating the tiniest sniff of corruption in the DA but need bombs put under their chairs to do likewise in their own party littered with officials that are presently stealing us all blind. Why not have a general commission to investigate corruption at local government level and you can lump this little DA issue in with the multitude of ANC irregularities that cluster together in the press daily. The smell of rat is overpowering.
I am not a biblical guy but the quote about the log and splinter in respective eyes glaringly comes to mind here. Remove your nose from the technicalities and see this circus for what it is.
In the Star today a Vereeniging magistrate gave a guy a suspended sentence for a random stabbing murder. The magistrate said that as the guy had shown remorse he did not deserve the minimum sentence! White killer black victim – i wonder what race the magistrate was – no i kinda geuss they were also white
Pierre
Was she trying to achieve a short term political gain or just trying to level the playing field? Given the obvious, ongoing, malicious,self serving nature of the ANC instituted commission, she would have to be a saint not to relieve some of her frustration.
Also, you make no comment about Zille’s claim that the inquiry has no legal standing and thus normal rules do not apply, what do you say about that?
@ Pierre
This Zille thing is getting so tiring. She got you all rattled when she called your bluff on your first blog, and now this is your third pathetic attempt to save some pride. All this self analysis, I may this, perhaps that, was just leading up the the inevitable ‘but Helen Zille’. Grow up.
@ Grant
Great response, absolutely right. Am tempted just to post it all again, but i have settled for my personal highlight…
“I also ask why the ANC are so efficient at investigating the tiniest sniff of corruption in the DA but need bombs put under their chairs to do likewise in their own party littered with officials that are presently stealing us all blind.”
@ Andrew
Can you give more details? On the face of it that seems absolutely disgraceful.
This is Pierre’s third blog on Helen ‘attacking’ Nathan Erasmus.
If I klap you, then I am attacking your person. If I call you names Im attacking your character.
If I tell you that, in my opinion you are allowing other people to use you, then Im voicing my opinion.
I, for one, fail to see how anyone can accuse Helen of ‘attacking’ Judge Erasmus.
I challenge Pierre to stop spinning the word ‘attack’ and see if his anti-Helen opinions still stand.
I don’t bloody know what the DA or Godzille are up to sometimes, they are quick to put pressure in parliament or to the President to establish a commission in aspects of their disparity. But they are the first to discredit the same commission set on their request, not only criticising the commission but the Judge chairing the said. That’s why they’ll remain the opposition for life or until…..comes back. They’ll continue to lack confidence from majority; because of their stances especially “personal attacks”…They tend to tackle the player than the ball.
If a judge has publicly nailed his/her political colours to the mast, then that judge simply IS tainted. There is no point in pretending that, maybe THIS one time, our judge can be suddenly trusted with a truly unbiased verdict.
Judge Erasmus IS tainted by his own words and actions in overt support of the ANC. He tainted himself; and others who say so aren’t doing the tainting. They’re merely pointing out the bleeding obvious.
He cannot be allowed to suddenly pretend impartiality, just because it says “judge” in the “Occupation” box of his passport application.
Especially when the prosecution in his quasi-legal commission are his political party comrades.
Andrew’s comment may be the type that you are objecting to. The facts of the decision deserve derision for being so grossly unjust, that it boggles the mind that this magistrate could even make it out of primary school for his completely absent sense of justice. And then Andrew goes off at a tangent, cynically insinuating that the motive was clearly racism ! NNevertheless, this a judgment so ludicrously unjust on the part of the magistrate, that one has to judge him incompetent to ever judge, in any decision, that may affect another humans life so long as he walks on the planet.
Everyone
Pierre has written 3 articles – all essentially the same. On blog 2 Anton Kleinschmidt correctly pointed out that he was not following “standard blogging etiquette”. When the water hots up – he jumps out of the pot and writes a new article!
Please read his previous two articles AND the comments.
Z
Could you please post those links again. I am not very competant on the technical side.
My personal experiene wih judges is that they will commit criminal offences in order to cover up maladministration in their own courts, and also offences by those who appear before them.
But a lot of this is the Court’s Clerks withholding information ohe extent of no telling a Judge in the British high Court tha an “Expert Witness” wasn’t actually qualified as a doctor and had been forging medical diagnosis under oath in the court.
But back to the original plot, stop slagging off Zille and claiming she’s undermining the entire SA Justice system and start asking about the extraordinary nature of the Erasmus’ Committee’s formation.
And if the judge objets to Zille’s Attacks then he can hold her in contempt. Or doesn’t the Professor know how courts operate?
But then, if he did, she could appeal to a superior court and then the Erasmus Committee would have to start legitimating itself in open court, with right of reply and under the rules of evidene of a court, including no allowing hearsay.
Which is probably why they dont want to do it.
In South Africa, possibly because we are a country short on education, we tend to show too much respect for academics and their tortuous thinking. I am fortunate because I never completed my schooling, I have scant respect for those, unable to compete in the real world and who then choose teaching.
The indisputable counter argument has been made for both of Pierre’s previous (almost identical) political posts. This is getting boring. If he has nothing new to add, just let his previous posts stand. It is time to choose a new topic.
Its time to tell the honourable professor “Hey guy, that’s a damn fool assumption. Go and do your homework again! And write a hundred lines – I am not qualified in politics – while you’re at it.”
For this reply, I sign myself
John Bond
Master’s of Business Administration – Natal University
I included this legitimate qualification just to impress those who only listen to people holding pieces of stupid paper (Doctorates etc). Is my political (not business) opinion more valuable because I don’t have a Matric or because I do have an MBA, A Doctorate in Law is absolutely irrelevant in what is so obviously an ANC biased political blog?
@ Pierre
I am happy to concede that a judge should be treated with respect provided that he discharges his JUDICIAL duties in a dignified and professional fashion. It is also important that all existing constitional and legal guidelines are observed to ensure that judiciary is never used as blunt weapon for political purposes.
What I would like to develop is the question of the actual commission regardless of who sits in the chair. Given your position as a Professor teaching constititional law to young South Africans do you think that the commssion is an appropriate mechanism. Please consider the following issues when dealing with my question:
1/ Zille and the DA have provided the police with all necessary documentation to enable them to investigate the underlying allegations.
2/ Zille and the DA have repeatedly stated that they are prepared to submit to the COURTS
3/ The police have stated that there are no charges to answer despite a rigorous investigation
4/ The interim report of the Erasmus Commssion evidence leader has conceded that there is no evidence of spying
5/ Do you think that the commission will do a better job than the police
6/ There have been allegations that the commission is nothing more than a political hatchet job. If you do not agree with these accusations please tell us why
7/ It has been said that the appointment of the chair ignores constitutional guidelines. Does this undermine the dignity and standing of the relevant Constitional Court Judges
8/ The argument has been made that this commission as not been instigated by the ANC. Given that the Premier is 110% ANC how can this be treated with any credibilty.
9/ Some of the people at the centre of underlying investigation by the DA are of questionable standing. Does this have a bearing on the situation.
I have deliberately excluded the issue of the DAs own enquiry. This merely provides Zille’s detractors with their only argument that makes any sense. However, I happen to think that the enquiry demonstrates good corporate governance
As a voter my sense of fair play is seriously offended by what I am seeing and that is why I persist with my arguments
@ Lyndall
The previous blogs
http://www.thoughtleader.co.za/pierredevos/2008/04/16/zille-zillier-zilliest/
http://www.thoughtleader.co.za/pierredevos/2008/04/23/hypocrisy-rules-again/#comment-28441
Pierre
I heard you on SAFM this morning as one of their “experts”. It is obvious where your bread is buttered. They won’t even allow Moletsi Mbeki to speak.
Anton Kleinschmidt
Thanks
Submitting to the REAL courts isn’t good enough.
To keep Pierre and his mates in the ANC happy, Zille must submit to their quasi-legal kangaroo court. And when she refuses, and spells out exactly why she has zero faith in the presiding officer of this ANC-led judicial charade, they throw a hissy fit and attack Zille!
If there isn’t a clause somewhere in the constitution making bare-faced impertinence a crime, there really ought to be one.
Pierre
Saw you on SABC3 news tonight as the “expert”. Twice in one day! You really are in with the “main manne” aren’t you?
@Grant
For a change I find myself fully agreeing with you. well, maybe not the atheist part. Well said.
@John Bond
Hey we haved more in common. I never finished matric; went to the army rather. You didnt did do artillery support at eenhana or elundu in the very early 80s did you? Not when the 81s were befok?
I subsequently did my degree and my M, lectured at universities, continued to do so as a guest lecturer until a few years ago when I saw it as futile given the ANC ‘pass all’ agenda.
I have little time for white ANC boot licks, or leftie liberal academics.
@anton
If your sense of fair play is offended, the past 10 years must have found you permanently offended. I sympathise.
@John Bond
It would have been on Oom Willie se Pad. Cant put a month or even year on it. I was on the RF if you are the artillery oke I’m thinking of.
@Consulting Engineer
Ya ou broer, met ou Majoor Hopeful. Ek was die AJ se dryver, radio op. Dis snaaks hoe dinge uitwerk
And excuse my very poor Afrikaans.
I just don’t like any stupid lakkies. South Africans need to think for themselves, particularly those who teach our youngsters and profess to be intellectuals.
@ Everyone else
Consulting Engineer is far right and I am a leftie. You would hardly think of us having common ground but we keep finding that we are arguing with a common foe. We as a country need to learn to reason and to come up with ethical answers, not those that will ensure our personal future promotion in a crumbling state. We need answers that will lead to a better, more honourable South Africa.
That’s why I am amused that the “honourable” professor isn’t willing to put his job on the line for what he says is right. Me thinks someone is hoping to gain some political mileage from publishing the ANC party line…
Pierre,
Your credibility is shot. Please answer the questions raised rather than wandering off on some quasi-intellectual politicised clap trap path. You are typical of the “intellectuals” that have been rammed into universities by the ANC. Political apparatchiks of limited intellectual ability and who blindly bleat the party line. Your appearance on SABC3 as a nonsense talking head just confirms your party connections.
How TL can accept 3 posts on the same subject from the same biased person I do not know. Connections?
Be off with you.
@Siphiwo Qangani
“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.”
My comment for a similar argument on: http://constitutionallyspeaking.co.za/?p=535
@Lyndall
Sorry Lyndall, got your request too late (thanks Anton). If you still need more than Anton provided, give a shout.
I must say I doubt that Pierre’s intentions were to win favour with the ANC, though it might have resulted in that happening. It looks to me like he might be “disappointed” with Zille.
I posted comments on this article on his own blog where it was originally posted.
Check out some of the comments here:
http://constitutionallyspeaking.co.za/?p=535
z
Thanks – Anton has put it all on.
I took a glance at Pierre’s blogg – just more of the same. The real point is he is supposed to be a lecturer in constitutional law – and that is what he has NOT covered! Is Rasool acting constitutionally? I doubt it.
@ Pierre
Hope you are listening. Maybe a little more introspection is still required.
In my previous post on 9 May I enquired of Pierre……
“What I would like to develop is the question of the actual commission regardless of who sits in the chair. Given your position as a Professor teaching constititional law to young South Africans do you think that the commssion is an appropriate mechanism.”
In the absence of a reply I believe that we can all proceed on the basis that the commission is NOT an appropriate mechanism regardless of who sits in the chair.
Not a peep about the latest scandal involving Hlophe? Any more evidence needed why judges really ought to regarded as every bit as flawed and dodgy as what used-car salesmen or herbalists are and not as grand upholders of grand traditions who operate on an exalted plane? They don’t have that ooh-aah factor as long as people as morally purblind as Hlophe are allowed access to sit in the highest legal offices of the country.
Hlophe is a disgrace to the Cape Bench, which even in the worst days of apartheid “fought back”. None of the Cape Judges were ever members of the Broederbond or of ANY political party!
Andrews Beyers, Judge President of the Cape Bench in the worst years from 1956 ( and stepping DOWN from the Appeal Court to do so):
Told Dr Vervoerd that he could appoint a right wing junior judge, Conradie, on to the bench, but as Cape Judge President he would allocate him no work. Vervoerd backed down and appointed Conradie to the bench in SWA.
Seated next to a lady at a dinner party who said “Judge Beyers, yours must be one of the oldest Cape families” replied
“Yes, indeed, Madam, we were sitting on the beach when Van Riebeeck arrived here” (GET the point?)
When remonstrated at by a conductor of a double decker bus for sitting on the top story (the coloured area) said “ek bly hier sit. Waar het jy ooit ‘n Beyers gesien wat nie kleurling bloed het nie?”
On circuit he threatened to hold court under a tree unless the division of the court into white and non white areas was dismantled.
There are many such stories of the Cape Judges.
Hlope is a disgrace to such a tradition!
And by the way I knew Dullah Omar, though only very slightly. His wife bought a house from one of my joint estates, and we had a mutual friend.
The very idea that Dullah Omar would give Hlope permission for extra curriculum income makes me laugh.
http://www.capeargus.co.za/?fSectionId=3571&fArticleId=4588498&ap=1
I simply cannot resist the temptation to say ….I told you so so.
The Court decision is a double whammy in that:
1/ Rasool had no right to appoint the Commission
2/ Erasmus should not have accepted to Chair.
You really got this wrong
Oops! Crashed AND burned! That’s gotta hurt!
I must say that I admire Pierre as an inspiration, you can say, to my writing or having a blog.
I think He really got you guyz talking.