Courts can be their own worst enemy

By: Steven Friedman

IN A South Africa in which it is fashionable to bemoan anything official, courts enjoy great esteem. But this may not last if they continue to operate as they do now.

In a public debate loud in its criticism of politicians and officials, judges and courts enjoy widespread respect. The few politicians who denounce them are keen to use them whenever this suits their purpose.

To be sure, the courts’ legitimacy is not quite as solid as it may seem. When people are victims of gruesome violence, citizens in their community, and politicians, often insist that whoever the police arrest should be found guilty and sentenced before the courts have been able to hear the evidence. Courts are there to decide who committed a crime. Why bother with them if we assume that whoever is in the dock is guilty?

But, at least among the one-third of the people whose voices we hear, the courts’ role in deciding what the law is and applying it is not challenged. This is usually taken for granted but should not be. Independent courts are a crucial feature of a working democracy and there are many countries where they do not enjoy the respect that they do here.

On Our Screens

But this is not sure to last. The courts here often seem determined to undermine their own credibility, not because of the judgements they hand down but because of the way in which they go about their business.

One reason for wondering whether the courts here can retain respect is that it is now far easier for some citizens to see what the courts do and how they do it. It is becoming increasingly common for television channels to offer their viewers hour upon hour of court proceedings –this saves them the trouble of digging for news, something at which they are not very good. And so many people can, with very little effort, see what the courts do.

It is hard to imagine that watching televised court proceedings has made anyone respect lawyers more. People are more likely to wonder whether they are paid the large sums they receive to ensure that justice is done swiftly or to do what they can to prevent this.

Proceedings very often consist of long technical disputes, many adjournments and postponements and much grandstanding for the cameras. What most of us expect courts to do – quickly decide the merits of the case – seems to happen, if it happens at all, when all other options have been exhausted.

The best-known example was on show a few days ago – former president Jacob Zuma’s endless arms deal trial.   The case was back in court last week but the trial is nowhere near beginning. The judge, Nkosinathi Chili, gave his reasons for refusing, in March, to allow Zuma to continue his long-running attempt to have the prosecutor, Billy Downer, removed. The judge pointed out that the courts had made it clear that they see no merit in Zuma’s case against Downer.

Inevitably, Zuma’s team insisted that it would appeal against Chili’s judgement – even though no court has found any merit in their case . Downer asked that the trial begin next April, which Zuma’s lawyers labelled ‘absurd.’ The appeal process will begin next year and there is every prospect that the case will not begin in 2025.

Of course, Zuma was first charged in this case two decades ago. There has been much-publicised legal activity since then and the current trial began two years ago. If the case ever gets to trial, we can be sure, given past performance, that it will be delayed repeatedly by technical challenges and as many appeals as the system can bear.

So, the odds are against the case ever reaching a conclusion. The South African public may never know whether a former President was guilty of corruption. A great deal of effort is still being spent to ensure that justice is never done.

In fairness, the Zuma trial is not typical of what happens in the courts. Zuma and his legal team have been accused of employing a ‘Stalingrad’ strategy in which they continually raise points they don’t expect to win to delay his trial as long as possible.

Evidence of this came in 2017 when Zuma’s legal team, having spent years insisting that an earlier national director of prosecutions was right to  drop charges against him, admitted that it was wrong – and then immediately announced a new attempt to get the charges dropped.

The case does seem to show that people with access to money can use the justice system’s rules to delay trials or to make sure that they never happen. This reduces respect for the justice system because it signals that the well-off and the well-placed can use the rules to ensure that the law never applies to them.

What to do about this is not as straightforward as we are often told. The rules used by Zuma’s lawyers – and those serving other people eager to ensure that trials do not happen –are meant to protect people from unfair prosecutions. Any of us who is wrongly accused of a crime would want to know that the rules protect us against injustice.

So, we have a dilemma. To water down the rules which some accused people and their lawyers use to avoid justice may open the door to greater injustice. But, the more this is allowed to continue, the worse the justice system looks.

What the public should be demanding is rules which protect the accused’s rights but make it harder to use the system to avoid justice. Lawyers should be able to come up with ways of doing this. Because the courts are accountable to society, they should be pressed to do just that.

Endless Delays

But cases like Zuma’s are not the only ones which seem to drag on forever. In the others, the problem seems to be not that one party is trying to prevent a trial but that lawyers and judicial officers don’t seem to care how long a trial takes.

A while ago, I was asked to give expert evidence in a hearing in which a worker was challenging his dismissal. The outcome obviously affected his life directly. But the case was delayed and was heard months after it was scheduled. It was delayed because this was convenient to the lawyers who were arguing it. The convenience of the dismissed person was never mentioned.

A current trial covered by television which illustrates the problem is that in which five men are accused of the murder of the footballer Senzo Meyiwa. The accused first appeared in court charged with the crime around four years ago. And yet the trial seems nowhere near its end.

There are some understandable reasons for this. The first judge assigned to the case fell ill and then was suspended. Each of the five accused is represented by a different lawyer and so each witness must be cross-examined five times. But, even bearing all this in mind, the trial seems to take weeks to do what we would expect to be done in days.

The case included a ‘trial within a trial’ which examined whether confessions by some of the accused were given freely. A hearing of this sort usually takes a few days at most. Yet this one lasted at least four months.

There have been repeated delays. People who have watched some of the proceedings have noticed both that there always seems to be some reason for an adjournment and that it takes weeks to deal with each witness.

This must erode public confidence in the courts. It creates the impression that lawyers are far more interested in their own needs than those of justice and so are happy to allow cases to drag on for years. The Meyiwa trial was once the subject of political controversy because it took years for police to arrest any suspects. So the public may well be watching, which does the courts’ reputation no good.

These are not isolated cases. Justice in this country is notoriously slow and, while we are often told that the problem is a shortage of judges, the more citizens see cases on television, the more they are likely to feel that the justice system is designed to work for lawyers, not for the public it is meant to serve.

So far, this has not undermined respect for the courts – although some media have complained about the endless delays in the Meyiwa case. But, the more citizens see lawyers dragging out cases as they put their own  convenience first, the less likely is it that this will last.

Because courts are essential to democracy,  citizens need to demand that they hear cases within a reasonable time and so dispel the suspicion that they are there to serve lawyers rather than the country. The new chief justice, who took office a few weeks ago, should be asked to place this issue near the top of her agenda.

Prof Steven Friedman is a research professor at the University of Johannesburg, faculty of humanities, politics department, and writes in his personal capacity.