Chair of commission, Judge Raymond Zondo in 2020. Photo: Gallo Images/Sowetan/Veli Nhlapo
Whilst criticism of the judiciary is welcomed, legal experts have warned that baseless and personal attacks on judges could land those responsible in trouble with the law.
This comes against the backdrop of the Constitutional Court, particularly Chief Justice Raymond Zondo, coming under attack for setting South African Communist Party leader Chris Hani’s assassin Janusz Waluś free.
ALSO READ: ConCourt orders Lamola to release Janusz Waluś on parole
Experts have warned that irrational utterances against judges invited charges of scandalising and contempt of court, with those threatening or calling for violence risking prosecution for incitement.
Constitutional law expert Dr Llewelyn Curlewis said it was unfortunate that the public did not appreciate it when the courts actually get it right every now and then.
He warned South Africans to refrain from comments amounting to incitement, adding that “do not be surprised if criminal charges might be laid against them if an interested party deems it necessary to do so in order to protect our democratic society”.
Curlewis said Zondo, in agreement with other judges, interpreted the applicable law correctly in releasing Walus on parole.
He said everyone was equal before the law, both friend and foe, and that the Constitution cannot pick who to protect or not
“When applying the law on sound principles, instead of emotional outbursts, then we have a legal system functioning well. That must be celebrated and not criticised,” Curlewis said.
Hani’s widow, Limpho, was infuriated by the ruling on Monday, describing it as “diabolical” and suggesting Zondo was saying Waluś did well to kill her husband.
She swore that karma would deal with the bench of judges responsible for the decision.
In her emotionally charged attack, she referenced tourism minister Lindiwe Sisulu’s earlier attack on the judiciary in an opinion piece in which she had described some within the legal sphere as “house negroes”, worse than the oppressor.
Gauteng premier Panyaza Lesufi joined the onslaught, charging that “we feel betrayed… we can’t leave this unattended” and urging his followers not to allow the supposed “miscarriage of justice”.
The Economic Freedom Fighters (EFF) also dismissed the ruling as a betrayal and insensitive.
Most extreme in her criticism was the daughter of former president Jacob Zuma, Dudu Zuma-Sambudla, who tweeted ‘Today Is A Day For The Shooting Range & Gun Cleaning’ after the ruling.
ALSO READ: ‘A day for gun cleaning’: Zuma’s daughter calls for Waluś ‘to be taken out’
In another tweet, she ordered “Whoever Is Working On The Paperwork Of The Release Of That Assassin It Is Your Patrioctic Duty To Leak That Information So We Can Organize A Welcome Team So That We Can Take Him Out” (sic).
Bernard Bekink, Professor in the Department of Public Law at the University of Pretoria, said the politicised and emotional attack on the judiciary destabilises the entire constitutional order, rule of law, and judicial independence.
He said everyone must be treated equally, regardless of their position in society.
“…that is what the principle of the law requires. Because when suddenly people are going to be treated differently, then the whole system falls apart,” Bekink said.
He agreed the ruling stirred emotions but said it was the responsibility of the leaders to speak against and not for the attack on the judiciary.
“If there are people calling for physical action and violence to take place, those need to be dealt with according to what the law requires,” Bekink added.
Be warned
Director of Accountability Now, advocate Paul Hoffman, said the rot started when Lindiwe Sisulu was allowed to get away with her attack on the judiciary at the beginning of her campaign for the ANC presidency.
He said people who made these angry statements should be made aware of the offence of scandalising the court and contempt of court.
ALSO READ: Lindiwe Sisulu retracts ‘unsubstantiated’, ‘inappropriate’ comments on judiciary
“Our judiciary is our bulwark of saving our constitution from the ravages of lawlessness and it ought to be treated with respect by everybody.”
He said personal attacks on judges for rulings one disagreed with was not an appropriate way to respond to a finding.
“Attack the finding by all means, if you have any rational basis for doing so, but do not just attack judges. You will get yourself into trouble,” Hoffman warned.
University of North West political science professor André Duvenhage believes the ruling has been weaponised by president Cyril Ramaphosa’s detractors ahead of the ANC December elective conference.
He said this was bolstered by the Supreme Court of Appeals ordering former president Jacob Zuma back to prison as his release on medical parole was unlawful.
Duvenhage said the ordinary man on the street, not well informed, would believe government was letting Hani’s murderer free and jailing Zuma the freedom fighter, feeding well to the anti-Ramaphosa narrative.
“They will use it. It shows how desperate the other camp is, but they have no chance of success. This narrative can create perceptions, may influence public opinion but will not have any direct impact,” he added.
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