Analysis

The inarticulate major premise and its pernicious effect on justice

By Tankiso Moeketsi

The inarticulate major premise

In their adjudication of disputes, judges are assumed to be impartial and guided by nothing but the law and only the factors relevant to the dispute at hand. But is this so? Judges are human beings like everyone else. They each have personal experiences, a unique background, a race, a gender, a world outlook and follow media discourse, to name but a few. All these factors influence the decisions that judges make. Imagine the sentence a black judge who secretly admires the Pan Africanist Congress (PAC) and endorses the slogan “Kill the boer” would give to a white male who is convicted of murdering a black person. In a rape trial involving an accused black male, imagine the inclination of a white female judge who regards black males as having a culture that regards women as there to please them. These predilections or non-legal factors that influence judges’ decisions are called the inarticulate major premise.

Why it is important for judges to acknowledge it

One expects judges to be honest enough to introspect, identify and then neutralise their inarticulate major premises in order to avoid subjecting litigants to injustice. Judges who are in denial about their predilections are a danger to the course of justice because they, with their many years of experience, could clothe their personal views with interpretations to statutes and previous court decisions that suit their predetermined outcomes.

Mainstream media and social media attacks on the Public Protector

Anyone who follows current affairs through the existent mainstream media platforms and social media has undoubtedly noted the persistently negative and hostile media coverage that the incumbent Public Protector has been subjected to. Her offices excellent work is constantly overlooked. For this, one needs to visit her office’s twitter account and website. The dominant narrative from this slanted media coverage is that the Public Protector is incapable of doing her work and this has an influence on some of the judges who have to decide matters related to her work as they might have been exposed to the existent narrative through their following of current affairs. The Public Protector’s counsel in her case against the President of the country aptly submitted before the North Gauteng High Court on 1 August 2019 that, irrespective of the strength of their cases, all that her adversaries seem to have to do is to show up in court for them to have findings made in their favour.

 Constitutional Court decisions

On 22 July 2019 the Constitutional Court in Public Protector v South African Reserve Bank [2019] ZACC 29 dismissed the Public Protectors appeal against the High Court order ordering her to personally pay 15% of the legal costs incurred by her office in its High Court litigation against the Reserve Bank because her conduct had fallen short of what was required of her (Par 158). The effect of this decision is that from then on at least every leader of an institution based on chapter 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution) and possibly lower court judges could have personal costs orders issued against them if they are found to have acted in a manner similar to that the Public Protector was found to have acted in. One argument raised by the Public Protector’s legal team was that such an order could have a chilling effect on justice because the possibility of it being sought against judges could deter them from developing the common law as required by section 39 (2) of the Constitution out of the fear of being mulct in personal costs orders if they got the law wrong. The Court disposed of this argument in an unnecessarily legalistic fashion devoid of reality when it stated that such fears should not exist if public officials kept to their expected standards (par 159).

Recently Potterill J in Gordhan v Public Protector and Others (48521-19) [2019] ZAGPPHC 311 (29 July 2019) found against the Public Protector. One of the Respondents in the case, the Economic Freedom Fighters (EFF) stated that it would seek direct access to the Constitutional Court to appeal this decision as the judge had been unduly biased against their counsel and that of the Public Protector. In my view, undue bias is conduct that falls short of what is expected of a judge. In light of the Constitutional Courts decision in the Reserve Bank matter, what happens if the EFF includes a prayer for a personal costs order against Potterill J? Whether they succeed or not, the fact that such an order is even a possibility highlights the effect of the Constitutional Courts decision. This was not the first time that the predilections of Constitutional Court judges had influenced their decisions.

In Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11 (Nkandla case), desperate to give the Public Protector’s reports binding effect, the court stated that this had to be the case considering that public officials will act in bad faith when the Public Protector made adverse recommendations against them (par 55). Interestingly, in United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21 the Constitutional Court displayed hypomnesia by holding that public officials could not be assumed to act in bad faith and went as far as saying that no legal basis exists for such an assumption despite its holding in the Nkandla case (par 94).

In City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19, a case dealing with the renaming of the streets of Pretoria (par 1), the Constitutional Court was divided along racial lines when the black judges ruled in the municipality’s favour while the white judges dissented in Afriforum’s favour. Jafta J in his concurring judgment, intimated that his white colleagues were shielding what seemed to be Afriforum’s racist quest to prevent the municipality from replacing the street names that only honour Afrikaner heroes (evil characters to some of us) (paras 129 and 169). The Court was again divided along racial lines in Afriforum and Another v University of the Free State [2017] ZACC 48 in dealing with the emotive question of retaining Afrikaans as a medium of instruction at the University of Free State (par 22).

The decision in Public Protector v South African Reserve Bank joins the Constitutional Court’s ever bulging jurisprudence of injustice – something appalling and shameful. But above all, it accentuates what happens when judges fail to neutralise their inarticulate major premises.

Conclusion

In the mainstream media and social media this pantomime villain that the Public Protector is, is defenceless against a well-co-ordinated propaganda machine spearheaded by certain journalists and at least one Constitutional Law professor (who one assumes would need no lecture on justice) through mainly misleading articles and tweets and retweets of only negative narratives about her. While it is understandable that some in the populace are not discerning enough to detect this injustice, it is disheartening to see judges falling victim to it. Courts are places of justice and to ensure that this is always the reality, judges should identify and neutralise their inarticulate major premises.

Tankiso Moeketsi is  an LLB graduate and a LLM candidate at the North West University. 

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