Leave Judge Masipa alone

I have little interest in the Oscar Pistorius trial. I empathise with the loss of, and damage to, life as a result of Pistorius’s actions. This case has, unfortunately, been given more attention than it should. The fact that the victim, and the accused, are well-known, white, moneyed, and privileged, has resulted in this case being treated so exceptionally that the brutal violence that (mostly black) women face on a daily basis in South Africa has, yet again, largely been ignored. The discrepancy in societal and media interest in this unfortunate affair concerns me. It should act as the basis for critical self-reflection for the country as a whole.

But, that is not what I address here. Neither is the reasoning of Judge Thokozile Masipa’s judgment. The line between dolus eventualis and culpa is a fine one and I am sure that many will address this subject in the weeks and years to come. And, if this matter goes on appeal, as I suspect, then the judgment of the Supreme Court of Appeal, and the Constitutional Court – if it gets that far, will be instructive.

Rather, there are two observations that I have made about the way in which many South Africans have reacted to the learned judge’s findings.

On one hand, many people imply that Judge Masipa found as she did because money changed hands. They are implying that she is corrupt. A friend on Facebook reposted a statement from an anonymously run Gerrie Nel fan page which states as much (“Judge … rumours of bribes are already flying around”). I am mortified that this friend, and many more South Africans, have taken to this page (and others) to vilify the judge, in particular, and our justice system, in general.

On the other hand, many subtle, though equally pernicious, imputations have also been made about Masipa’s competence because she is either a female, black, or both. The pointed whisperings about her competence – and the alternative-reality suggestions that a white and/or male judge may have found differently (read correctly) – cannot be ignored.

These reactions are deeply problematic and probably reflect more on how damaged our society is than on the learned judge’s reasoning.

Firstly, while many reports indicate that there is a high degree of perceived judicial corruption in South Africa, those same reports (and many others) acknowledge that our courts are independent. Their relationship with the state, and its people, is robust. Additionally, many of these reports do not differentiate between perceived corruption among magistrates, prosecutors, court officials, and judges. They are treated as the same thing. They are not. Irrespective of the features of these reports, which qualify their reliability, it is deeply discomforting that people can casually accuse a high court judge of corruption, without any evidence to support their claim.

Secondly, the racialised and sexualised narrative of the criticism demonstrates just how much our perceptions of competence are. The suggestion that a white and/or male judge would have found differently (again, read “correctly”) and found Pistorius guilty of murder shows how little respect we give to highly qualified black women. It also shows how many who presently decry the finding of culpable homicide would have possibly changed their tune had the demographic of the judge also changed. That otherwise reasonable people can also be sucked into this narrative, and inadvertently peddle it, shows just how damaging racial reductionism is.

Thirdly, many people who have made these comments are, at least, guilty of contempt of court or, at worst, guilty of defamation. I do not believe in legal elitism. Criticism of this judgment should not be the preserve of those who hold a law degree: LLB-holders are capable of being wholly off the mark and non-LLB holders are equally capable of the opposite. But, these highly personalised remarks – which are designed to impugn the integrity of the learned judge – are of little value. They seek to offend rather than develop our jurisprudence.

Indeed, it is appropriate that lawyers and non-lawyers alike are involved in criticising judgments in scholarly and non-scholarly ways. Legitimate criticism has a useful role to play in the development of the law, specifically, and society, in general. But we should be all too careful to filter our emotion when doing so. Not only does it threaten our ability to have a reasoned argument, but it undermines our humaneness too. Given that justice depends on the paradoxical infallibility of humans, getting too carried makes attaining it only that much more difficult.