Criticism of the judiciary in a constitutional democracy

March 1st, 2022

It goes without saying that in a constitutional democratic country, such as ours, the judiciary is the ultimate guarantor of the rule of law and all that it encompasses. Added to that, the judiciary has an important role of being the final arbiter in all disputes that society has. Therefore, criticism of the judiciary should be made with consideration of the position the judiciary holds in the ecosystem of a constitutional democracy. Of utmost concern – and a potential threat to constitutional democracy – is when there are allegations of the judiciary being captured or seeming to toe a particular political line.

In July 2015, the then Co-chairpersons of the Law Society of South Africa, Richard Scott and Busani Mabunda, attended a press conference by former Chief Justice Mogoeng Mogoeng to support the judiciary in its call for respect for its independence and the rule of law. The aim of the press conference was to discuss the repeated and unfounded criticism of the judiciary during that time. ‘Criticism of that kind has the potential to delegitimise the courts. Courts serve a public purpose and should not be undermined,’ said the former Chief Justice.

In his statement, on behalf of the judiciary, the former Chief Justice noted that a judge’s principal article of faith is to adjudicate without fear, favour or prejudice. ‘When each judge assumes office, she or he takes an oath or affirmation in the following terms: To be faithful to the Republic of South Africa; to uphold and protect the constitution and the human rights entrenched in it; to administer justice to all persons alike without fear favour or prejudice and in accordance with the Constitution and the law. To judges this obligation and the oath are sacred.’ He added that, in terms of the Constitution, no arm of the state is entitled to intrude on the domain of the other. However, the Constitution requires the judiciary ultimately to determine the limits and regulate the exercise of public power.

Speaking on the criticism of the judiciary former Chief Justice noted that: ‘Judges like others should be susceptible to constructive criticism. However, in this regard, the criticism should be fair and in good faith. Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable.’ The former Chief Justice acknowledged that judges, like other mortals, err, but he said that several levels of courts – through an appeal mechanism – serve a corrective purpose when judges make a mistake. Moreover, judgments were often subjected to intensive peer and academic scrutiny and criticism. The Chief Justice rejected the notion that in certain cases judges had been prompted by others to arrive at a predetermined result. He added that, in a case in which a judge did overstep, the general public, litigants or other aggrieved or interested parties should refer the matter to the Judicial Conduct Committee of Judicial Service Commission (Barbara Whittle ‘Profession stands behind Chief Justice and judiciary in raising concern on attacks on the judiciary and the rule of law’ 2015 (Aug) DR 14).

In August 2019, at the Gauteng Attorneys Association annual general meeting, guest speaker retired Judge, Kathy Satchwell, said: ‘The judiciary is criticised. There is nothing wrong with this. We are all subject to scrutiny. It is why we write judgments so that they can be read and analysed and discussed and debated. Where wrong, they are taken on appeal and again and again.’ She pointed out that criticism of judgments and rulings is also expected. She said the judiciary must be open to scrutiny. ‘We must expect debate and [engage] with the law. But judges speak through their judgments. We do not defend ourselves or our work in the public arena,’ Judge Satchwell added (Kgomotso Ramotsho ‘The judiciary should be left to do its work’ (, accessed 21-2-2022).

In Mkhatshwa and Others v Mkhatshwa and Others (CC) (unreported case- no CCT 220/20, 18-6-2021) (Khampepe J (Mogoeng CJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J concurring)) the Constitutional Court (CC) held that courts and their members are by no means immune to public criticism and accountability to those they serve. However, that does not mean that it is open to a litigant to level unfounded and scurrilous attacks against judicial officers to further their own end. The CC pointed out that it enjoys a sacrosanct power and privilege to uphold the law in furtherance of the constitutional project. The CC added that litigants who resort to the kind of tactics displayed in this matter must beware that they are unlikely to enjoy the CC’s sympathies or be shown mercy in relation to costs (Kgomtosho Ramotsho ‘Biowatch principle does not apply to a matter that is not of a constitutional nature’ 2021 (Aug) DR 35).

While presenting his presidential report at the annual general meeting of the National Association of Democratic Lawyers (NADEL), the President of NADEL, Deputy President of the Law Society of South Africa and Member of the Judicial Service Commission, Mvuzo Notyesi pointed out that the judiciary is the last line of defence in a constitutional democracy and that there must never be a suspicion that the judiciary is captured. (Kgomotso Ramtosho ‘The hope of society lies on the shoulders of progressive legal practitioner’ (, accessed 21-2-2022).

In as much as a constitutional democracy encourages healthy debate and dissection of important issues affecting its citizens, this should be done in a method that ensures that the very same democracy is not threatened. When a need arises for the judiciary to be criticised, this should be done in a manner that is constructive and does not attack the judiciary or democracy. The importance of the judiciary is quite apparent in democratic South Africa; therefore, its independence should be safeguarded.


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This article was first published in De Rebus in 2022 (March) DR 3.

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