STEVEN FRIEDMAN: Watch out for attacks on judges in the media

Democrats hold judges to account. They do not run smear campaigns against them or defy their rulings.

The judiciary is, for the first time because 1994, under attack in the mainstream debate. There have been signs at times that grass-roots citizens don’t trust the courts — in some cases, people angered by violent crime deride courts for not immediately punishing the accused. But in the debate among middle-class people which shapes politics, hardly anyone undermines courts and judges.

This has now changed. One sign is a smear campaign against judges. Social media and dinner tables have been regaled with stories of judges who take bribes; a Sunday newspaper gave great prominence to a lawyer no-one has ever heard of saying that judges are corrupt. Not a shred of evidence has been offered to support these claims. 

The reason for these assaults is clear. The courts repeatedly find against the public protector and members of the ANC’s Zuma faction. Because this is making life very difficult for patronage politicians, they and the media that support them react with a familiar tactic: they say those who stand in their way are pawns of “white monopoly capital”. 

Because judges stand in their way, they must be discredited by painting them as corrupt tools of the wealthy.

As if to show that the attacks don’t come from only one direction, AfriForum’s Ernst Roets decided to post a picture of the old flag after a court ruled that “gratuitous” displays of the flag were hate speech. He said he was asking an academic question — and then defended his actions in terms that signalled clearly that he was making a political statement.

In both cases, an important line has been crossed. One of democracy’s core institutions, independent courts, are under attack because they do not serve sectional interests.

The problem is not that courts are being challenged. The idea that courts and judges are beyond society and politics and so should never be criticised is antidemocratic. Judges are accountable to citizens, who are allowed to question their rulings. Judges should also be willing to defend their role to society. The reigning view that insists they should not justify what they do because that means engaging in public controversy stifles debate.

What damage would be done if judges responded to public criticism by explaining how they see their role? (While the chief justice has broken with judicial silence by taking a public view on corruption and related issues, this has not yet prompted more participation by judges in public debate).

But there is a huge difference between criticising judges and judgments, and undermining the credibility of all courts by making claims of wrongdoing that are not backed by evidence. There is also a great gulf between criticising a judgment and defying it.

There is no contradiction between criticising a judgment and recognising that the courts’ role is essential to democracy. On the contrary, criticism strengthens the courts by ensuring that judges know what people feel about their judgments.

But smear campaigns and acts of defiance undermine the courts. The claim that judges are corrupt can collapse the justice system. If the public has no confidence in it, it cannot function as it should. So, it goes without saying that no-one should make a claim that destroys judges’ credibility unless they have clear evidence. Nor can the system survive if everyone publicly defies court orders. Ironically, given the country’s population make-up, the minorities AfriForum claims to champion would then be the chief losers.

But in reality we are all losers if courts are defied or slandered. Which is why defending the courts from these attacks is essential if justice and democracy are to survive.

• Friedman is research professor with the humanities faculty of the University of Johannesburg.