Those of us who value and support our Constitution must surely be increasingly concerned at the level of attacks on the judiciary from factions within the ANC, from disgruntled, losing litigants and from populist politicians like Julius Malema.
The Public Protector keeps on losing cases before the courts, as does the EFF and of course it is not the poor legal advice, the often mediocre legal representation they use or the ineptitude of themselves that caused the adverse findings, it is a biased, corrupt judiciary that is to blame.
The judiciary is not, and should not be beyond criticism. Indeed, our courts function transparently and every decision is liable to be scrutinised, criticised and often subject to appeal to a higher court. Judges and all lawyers are only human beings, fallible and liable to make errors from time to time.
Every now and then the personal conduct of a judge is clearly unacceptable but these instances are few and far between. Most law-abiding people have, as they should have, a healthy respect for the judiciary (and in this I include the overwhelming majority of our magistrates). But gratuitous smearing of our judges is not legitimate and ought to be resisted by everyone who cares about the Constitution.
Professor Hugh Corder recently wrote pertinently, “In any constitutional democracy worth the name the judiciary will be the ultimate guarantor of the rule of law and the supremacy of the Constitution.” He went on to say, “…critics should ask themselves to which Constitutional institution will they turn for protection in the future.”
There are many examples of intemperate attacks on the judiciary, led by Julius Malema and his people. But one, from a surprising quarter, a Johannesburg attorney, Raymond Chalom, seemed to me to be beyond the pale. He is disgruntled because on two occasions after applying, he was not appointed as a judge. Without adducing any convincing evidence, he proceeded to smear all the judges, stating that the judiciary is corrupt.
As someone who practised as an Attorney in Johannesburg for many years, and as a former Justice spokesperson in Parliament and a member of the Judicial Service Commission (JSC) that appoints judges, I know many judges, attorneys and advocates, regrettably today only the senior and older ones. I never regarded Raymond Chalom as being of sufficient personal or professional standing to make him a natural candidate for appointment as a judge, despite what he clearly feels about his own merits.
A point that is relevant only because it goes to character, is that Chalom claimed to a reporter of the Sunday Independent recently that he was an “anti-apartheid attorney.” This despite the fact that Chalom was a leading light in a political party, the New Republic Party (NRP), that stood for a four-chamber parliament, with one for blacks and one for every other race group. It was described by the anti-apartheid PFP as a “racist party.” It was only dissolved in 1988. That membership is old history and his own affair, but an “anti-apartheid attorney” may not be entirely accurate.
The point is surely that every aspect of government, in whatever branch, together with those who exercise power and authority under our Constitution, must be held to account. No one is above the law; certainly not the lawyers and not the judges. But we need to be careful of simply accepting the smears of those who aver corruption and misconduct and then do not follow up their allegations with criminal charges that can so easily be laid with the SAPS. Our Constitution is precious and the losers, the disgruntled and the politicians on the make who undermine it with wild and unsubstantiated allegations need to be repudiated.
Douglas Gibson is a former opposition chief whip and a former ambassador to Thailand. His website is douglasgibsonsouthafrica.com
This article first appeared in The Star newspaper.