Dear, Justice Professor Key Dingake

Kgosietsile Ngakaagae | Friday January 31, 2020 13:09

I had the privilege of reading your thoughts on the judicial craft in a Mmegi article entitled “Theorising about Judgeship”. I celebrate the article Sir. Judges, in our jurisdiction, seldom feature in media space to share insights on their craft. Judges rarely have a point of meeting with the body politic and the academia except in judicial proceedings stately dinners. When I was studying at Stellenbosch University, judges were often invited by the academia to give public lectures on key areas of the law. It happens rarely here, if it happens at all. One must, of course, acknowledge that the calling of judgeship innately comes with considerable social and other inhibitions. On appointment, Judges inevitably give away a lot of freedoms for the public good. I do not take lightly of that as a venerable sacrifice in the national service. 

As a legal practitioner, to theorise with you on Judgeship is an honour. I have been practising law for nearly 20 years now, having been called to the bar in November, 2000. The first 10 years were as much about professional maturation. Having virtually lived the whole of my professional life this far, in the courts, I have been met with a degree of success just as I have had my own share of professional low points.

Sometimes I have left the courts triumphant and sometimes it has been the exact opposite. One thing, I have learnt, Sir, is to respect the decision of the judge regardless of how violently I deeply differ with it. As such, I have, like the rest of my colleagues at the bar, stood up to say, “as the court pleases” even as a storm of anger raged within me. Years of practice have taught me that the judge, even when wrong, must remain right until otherwise overruled by a superior court. I have learnt that I cannot be the best judge in my own case and that the maxim, nemo iudex in causa sua, had as much application to me as to those I represent.

In the article, you make the point that “judges are trained to respect each other and to tolerate divergent opinions.” I respectfully beg to differ in part, Sir. Judges sometimes come to the bench with all manner of baggage. Some bring impatience, some personal pomposity, some intellectual arrogance and some, conscientious prejudices. Regrettably, these play out in the courts daily. I must say, Sir, that I do not speak of Judges who uncompromisingly demand the best of lawyers in their courts. During my days as a prosecutor, I had the misfortune of always finding myself before a certain judge who took me to task on just about every submission I made. I still celebrate him as a mentor, because in the grilling I routinely underwent, I did not only grow but my submissions too, received a hearing. But, what is the use of an intellectually brilliant presiding officer who only listens to the voices in their head and has no patience to be persuaded? Often, what a litigant wants from a judge is simply to be heard. There is nothing as painful to a litigant, or to a legal practitioner, as being denied a hearing. A hearing, on this score, refers to access to the judge’s ears, and not to a physical appearance before them.

You have, Sir, shared insight into the subject of public pressure especially in an age of social media. I tremble when I way that it is not rare, in our jurisdiction, of which you were are apart, to find presiding officers who would sooner court the applause of the public than that of their consciences. It is this category Sir, that lawyers end up respecting more out of fear of judicial sanction than out of professional and ethical duty. Your position that, “when pronouncing a decision, the judge should be least bothered by whether it will receive applause or condemnation of the many because such considerations are irrelevant”, is condign. Regrettably, the subject of “judicial fortitude” is all too often, assumed. Make no mistake about it, Sir, I would be among the first to argue that our judiciary is largely independent.  It would be remiss of me to denigrate the overwhelming majority of their Lordships and their Worships who so diligently discharge their public trusts. But it would be equally remiss of me not to mention that we do have a problem of those judicial officers who simply freak out on the stage.  In the end, litigants think that they owe loyalty to extraneous influences when possibly, they simply cannot stand the prospect of public condemnation. The result is intellectual dishonesty in their judgements which robs us of their unquestioned brilliance. To err in law is a part of our human frailties to which judges are not immune. That is why we have appellate courts. It would be a denial of my calling if I fail to respect a judge because they have erred in law. 

I write simply to salute your insights Sir. Indulge me to say that judges must not only be liberated from the political, social and media influence, but from their own fears and prejudices too if they must serve the public better.