Judging – in the judicial sense – is a fine art and an imprecise science. There is rarely one “correct” answer in the resolution of a legal dispute between or among litigants. That is why a decision even of a Full Bench of three judges of the High Court can be reversed on appeal by the Appeal Court, and a unanimous decision of five judges of the Appeal Court in turn reversed by 8 to 11 judges of the Constitutional Court, the highest court in the South African court hierarchy.
It is also why 8 to 11 judges of the Constitutional Court can be split on an issue. On two occasions thus far, the Constitutional Court has even delivered a 5-5 evenly split opinion.
So imprecise is the science of judging that even a unanimous decision of 11 judges of the Constitutional Court is not necessarily the “correct” answer to a given legal question that serves before them. Thus, Ulpian – a prominent Roman jurist considered one of the great legal authorities of his time in the First Century – was probably right when he wrote (in Dig.49.1.1)
“an appeal sometimes alters a well-delivered judgment for the worse, as it is not necessarily the case that the last person to pronounce judgment judges better”
In fact, a court is not there to provide answers to difficult questions of law; there is a bevy of practising advocates and attorneys for that. The role of the courts, through the judges who preside there, is to resolve legal disputes between or among litigants.
The judges who decide legal disputes in our courts are not machines (the much-vaunted Fifth Industrial Revolution has not progressed that far). They are fallible humans with mood swings, political and religious beliefs, and personal prejudices which follow them wherever they may tread.
So, if we accept that judicial judging is an imprecise science, and that judges are fallible and carry their personal prejudices to the bench, can it confidently be said that judges who decide cases from the prism not of the law as it is but rather from the prism of their personal prejudices (the law as they wish it to be or “Palm Tree Justice”) do so fairly, without favour or prejudice, as their Oath of Office or solemn affirmation enjoins them to do?
Enter Justice of the Constitutional Court of South Africa, Mbuyiseli R Madlanga, and offers this thesis:
“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”
This is a sentiment also expressed by Rebecca K Lee, an Associate Professor of law at the Thomas Jefferson School of Law in the United States in a paper titled, “Judging Judges: Empathy as the Litmus Test for Impartiality”, referenced by Justice Madlanga in this contribution with approval. It is available at https://www.anchoredinlaw.net/wp-content/uploads/2019/11/Judging-Judges_-Empathy-as-the-Litmus-Test-for-Impartiality.pdf.
As a sociological proposition, Justice Madlanga’s thesis raises an interesting question about human ability to self-correct. But as a jurisprudential proposition (or theoretical study of law) it raises difficult questions about ethics and the integrity of the rule of law.
For example, if a judge’s “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” is rooted in racism or sexism or religious fundamentalism or homophobia, is there a place in our judiciary – for the sake of judicial diversity – for a judge who believes that black people are inherently incompetent, lazy and dishonest; or that white men are the salt of the earth and that life in Africa without them would be unbearable; or that same-sex relationships are a sin before God; or that women counsel belong at home raising children and not in court arguing cases against men?
Jurisprudentially, the thesis also raises a vexed question that has been in the minds and mouths of many political and legal activists since the advent of the Truth and Reconciliation Commission of South Africa (the TRC) and it is this: Since the TRC seems to have elected not to investigate the role that the judiciary (or some judges) played in the enforcement of apartheid “laws” (some of which are still in the statute books almost 30 years after the formal abolition of apartheid in South Africa) or in facilitating the achievement of apartheid goals, how are we to know – short of a judge’s confession – that a judge’s decision in a case was not informed by his or her political or religious views, or by racist or sexist or homophobic prejudices that “followed her or him” to the bench?
It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:
“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”
If judges are free to carry these prejudices to the bench for the sake of diversity, what mechanisms are there to ensure that they decide cases based on the law as it is – allowing only for differences of opinion in the forensic interpretation of the law which can, to an extent, be ironed out through the appeal and review processes – and not based on their prejudices and jaundiced perspectives about the world masquerading as law?
Is the presumption of judicial impartiality and the Oath of Office or solemn affirmation sufficient solace to a black South African litigant who feels prejudiced by a judge or magistrate who decides that apartheid was not a crime against humanity, despite a 1966 United Nations General Assembly Resolution to the contrary, a 1984 UN Security Council endorsement, and the 2002 definition of Apartheid in the Rome Statute of the International Criminal Court?
Is the Judicial Service Commission process of appointing and disciplining judges sufficiently robust to weed out candidates and serving judges who bring their toxic prejudices to the bench?
Can it be said with confidence that the integrity of the rule of law is in safe hands, and that the country’s equality jurisprudence is in fine fettle, when the outcome of a case depends entirely on the politics or personal prejudices of the judge the litigants draw?
Justice Madlanga is emphatically not advocating for a judge finding reasons in his or her “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” for a predetermined outcome. But where does that disclaimer leave judicial activism in appropriate cases? Is there a place for judicial activism in today’s South Africa? Can there be judicial activism without a predisposition to one outcome over another?
These are just some of the questions that this important contribution raises.
Read Full Analysis and Review here: Judging According to Personal Attributes – PDF
SAJEI_Journal_-_Vol_1_-_Issue_1 Original article at page 48
Judging Judges_ Empathy as the Litmus Test for Impartiality