Johannesburg - Questions around the criticism and attack of the judiciary found their way into Constitutional Court Justice Mbuyiseli Madlanga’s interview for Chief Justice as expected.
Madlanga is the first of the four judges vying to be named South Africa’s next Chief Justice following Justice Mogoeng Mogoeng’s retirement last year.
His interview is taking place at the Capital on the Park Hotel in Sandton, Johannesburg.
Madlanga told the panel of interviewees that criticism of the judiciary should be expected and accepted, but it should never go to a level where the courts no longer enjoy the respect of the general public.
He maintained that criticism should be fact-based and not “calculated” to bring the courts into disrepute.
Madlanga also said that judges should not comment on ongoing cases that may indicate they were biased and neither should they comment on political controversies, adding that people were entitled to criticise the judiciary.
Justice Madlanga has arrived at the interview room. He has taken his seat and his interview will begin shortly @IOL pic.twitter.com/ugDyhiK94u
— Kailene Pillay (@kailenepillay) February 1, 2022
“Criticism can and is at times robust and we must take it on the chin. But sight should not be lost that we perform a constitutional function.
“Courts should continue to function like courts. The criticism should never go to a level where the courts no longer enjoy the respect they enjoy. They should enjoy the legitimacy in order to ensure that the rule of law functions,” he said.
Madlanga highlighted that judges also enjoy freedom of expression but there were limits.
Madlanga, in his view, indicated that there were two limits.
The #ChiefJustice interview with Justice Madlanga has adjourned for tea. It will resume just after midday.
— Kailene Pillay (@kailenepillay) February 1, 2022
Madlanga leaves the interview room for a short break @IOL pic.twitter.com/YP4Pxym2zx
He added that the Constitution was such that there were political implications around it.
“Unlike rationality, courts can actually question the reasonableness of government action.”
He said that outside of the Constitution where issues arise the judicial code of conduct warns judges to steer clear of that.
The senior legal member noted that criticism should be dealt with at a leadership level, with the head of the judiciary addressing such criticism under certain circumstances.
“There is a role for the Office of the Chief Justice to play there … we cannot try to always run and react to criticism,” Madlanga said.
When asked to distinguish between criticism of and an attack on the judiciary, Madlanga noted that he could not separate that as it all lay in the content.
One of the commissioners, EFF leader Julius Malema, posed an example, asking Madlanga if he were to say the court does not deliver judgments on time, would that be an attack or criticism, to which Madlanga said he would see it as constructive criticism, saying: “It is a fact.”