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Judges, journalists critical anchors of democracy

By Pius Langa

Following is South African Chief Justice Pius Langa’s speech at the launch of Reporting the Courts — A Handbook for South African Journalists by Kevin Ritchie, edited by Gwen Ansell.

THERE is no doubt that the media is perhaps t

he most effective vehicle for expression. It is accordingly one of the most important vehicles to impart information and knowledge.

This launch is an important initiative because it demonstrates, in a tangible way, your seriousness in accurately and adequately reflecting what goes on in the courts of our land. Two questions may arise from this. What does go on in our courts and why is it important for this to be reflected extensively in our media?

Before I deal with the two questions, let me make a few preliminary remarks about the parallel responsibilities of the judiciary on the one hand and the media on the other.

In a sense, in one sphere at least, there is a complementary relationship between the work judges do and the work that journalists do. The two institutions are critical anchors of a constitutional democracy.

Democracy is about the full and free participation of all citizens in the running of their state. In other words, it is government by, for and in accordance with the will of the people.

In order for the people to participate meaningfully, however, they need the parameters of their rights and obligations to be defined. That is the work of the courts which, in turn, can only fulfil this task in the process of adjudicating disputes.

It is here that the media has a role. People need accurate and readily available information, as well as the means to articulate their views or wishes to those in government and in order to influence their fellow citizens.

This is a crucial role: the dissemination of information and diverse views. Some of the information will relate to the rights and obligations of individuals as articulated by the courts. The two institutions are therefore vital in the maintenance of a democratic state.

The two institutions also operate on the basis of certain constitutional guarantees which are designed to benefit the public. We speak of judicial independence; this is independence not only from the executive and the legislature, but also from influences exerted by members of society.

The constitution proclaims this independence and we in turn seek to guard it jealously against any threat, potential or real. In arguing for it, however, we may sometimes lose its true essence, which is that judicial independence is not a privilege that is the exclusive preserve of judges, to benefit them.

It is a right that belongs to all our people. It is they who are entitled to a judiciary that is independent because that is what guarantees them the protection and preservation of their rights and the quality justice they are entitled to. Failure of this independence would result in serious prejudice to society and the state, and seriously weaken our democracy.

Similarly, Section 16 of the South African Constitution, which articulates freedom of expression, specifically refers to freedom of the media as a critical part of freedom of expression. Here again it is society that is the true beneficiary of the freedom and independence of the media.

It has been said: “An independent press is a matter of pride. But the independence of a great institution has its source, its foundations, in the community, not in the institution itself.” — the deputy chief justice of England and Wales in a keynote speech at the Law for Journalists Conference in London, November 26 2004.

The freedom of the media is an invaluable attribute of a democratic state. There is however a cost to this. Society must acknowledge and accept why it is that free speech is one of the essential foundations of a democratic society.

A docile media can only have limited value in contributing to the strengthening of those foundations. To be played properly, that role demands rigorous application.

Independence and a refusal to be intimidated are indeed the hallmarks of a media that contributes to the quality of a maturing democracy. It cannot be true, as was once said about British law, cynically I should add, that “. . . free speech (is) a very good thing as long as it does not cause trouble.” — Geoffrey Robertson QC, who made the remark in Freedom of the Individual and the Law, seventh edition, Penguin Books, who now presides over the International Criminal Court, Sierra Leone.

Free speech must always be “a very good thing” whether or not it causes trouble. I do not believe the media can do its job properly without causing trouble. Not infrequently, though, the trouble it causes lands it in hot water.

Freedom of the media, as an important aspect of democracy, must never be used as an excuse for irresponsible reporting. Press freedom, like all other rights, is subject to limitation. It is the task of the courts, in interpreting the law and the Bill of Rights, to articulate the parameters of this right.

The media, like all other public and private institutions, must be mindful of these boundaries. In defining the boundaries, the courts are not antagonistic to press freedom. Rather, the two institutions are complementary to one another; working together to ensure the delicate balancing act that is often required to maintain harmony in a democratic state.

Both institutions are required to do their work competently and to exercise the greatest care in the performance of their tasks at all times. This is a heavy responsibility, but these attributes are necessary in order to enable them to be of the greatest benefit to our young nation and also to ensure that the devastating effects that could result from the misuse of the potent power that each possesses is avoided.

Awareness of this potent power will make us careful how we use our tools, not to damage and destroy, but to build and to heal. We should never lose sight of the context in which we carry out our functions as well as the people who are the consumers of our services.

Rich and poor, powerful and weak, strong and vulnerable, they are the true beneficiaries of the fruits of democracy which we are called upon to strengthen. Both institutions must always strive to give the public access to the benefits of the Constitution and the Bill of Rights. For journalists, there is a whole world out there and the opportunity to make a difference — to improve the quality of the information that the public receives; to challenge injustice, bureaucratic fiat or judicial indifference wherever it raises its head; and to do so in an engaging fashion.

Cases heard by the courts may be dull, but they are terribly important. In the Constitutional Court we are constantly seeking solutions to difficult issues which touch the lives of many people in this country. In the space of 12 years, our constitution has become a dominant feature of our lives.

It is the function of the court to lay the foundations of a new jurisprudence. We deal with concepts such as equality, human dignity, freedom, security of the person, the rights of children, labour rights, rights to a fair trial, welfare rights, rights to shelter, healthcare, prisoners’ voting rights, issues affecting immigrants and so on.

Some of our hearings catch the public imagination but others enjoy no publicity at all. They are however all important beyond the interests  of the litigants themselves. They constitute an authoritative interpretation of rights and constitutional provisions.

Left to the court alone, these important decisions would never reach all corners of South Africa, as they should.

Thus many people who could benefit from this knowledge would remain in the dark about what the constitution means to them. The general public is, therefore, largely dependent upon the resourcefulness of the media.

If we are to see information as a tool for greater achievements and the advancement of a culture of rights, we should be seeking to improve the competence of our reporting, in particular court reporting. This is what this book seeks to do.

And that is a great contribution to fulfilling a vision for this country that our constitution embodies, that is the values of equality, human dignity, freedom and the advancement of human rights. I accordingly congratulate you all, the creators of the handbook as well as those who will use it for this initiative.

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