Decision: Supreme Justices missed the temperament mark by a mile

The Supreme Court used unprecedented terms to express its displeasure against counsel and certain witnesses. The impugned words include hot air, wild goose chase and fool's errand. The use of such terms in the context of a bitterly contested election, anger looming large in the aftermath, left casual observers worried and the Court should have used more circumspection in its use of language bearing in mind the raw emotions that characterised the 2022 presidential elections.

Law Professor Harold Berman in a text first completed in 1964, Law and Language: Effective Symbols of a Community, defined language as a set of symbols for expressing thoughts, or as a mechanism for transmitting information. Language, therefore, has communicative and institutional importance and through words, a judge may exude self-worth and purpose. Judicial decision-making is after-all a solemn enterprise, laden with history and dignifying rituals.

The uncalled-for language by the Supreme Court not only detract from the court's substantive arguments but also fundamentally and materially assails the Constitution, which demands that that court and indeed all judicial officers behave in a manner that hoists the dignity of the office above personal ego and frailties.

Justice is impartial and objective. [iStockphoto]

Judges awe by the weight of intellectual heft and certainly not by wielding the stick of draconian habits that may be read to compromise their impartiality. Justice Dikgang Moseneke, former Deputy Chief Justice of South Africa in his text, All Rise: A Judicial Memoir states that the norm demands that a judge must not appear to be nursing a fixed notion or be seen to be partial. A judge should not allow impression be formed that he or she is partial towards a cause, person or organisation.

The Supreme Court in a liberal democratic setting plays several significant roles; it is the authoritative interpreter of the law, a role that Swedish Professor of Jurisprudence states that requires the court to be in an intermediate position on the institutional map of a democracy based on the rule of law. This fundamental role of a Supreme Court truncates into legal and political dimensions, where in its legal sense, the Supreme Court is the ultimate authority on what constitutes valid law.

Situational awareness

With regards to the political dimension, depending on the intellectual and situational awareness of the Court, the Court will limit and/or expand the operating space of the political actors and their legislative tools. Socially, the Court will impact on constant changes in a society's socio-economic realities. A court hearing and decisions emanating therefrom must be alive of the solemn fact that these are a scarce public amenity with severe outcomes.

The Constitution places overreaching duties on wielders of public power including Justices of the Supreme Court. The Supreme Court is expected to generate works imbued with textured richness and discussion about the Court's jurisprudence should centre around the qualitative aspects, the pulsating vibrancy of intellectual output and not the nature of language used.