“Judges cannot be influenced by public opinion, but they are open to probing. Every institution should be subjected to probing which should not be viewed as disrespect,” he said.
Speaking during the formal swearing in of newly appointed judges of the High Court, Onkemetse Tshosa and Onkagetse Pusoentsi, the President said the judiciary is no less when it comes to probing.
He explained that anybody can criticise as long as they are not being disrespectful. He emphasised that when people become disrespectful they will call them to order but must be free to debate issues which are before the court.
“Often I hear refrain, matter is sub-judice and that it cannot be discussed. No, first, it is a misunderstanding of the sub-judice principle that things cannot be discussed because they are before a court. No, not here or anywhere else,” he said.
(In law, Sub-judice means under judicial consideration and therefore prohibited from public discussion elsewhere, “the cases were still sub judice”).
Quoting the Indian quote of procedure, Boko said it regulates sub-judice and says what it is and that often the sub-judice rule applies more forcefully in jurisdictions where they have a jury. He said that members of a jury or jurists can be influenced as they are ordinary laypeople; for instance, they can be peers of the accused.
President Boko said that judges are not like the jury and instead play the composite role of trier of fact and trier of law. Boko said that in that composite capacity, it would be a sad day if anyone thinks they can judges can be influenced.
Touching on the incoming Judges, Boko pointed out that their dedication and hard work should serve to restore and strengthen public trust in the judicial system. “You are coming into the space or returning at a time that is slightly different in history. We now have a government at the very centre of what we do, which is human rights. We are very seldom, very serious, and we look to the judiciary whose role in terms of the constitution is to interpret the law and tell us what the law says,” he said.
He explained that rightly or wrongly, judges are learned in law and not just black letter law, that they have something above and beyond just a text, that they can summon powers of interpretation and wisdom that are not available to the ordinary lawyer.
Boko also stated that judges are jurists because it means that in their line of work the baggage that they carry, be it political or social must not interfere with their judicial probity which needs to be understood.
“There is no interference with the judiciary, and there has never been any such, and there should not be any interference from the executive, none whatsoever. I am a lawyer, and I understand. I do not want to influence any judge and do not want anyone to influence any judge,” he said.
Boko also said the judges must exercise their independent legal judgment, and where the state is wrong, they must declare without fear and favour.
“That is how this things must be so that people continue to place faith and confidence in their judiciary and their judges, knowing that they have absolutely nothing to do with any influence, external or how so ever from anyone much less the executive,” he concluded.
