MAKHUDU SEFARA

The reactions of the public, lawyers and even the magistrate during the heated courtroom drama ahead of EFF leader Julius Malema’s sentencing this week were laden with emotion, leaving some to wonder how much room remains for dispassion in the law.

If you ask Malema’s counsel, Tembeka Ngcukaitobi, the law ought to work in a dispassionate way. In court this week, he kept imploring magistrate Twanet Olivier to be fair and treat Malema like everyone else — equal before the law — and not punish him for being a leader.

But are such noble concepts as emotional detachment possible in law? Can legal practitioners rise above the vagaries of normal life, such as feelings of anger, embarrassment, happiness or even cultural connection?

Advocates of legal positivism like English philosopher Jeremy Bentham believed in human beings’ inherent ability to apply the law scientifically by applying codified principles to facts and evidence through pure logic and reason. Bentham believed jurists could focus on “what the law is” rather than “what it ought to be”.

But many legal commentators this week expressed themselves as though it’s common cause that courts — “through dispassionate evaluation of verifiable facts” — arrive at inherently fair and true decisions. I don’t know if it is fair, or even desirable, to expect science out of legal processes.

Let us think of this: On August 13 2023, Malema stood in the dock and chastised magistrate Olivier for being late.

I can’t help wondering, more so when there is a departure from case law in relation to Olivier’s harsh sentencing, about the source of her embarrassment. But the simple fact that the sentence is harsh is not evidence that she harboured ill will for someone who tried to destroy her career

He said: “She says come at 12; we come at 12, but she’s never here. We must not talk because we are scared to go to jail? It can’t be. We have rights and our rights must be respected. It’s load shedding.

“It doesn’t matter what time we start — whether we start at 11 or at 1pm — she’s going to be late. And then no one must talk about it. [For] five years we have been here; she has never been on time. No journalist has ever written about that. No single journalist has ever written about her ill-discipline. Or coming late to court.”

Malema’s frustration, I imagine, was sitting in the dock, being photographed for a whole hour before each sitting without the magistrate showing up. It’s like being an animal in the zoo, a subject of interest that is photographed to no end. No utility served.

But Malema’s critique of Olivier was broadcast and published across the country. The message was clear: Olivier is unprofessional, unworthy of promotion in the future; ought rightly to be investigated for misconduct; is probably lazy or hates her job. Malema left nothing to the imagination.

The impact of this attack on Olivier’s integrity and career is unknown, but probably considerable. Any normal reaction would have been: “Where does this accused person, whose fate is in my hands, get the temerity to embarrass me through such a theatrical performance in the dock? Let’s see who will have the last laugh!”

It’s possible I am wrong and Olivier’s heart has no feelings, just simply pumps blood. It’s possible that anyone can criticise her and their words are like water off a duck’s back. The call for dispassion, even by Ngcukaitobi, requires us to believe that jurists are a special, unfeeling breed, disinterested in the morality of the law — just giving us, per Bentham, the law as is.

Biologically, though, it is unreasonable because judges are human and, to stretch it, possibly can harbour ill-will without expressing it. But who would know for sure? I can’t help wondering, more so when there is a departure from case law in relation to Olivier’s harsh sentencing, about the source of her embarrassment. But the simple fact that the sentence is harsh is not evidence that she harboured ill will for someone who tried to destroy her career.

To expect everyone to believe that Malema’s unprecedented attack on Olivier in 2023 isn’t, even in a small way, a consideration, is unreasonable

But to expect everyone to believe that Malema’s unprecedented attack on Olivier in 2023 isn’t, even in a small way, a consideration, is unreasonable. Personally, I don’t believe in the putative dispassionate practitioner of the law who is unaffected by their environment. Sociology, in any case, tells us that despite much training we are very much products of our environments even as we try, in turn, to shape such environments.

In the book Judges, Judging, and Judgment, by Chad M Oldfather, it is recorded: “Judges likewise tend to imagine that they outperform their colleagues in terms of their abilities to evaluate witness credibility and to avoid racial or gender prejudice. Judges, like everyone else, tend to wear rose-coloured glasses when looking in the mirror. We should not be surprised to hear them tell us that their decisions are simply a product of the law, even if it may appear to us that they are a product of something else entirely.”

Some may theorise that US President Donald Trump wanted Malema arrested and that AfriForum are his local agents which ensured this was realised. Trump and AfriForum wouldn’t have put the gun in Malema’s hands.

But I do think that Malema made Olivier livid through that 2023 attack on her integrity. I also think she is a normal human being who struggles to hide her irritations and her emotions, like the rest of us. Her unprecedented sentence of Malema reeks of anger, just as his reaction outside court was an outpouring of anger.

The very nature of the judicial process, though, takes into consideration that judges are not shielded from the “forces that afflict human cognition”. This is why magistrates’ decisions can be appealed up to the Constitutional Court.

My view is that Malema messed up by playing with firearms and then attacking the magistrate from the dock. Olivier also messed up by allowing her emotions to cloud her judgment and issuing a harsh sentence. Two wrongs don’t make a right.