Criticism of the judiciary (cont.)
But this does not mean that when there are grounds for challenging the probity and integrity of a member of the judiciary who has strayed from the paths of righteousness, a timid and respectful public and legal profession should be struck dumb. The mock cross examination published in the same edition is an example of the perfectly permissible criticism of the integrity, dignity and bona fides of a sitting judge which is allowed in law.(Cross examination pg 4). This is no doubt why the Editors and Sponsors of "Without Prejudice" placed the piece, despite the possibly controversial nature of its contents.
A good starting point for discussing why candid and honest criticism is allowed is to be found in the Bar Rules which lay down that:
"an advocate should, while acting with all due courtesy to the tribunal before which he is appearing, fearlessly uphold the interests of his client without regard to any unpleasant consequences either to himself or to any other person".
Counsel’s "privilege" in defending his client’s rights entitles him to do so "by the free and unfettered statement of every fact, and the use of every argument and observation, that can legitimately, according to the principles and practice of law, conduce to this end; and any attempt to restrict this privilege should be jealously watched."
The code of conduct for barristers in England is to similar effect and goes further by providing that:
"A barrister must not compromise his professional standards in order to please his client, the Court or a third party."
There is ample local authority for the proposition. A few examples are instructive. In
R v TORCH PRINTING & PUBLISHING CO (PTY) LTD AND OTHERS 1956 (1) SA 815 (C) at 820 Ogilvie-Thompson J held:
...it is essential to distinguish between legitimate criticism and contempt of court. The right of the individual to the former is both important and unquestioned (see Re Neethling, supra and R v Metcalf, 1944 CPD 266). As Lord Atkin observed in Ambard v Attorney-General of Trinidad, 1936 (1) A.E.R. (P.C.) 704 at p. 709:
'The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.'
It is however equally important and unquestioned that freedom to criticize cannot be permitted to degenerate into licence. As LORD ATKIN went on to observe in Ambard's case, supra, the right is 'to criticize temperately and fairly but freely any episode in the administration of justice'; and as stated by KOTZE, J., in In re Phelan, supra at p. 9, criticism must be advanced in a 'fair and legitimate manner', scandalous and improper reflections upon the administration of justice not being permitted. Permissible criticism and comment is that which 'remains within the limits of candid and honest criticism'.
The position of the Constitutional Court has been expressed by Kriegler J as follows in: S v MAMABOLO (E TV AND OTHERS INTERVENING) 2001 (3) SA 409 (CC):
"[27] That does not mean that the test is wholly intuitive or subjective. There are certain general guidelines, the first and most important of which is that which evoked the participation of the amici. I speak, of course, of freedom of expression. Before World War II, in an era when deference for those in public office was much greater than now, and when freedom of expression was a remote dream in much of the world, Lord Atkin, in language that may sound quaint to modern ears, nevertheless expressed the basic relationship between the two values in terms that remain wholly valid:
'But whether the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way. . . . Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.'
More recently Corbett CJ, as he then was, quoting these famous remarks of Lord Atkin, expressed the modern balance as follows:
'Judges, because of their position in society and because of the work which they do, inevitably on occasion attract public criticism and that it is right and proper that they should be publicly accountable...
There seems little doubt that in the nearly 60 years which have passed since Lord Atkin made these remarks, attitudes towards the Judiciary and towards the legitimate bounds of criticism of the Judiciary have changed somewhat. Comment in this sphere is today far less inhibited. Criticism of judgments, particularly by academic commentators, is at times acerbic, personally oriented and hurtful. I doubt whether some of this criticism would have been regarded as falling within the limits of what was regarded as "respectful even though outspoken" in Lord Atkin's day.... To some extent what in former times may have been regarded as intolerable must today be tolerated.... This, too, will help to maintain a balance between the need for public accountability and the need to protect the Judiciary and to shield it from wanton attack.'
[28] The measured observations of Corbett CJ make plain that, even before the adoption of constitutional democracy with its set of fundamental norms and the Bill of Rights, it was accepted that there was a tension between preserving the reputation of the judicial process on the one hand and on the other hand acknowledging the right of each and every one of us to form our own opinions about matters and to propound them. That freedom to speak one's mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by ss 15 - 19 of the Bill of Rights. It is the right - idealists would say the duty - of every member of civil society to be interested in and concerned about public affairs. Clearly this includes the courts."
In the same case Sachs J added:
"[77] The primary function of the Judiciary today is happily to protect a just rather than an unjust legal order. Yet criticism, however robust and painful, is as necessary as ever. It is not just the public that has the right to scrutinise the Judiciary, but the Judiciary that has the right to have its activities subjected to the most rigorous critique. The health and strength of the Judiciary, and its capacity to fulfil time-honoured functions in new and rapidly changing circumstances, demand no less. There are no intrinsically closed areas in an open and democratic society.
[78] It is particularly important that, as the ultimate guardian of free speech, the Judiciary show the greatest tolerance to criticism of its own functioning. Its standing in the community can be undermined only if the public are led to draw the inference that, in pursuance of the principle that an injury to one is an injury to all, the judicial establishment is closing ranks. In this respect I can do no better than quote and adopt the observations of Chief Justice Gajendragadkar of the Indian Supreme Court:
'We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.'
If respect for the Judiciary is to be regarded as integral to the maintenance of the rule of law, as I believe it should be, such respect will be spontaneous, enduring and real to the degree that it is earned, rather than to the extent that it is commanded."
It would be remiss to omit the reference to s 165(4) of the Constitution from this note as it places a burden upon the state which has unfortunately not been discharged in relation to errant judges. It reads:
"Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."
It is fervently to be hoped that in future there will be more in the line of assistance and protection for courts and less in the line of threats of "blood on the floor of the courts", singing ( especially that machine gun song) and war dancing outside their doors, peppered with ill-considered "counter-revolutionary" and "shoot to kill" remarks about judges who in fact remain true to their oath of office and their duty to be "subject only to the Constitution and the law, which they must apply impartially, without fear, favour or prejudice" in terms of s165(2) of the Constitution. If the "revolution" is aimed at upsetting the existing constitutional order then all judges, without exception, are in honour bound to be counter-revolutionaries in terms of their oath of office.
Paul Hoffman SC.
26 January 2009.