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Constitutional Court

Oscar Pistorius and the granting of bail

Feb 19th, 2013
by Pierre De Vos.
149 comments

The circumstances under which a court may grant bail to an accused person charged with a heinous crime are widely misunderstood in South Africa. Although the rules around the granting of bail are relative strict if compared to many other constitutional democracies, a court is not supposed to withhold bail merely in order to punish the accused or to demonstrate disapproval of alleged crime committed by the bail applicant. To do so would amount to a form of detention without trial, which was widely used during in the apartheid era against political opponents of the National Party regime. I fear that many South Africans considering the merits of granting bail to murder accused Oscar Pistorius will lose sight of this important fact.

Section 35 of the Constitution states that every person arrested for allegedly committing a crime has the right to be brought to court (usually within 48 hours after arrest) and “to be released from detention if the interests of justice permit”. As the Constitutional Court explained in the 1999 case of S v Dlamini, S v Dladla and Others; S v Joubert; S v Schietekat, the question of whether it would be in the interest of justice to grant bail will focus “primarily on securing the attendance of the accused at trial and on preventing the accused from interfering with the proper investigation and prosecution of the case”. The Court then continued:

The broad policy considerations contemplated by the “interests of justice” test … can legitimately include the risk that the detainee will endanger a particular individual or the public at large. Less obviously, but nonetheless constitutionally acceptably, a risk that the detainee will commit a fairly serious offence can be taken into account. The important proviso throughout is that there has to be a likelihood, i.e. a probability, that such risk will materialise. A possibility or suspicion will not suffice. At the same time, a finding that there is indeed such a likelihood is no more than a factor, to be weighed with all others, in deciding what the interests of justice are.

In a bail application the enquiry is not primarily concerned with the question of the guilt of the accused. The focus at the bail stage is to decide whether the interest of justice permits the release of the accused pending trial. Bail will usually be denied to protect the investigation and prosecution of the case and to protect society against the possible future life threatening criminal acts of an accused.

The bail provisions contained in section 60 of the Criminal Procedure Act must be interpreted and applied with reference to these human rights based policy considerations. It is not clear that our courts always make decisions on bail within the framework of these human rights centred policy considerations — especially in cases where an accused is poor or does not have legal representation.

Section 60 of the Criminal Procedure Act states that a court can normally refuse bail “in the interest of justice” only where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person; will evade his or her trial; will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or if, in exceptional circumstances, there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

But section 60(11) of the Criminal Procedure Act provides for an exception to this general rule. It states that where an accused is charged with planned or premeditated murder; with the killing of a police officer; with rape related offences; or with robbery with agravating circumstances (so called schedule 6 offences) the court must deny bail unless the accused can prove to the court that “exceptional circumstances exist which in the interests of justice permit his or her release”.  In such cases the National Director of Public Prosecutions (NDPP) can issue a written confirmation that he or she intends charging the accused with one of these schedule 6 offences, which the court considering bail will take as prima facie proof of the charge to be brought against the accused by the Prosecuting Authority.

The bail hearing of Oscar Pistorius is based on this section, but because the NDPP did not issued a note confirming the schedule 6 charge, the court must first decide whether there is a significant likelihood that Pistorius will indeed be charged with “premeditated murder”. This concept of “premeditated murder” is not a legal category found in our general criminal law principles, as no distinction is made at the trial stage of the proceedings between premeditated murder and other forms of murder. The concept is relevant for considering bail and, again, after conviction, can play a role in determining the sentence of the convicted murderer.

Premeditated or planned murder was described as follows by the Cape High Court in the case of S v Raath:

Clearly the concept suggests a deliberate weighing-up of the proposed criminal conduct as opposed to the commission of the crime on the spur of the moment or in unexpected circumstances. There is, however, a broad continuum between the two poles of a murder committed in the heat of the moment and one which had been conceived and planned over months or even years before its execution… Only an examination of all the circumstances surrounding any particular murder, including not least the accused’s state of mind, will allow one to arrive at the conclusion as to whether a particular murder is ‘planned or premeditated’. In such an evaluation the period of time between the accused forming the intent to commit the murder and carrying out this intention is obviously of cardinal importance…

This means that a court is not supposed to apply section 60(11) to a bail hearing where in the absence of a certificate from the NDPP where an accused person is suspected of killing someone else “on the spur of the moment”. Something more is required.

When considering the constitutionality of this section of the Act in the Dlamini case, the Constitutional Court pointed out that the section makes it more difficult but not impossible for a court to grant bail to an accused who will be charged with premeditated murder. The section places “a formal onus” on the accused. This means the accused must actually produce evidence of “exceptional circumstances” and cannot merely rely on the alleged weaknesses in the evidence made by the state during the bail hearing.

However, the Constitutional Court, in finding that this provision was not unconstitutional, watered down its application by watering down the meaning of “exceptional circumstances”. The onus still rests on the accused. But the Court said that the subsection does not require the accused to provide evidence of circumstances “above and beyond” those factors listed above: factors such as whether the accused will threaten the safety of the public; will pose a flight risk or will pose a risk to the investigation by, say, interfering with witnesses.

As the Constitutional Court explained in the Dlamini case, an accused charged with a schedule 6 offence could establish that “exceptional circumstances” exist to grant bail by showing that “there are exceptional circumstances relating to the his or her emotional condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case”. For example, continued the Court:

an otherwise dependable man charged with consensual sexual intercourse with a fifteen year old girl, and who has a minor previous conviction dating back many years, would technically fall within the ambit of sub-s (11)(a). Yet a prudent judicial officer could find those circumstances sufficiently exceptional to warrant bail provided there were no other factors adverse to the grant.

Applying these factors to a question of whether bail should be granted to an accused charged with premeditated murder, the question is not whether – based on the arguments presented by the state and the counter arguments presented by the legal representative of the accused – a court might have doubt about the innocence of the accused. The probability that Pistorius is either guilty or innocent is therefore not of primary importance in the considering whether he should be granted bail.

What is of primary importance is whether his legal representative had provided evidence of exceptional circumstances that would demonstrate to the court that Pistorius had not been involved in similar crimes in the past, that he does not pose a flight risk or a threat to other members of the public and that he will not interfere with the investigation. If they had shown this, Pistorius should be granted bail.

As is often the case when decisions about bail are made, the public (and it must be said, sometimes also the presiding officer) conflate their abhorrence of the alleged criminal act or their suspicions about whether the accused might eventually be found guilty of the crime, on the one hand, with the question of whether exceptional circumstances exist to grant bail, on the other. They then insist that bail should have been denied. This is often in conflict with the human rights based interpretation of the relevant section of the Criminal Procedure Act that was provided by the Constitutional Court.

I know this is not a popular point to make. I am also aware that some people might wrongly believe that in pointing this out, I am demonstrating an insufficiently abhorrence of the crime that Pistorius is being charged with. But I would invoke the words of Justice Arthur Chaskalson in S v Makwanyane to answer this conceptually muddled charge:

The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

Judicial appointments: The JSC’s transformation problem

Jan 21st, 2013
by Pierre De Vos.
100 comments

When the Judicial Service Commission (JSC) interviews candidates for appointment to various courts, many of its members seem to be passionate about its mandate to promote transformation within the judiciary. But this appears to be a rather narrow and stunted passion, often focusing on the replacement of old guard (white) patriarchs, with new order (white and black) patriarchs. Changing the racial aesthetics of the judiciary (within limits) often seems to take precedence over the need to change the prevalent legal culture, a culture which allowed most apartheid-era judges to claim that their job was merely to apply the law — no matter how unjust, racist or oppressive — in a “neutral”, “objective” and “impartial” manner. The way in which the JSC is currently dealing with the filling of a vacancy on the Constitutional Court, does nothing to challenge this impression.

The Constitutional Court is an important institution with immense powers. It can declare invalid Acts passed by the democratically elected Parliament. It can also nullify the unlawful or unconstitutional actions performed by the President. The judges are not elected. They earn their legitimacy and authority from the cogency, dynamism and logic of their judgments as well as their ability to marry a certain pragmatic respect for the separation of powers doctrine with a willingness to make principled decisions not swayed by the political pressures exerted on them by unscrupulous politicians and powerful business lobbyists. This is not an easy task, but it is made more difficult when more than 50% of the population is not adequately represented on the Court.

Currently, only two of the eleven judges on the Constitutional Court are women. For a while there were three women on the Court, but in our patriarchal society it is no surprise that this state of affairs did not last.

For the latest appointment the JSC shortlisted five candidates for interviews — all five of them male. The list is not particularly inspiring — except, perhaps, if one is a patriarchal traditionalist with strong views about the purity of the common law and the limited role judges should play in interpreting the Constitution and the law. If on believes that Constitutional Court judges have an important role to play in the promotion of a progressive, transformative, vision of society through their interpretation of the Constitution and their development of the common law and customary law, the shortlist of nominees may not inspire or excite.

Judges Selby Baqwa; Lebotsang Bosielo; and Brian Spilg are all competent lawyers, but none of these judges have (as far as I can tell) demonstrated any progressive streak or deep insight into the ways in which our legal culture could and should be transformed. Advocates Jeremy Gauntlett and Mbuyiseli Madlanga are both good advocates, but I suspect they suffer from the same deficit than the nominated judges: a lack of legal imagination and daring and a lack of enthusiasm for the transformation of the legal system.

Surely, we should appoint more judges who will use their considerable legal skills to develop and mould the common law and customary law legal rules to ensure that these rules do not disproportionately benefit the powerful and the well-connected inside government, in big business and within the traditional leadership structures? Can we really say that a legal system is fair when most people cannot afford to employ the services of even a mediocre lawyer and when most judges do not subject legal rules to sustained ideological questioning, even when these rules often tend to benefit those who can afford to pay R20 million for a Buffalo or for the services of a team of highly paid advocates? And how many of the shortlisted candidates have a deep commitment to feminism and insight into the manner in which seemingly neutral legal rules often promote the interests of men (and male domination) in our society?

Sadly, I am not sure that either the JSC or President Jacob Zuma will take into account such issues during the appointments process. The Constitution prescribes a different process for the appointment of Constitutional Court judges than for the appointment of other High Court or Supreme Court of Appeal (SCA) judges. The JSC has the final say on the appointment of ordinary judges. But when a vacancy occurs on the Constitutional Court, the JSC must conduct interviews and then prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. When there is one vacancy — as there is now — the JSC must therefore submit a list of four names to the President. The President can then appoint one of the four candidates nominated by the JSC after consulting the Chief Justice and the leaders of parties represented in the National Assembly.

During the previous round of appointments, the list of four names included one excellent woman candidate. However, President Zuma appointed a (legally) more conservative male above a (legally) more progressive woman candidate. Not that this came as a surprise: the President was merely exercising his political discretion in accordance with his own ideological disposition, choosing a male judge that would not push for radical legal transformation above a female judge who might have been slightly more progressive.

I am, of course, not arguing that women candidates for appointment to the judiciary will always be more progressive or more prepared to pursue a vigorous transformative agenda than male judges. Just as Margaret Thatcher had shown that a woman Prime Minister could be even more reactionary and bigoted than her male contemporaries, so the extra curial writing of judge Carol Lewis have demonstrated that a female judge on the SCA will not necessarily be more enthusiastic about judicial transformation (in either the narrow or broader sense) than her male counterparts.

There are two issues at stake here. The first is about the constitutional injunction that when making judicial appointments the need for the judiciary broadly to reflect the racial and gender composition of South Africa should be taken into account. A failure to take heed of the disproportionately small number of women judges on the Constitutional Court, would suggest that — for reasons of retaining patriarchal dominance and privilege — this constitutional injunction is only respected as far as race is concerned. Although the President has the final say on who gets appointed to the Constitutional Court, voters — including all of us who take gender equality seriously — have a right and a duty to criticise the President if he fails to take heed of the imperative of gender transformation on the bench. The second issue relates to the need to appoint judges (male and female, white and black), who are passionate about transforming the legal system to make it more just and equitable, and less in service of the rich and the powerful men in our society.

Given the fact that all five candidates to be interviewed for the one vacancy on the Constitutional Court (left by the departure of Justice Zak Yacoob) are men, the JSC will send a list of 4 male nominees to the President to choose from. The President is, of course, not obliged to appoint anyone from this list of 4 names. He can advise the JSC that some of the nominees are not acceptable and provide excellent and justified reasons for this view, after which the JSC will have to supplement the list.

This means President Zuma can tell the JSC that, given the requirement contained in section 174(2) that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”, the absence of any women on the list is unacceptable. If he did this, the JSC would then have to produce more names that include those of appointable women candidates, of which there are several. But I am not holding my breath.

Of course, why the JSC decided not to re-advertise the Constitutional Court vacancy when it saw that no credible women candidates were nominated, tells another story about the JSC’s lack of commitment to real judicial transformation.

E-tolling judgment illustrates failure of media and citizens

Dec 13th, 2012
by Pierre De Vos.
130 comments

The decision by the North Gauteng High Court to dismiss the application by the Opposition to Urban Tolling Alliance (Outa) to have the decision to implement e-tolling on Gauteng freeways stopped, provides a textbook example of how the media and middle class citizens often fail our democracy. It also serves as a warning that citizens should not turn to the courts in the hope that judges will help them to solve their political problems.

It might well be that e-tolling is not the most cost-effective, fair and efficient way to pay for the major upgrading of urban roads. It might also be that middle class citizens, who will now have to pay tolls every time they speed from Johannesburg to Pretoria in their sports utility vehicles and luxury sedans, will pay more than they would have paid if a different method was implemented to pay for the upgrade. It might even come to light – who knows – that there was some corruption or nepotism involved in the awarding of the e-tolling contract.

But these are not the questions acting Judge Vorster was called upon to answer – and rightly so. Outa could not provide the court with any evidence of corruption. The other questions raised above essentially relate to policy issues, which must be determined through the political process, not the courts.

It is important to remember how this case landed in court in the first place. Back in July 2007 Cabinet approved the implementation of the e-tolling for Gauteng and in October of that year the then Minister of Transport officially announced the launch of the project. As a result of the acceptance by National Cabinet of the toll road scheme, the toll road declarations – eventually attacked in court by Outa – took place.

As the court pointed out rather wryly, the members of Outa were, and probably still are, in favour of the upgrading of the freeway road system in Gauteng. However, it was only when they learnt about the proposed toll tariffs published in the media that “they became bewildered and concerned”. This was almost 5 years after cabinet had approved the upgrade of the roads through the implementation of an e-tolling system.

In my view the important question to ask is why members of the public only became outraged when newspapers splashed alarming news of the tariffs (since reduced) on their front pages. Somehow, no one – including, as far as I can tell, no one in the media – had thought of asking back in 2007 whether e-tolling was a good idea and how high the tariffs might have to be in order to recover the huge expense incurred by making Gauteng’s roads pretty for Sepp Blatter and his fellow raiders from Fifa.

Is this a failure of the media alone? After all, at the time the media failed to ask the most difficult questions and failed to seek answers in order to keep the public informed. The cabinet announcement of a toll financed road upgrade was never going to make for a sexy story in the absence of hard investigative work into how much the whole thing was going to cost, who was going to pay and who was going to benefit.

But maybe the (mostly) middle class citizens, who ignored the original announcement as well as the physical evidence of gantries being built all across the newly upgraded freeways of Gauteng, cannot escape responsibility. Surely, if citizens want the government to listen to them, then they have to remain vigilant about government decisions affecting them and must be prepared to organise against such plans from an early stage? As the Right2Know campaign has shown, public campaigns of this nature can have a huge impact, but it requires hard work and vigilance. In short it requires active citizens, ready to get involved and to get their hands dirty – even before it is apparent that they would be directly affected by a policy.

Sadly, when the original decision was taken to impose e-tolls on Gauteng freeways, middle class citizens were too busy doing other things to organise opposition to the idea in order to place political pressure on the Gauteng and National Government to stop what some must surely now think was an ill-conceived and expensive project. Too busy enjoying the bread and circus provided by the media (thanks to Polokwane, Julius Malema and Caster Semenya, amongst others), citizens did nothing until they realised how much it will cost them personally – and only then did they immediately ran to the courts. As if the courts – and not active citizens – are the ones who are supposed to stop unpopular policy decisions and to punish a government politically for making unwise or unpopular decisions.

When Outa finally approached the court to try and stop the implementation of e-tolling, it relied largely on the alleged failure of the government to take into account the costs of the upgrade as well the cost of operating the e-tolling system, arguing that given the cost, the decision to implement it was unreasonable and hence invalid.

The Constitutional Court drove a stake through the heart of this argument when it overturned the interim interdict against the introduction of e-tolling. In that judgment the Constitutional Court noted that the main thrust of Outa’s application was the alleged unreasonableness of the decision to proclaim the toll roads and then remarked:

But unreasonable compared to what? The premise of the unreasonableness argument is that funding by way of tolling is unreasonable because there are better funding alternatives available, particularly fuel levies. But that premise is fatally flawed… [SANRAL] has to make its decision within the framework of Government policy. That policy excludes funding alternatives other than tolling. It is unchallenged on review… [but the]… making of the policy falls within the proper preserve of the executive and was, on the papers before the Court, perfectly lawful… The Courts in this country do not determine what kind of funding should be used for infrastructural funding of roads and who should bear the brunt of that cost. The remedy in that regard lies in the political process.

That is why everybody agreed before the High Court that the costs of tolling, the merits of using tolls as a means to finance the upgrade and the proposed e-toll tariffs which would be necessary to finance the scheme, were irrelevant considerations for purposes of the High Court review. As the Constitutional Court had pointed out, those considerations fell within the preserve of executive government and therefore outside the jurisdiction of the courts.

Outa therefore had to argue, first, that SANRAL was required by law to include basic information relating to the capital costs involved, the costs of collecting toll and the suggested tariff of toll which is envisaged in its submissions to the Minister, which it did not do. Without this information, Outa argued, there could be no proper public consultation as required by the relevant legislation.

The court rejected this argument, pointing out that the section 27(4) of the SANRAL Act clearly requires public consultation on “the physical aspects of the proposed toll road declaration and particularly the situation of the proposed toll plazas” – not on the cost of the project or the tariffs to be charged. Although the Court did not mention it, this provision in the Act makes sense, as the tariffs to be charged for tolls is an operational decision, while decisions on the route of the toll road as well as the placing of gantries had the potential to influence the property prices of certain homeowners and would require broader consultation with those whose interests would be directly threatened by the decision.

Outa also argued, second, that adequate notice of the tolling system was not given to the public, making real public participation in the decision impossible. But the court pointed out that the proposed toll road declarations were published in the Government Gazette and in newspapers circulating in Gauteng. However, Outa suggested this was insufficient and that particular notices should have been put up adjacent to the roads in question. The judge also rejected this argument, pointing out that SANRAL was required to act fairly and that this requirement was met when it published the requisite information in the media. One assumes active citizens are aware of such notices.

The publications in the Government Gazette and newspapers circulating in the areas in question were clearly adequate to inform interested persons of the proposed toll declaration. The argument that such notification was inadequate and therefore unfair, rests on the erroneous assumption that each and every user of the proposed toll roads had a right to be informed, given the importance of knowledge of the proposed expenditure of the scheme and the proposed tariffs that could be levied in due course.

I suspect that some citizens are going to complain bitterly about the outcome of this judgment. Some might even channel their inner Gwede Mantashe and question the integrity of the presiding judge. Some might argue that the judge hid behind the separation of powers doctrine to abdicate his judicial responsibilities or to make a career-advancing ruling that would please the ANC government.

These mutterings will be irresponsible and dangerous. One criticises the substance of a judgment and the nature of the statements made by a judge; one does not impugn a judge’s integrity merely because one does not like the outcome of one of his or her judgments. Questioning the integrity of the judge would also be ill-informed and based on the lazy assumption that judges should interfere in policy decisions even when citizens failed to do their bit to block such decisions because they were too busy making money or planning their next oversees holiday. It is the media and ordinary citizens who failed our democracy in this case – not our courts.

Why Simelane was never appointed and cannot be dismissed

Dec 5th, 2012
by Pierre De Vos.
75 comments

When a court declares an appointment invalid, it is as if there was no appointment to start with. Why, then, do we read in the papers about the “reluctance” of President Jacob Zuma to announce Mr. Menzi Simelane’s “dismissal” as National Director of Public Prosecutions (NDPP)? And why is there talk of a golden handshake for Simelane?

It is unclear whether news reports are true that Menzi Simelane has been “quietly removed from the National Prosecuting Authority”, but that negotiations are still under way about the termination of Simelane’s employment contract. It is also unclear whether Simelane will be paid “millions of rand” to terminate his contract, as speculated in the media.

We do know that Justice Department spokesman, Mthunzi Mhaga said: “Simelane’s contractual issue is being addressed. Processes are currently under way to bring it to finality.” These comments are perplexing, to say the least. Given the fact that there was no valid contract to start with, it is unclear what contractual issues there could possibly be to sort out.

Earlier this year the Constitutional Court found that the decision by President Jacob Zuma to appoint Menzi Simelane as NDPP was irrational and hence invalid. The Court explicitly rejected the contention by the Minister of Justice that Mr Simelane should stay in office and that the matter should be referred back to the President for reconsideration.

The Court affirmed that its decision had retrospective effect and that Mr Simelane was therefore never legally appointed as NDPP. If the Constitutional Court had not explicitly mitigated the potential disruptive effects of this declaration of invalidity by ruling that all decisions taken by Simelane would not be invalid merely because his appointment was invalid, it would have been as if he had never set foot in his offices as head of the Prosecuting Authority. It would have been as if Mr Gupta or Shaik had made all decision as if they were the NDPP (one assumes, of course, that they have not done so), despite having no authority to do so.

But somehow the bright sparks at the Department of Justice seem to think they can ignore the decision of the Constitutional Court and can revive an invalid appointment by invoking an underlying contract entered into when the President unlawfully appointed Simelane as NDPP. But surely, where the original appointment was illegal and invalid, no valid employment contract arose?

As with all contracts in our law, parties cannot enter into illegal contracts of employment. In Georgieva Deyanova vs Craighall Spar an employee could not demonstrate to an employer that she had the legal right to be employed in South Africa.  The employer informed the applicant that it could not employ her because of her failure to provide proof of her legal status. The employee approached the CCMA, claiming that she had been unfairly dismissed. In line with three other decisions, the commissioner found the CCMA did not have jurisdiction as the contract of employment was void ab initio (to be treated as invalid from the outset.

Similarly, Simelane’s employment as NDPP was declared void ab initio by the Constitutional Court, and there is no contract to negotiate about and no right to any golden handshake flowing from a contract that does not exist. Any payment made to Mr Simelane would therefore be unlawful and tantamount to corruption.

To hold otherwise would be legally wrong and would lead to absurd consequences. As an example, imagine a local hospital appoints Mr. X as a heart surgeon. They never actually checked whether he is a heart surgeon and it transpires that he is a motor mechanic who merely pretended to be a heart surgeon. The original appointment would be invalid (no motor mechanic can legally do open heart surgery) and no court is going to find that Mr. X has a claim for a golden handshake because his invalid appointment has now been discovered. This would be even more true if the Constitutional Court had found that the original appointment was unlawful and invalid.

There is another reason why this must be the only possible interpretation of the Constitutional Court judgment. If the appointment was not invalid from the outset and if Simelane was somehow still considered to be employed by the state – despite an explicit ruling by the highest court in the land that he was not so employed – then the President would not be legally able to terminate his contract and dismiss him either.

This is because section 12 of the National Prosecuting Authority Act states that the NDPP can only be removed from office after an enquiry into his fitness to hold office was instituted by the President, and then only once the enquiry had concluded that he should be dismissed. Moreover the removal of the NDPP can only be formalised once the President has accepted the recommendations of the enquiry he instituted and after this was confirmed by the National Assembly.

None of this has happened, and with good reason. As the original appointment was invalid from the start and as no valid employment contract came into existence, it is impossible to dismiss Simelane. One cannot dismiss someone who was never legally appointed.

Mr. Simelane was never validly employed as NDPP. The Constitutional Court confirmed this. Giving him a golden handshake would be almost as scandalous as his orginal appointment as NDPP.

What the vote of no confidence judgment really said

Nov 26th, 2012
by Pierre De Vos.
115 comments

The analysis and reporting by journalists, political commentators and garden variety politicians about court judgments (which they could not possibly have read) are often so spectacularly uninformed or so deceitful, that only the most gullible or sycophantic among us would believe a word of it. The majority of reports and analysis of the recent judgment by Judge Dennis Davis about the refusal of the ANC urgently to schedule a vote of no confidence debate against President Jacob Zuma and his cabinet is a case in point.

After the judgment was delivered, but before the text of the judgment became available, some commentators criticised Judge Davis for supposedly being an ambitious and unprincipled ANC lackey, while others lauded the judgment, ostensibly because it established the principle that the courts cannot order Parliament to adhere to the Constitution. It is surprising, to say the least, that such comments were made by people who could not possibly have read the judgment. So, dear readers, ignore these pontificators. Their comments are nothing but nonsense upon stilts.

The opposition parties asked the court to order the Speaker of the National Assembly to take whatever steps are necessary to ensure that the motion of no confidence is debated on or before 22 November 2012. The court found that the Rules of the National Assembly do not empower the Speaker to do so and that a court could therefore not order the Speaker to do something which the Rules of the Assembly did not entitle the Speaker to do. However, the court did not find that it could never instruct the Speaker (or any other member of the National Assembly) to comply with the Constitution.

Davis found that the Constitution bestows a right on all parties (not only the majority party) to bring a vote of no confidence against the President. This, said the court, “is the very stuff of deliberative democracy”. Quoting from the recent Constitutional Court judgment of Chief Justice Mogoeng in the Ambrosini case, Judge Davis noted that the very nature and composition in the National Assembly renders it pre-eminently suited to fulfil the role of a national forum for debate on whether the President is suitable to continue leading the government.

In 1994 South Africa boldly began its journey from a society based on authority to one predicated upon justification, from diktat to deliberation, arbitrary assertion to rational consideration. While this journey was never expected to be easy, given our fraught and divided past, the ambition of the Constitution was to exercise guidance to the nation, so that it be kept on the indicated path, when intolerance or the temptation to abuse power to suppress the dignity of even a single voice expressing a different perspective, prompted movement from the constitutionally indicated journey.

The right of an elected representative to bring a motion of no confidence in the President is contained in section 102 of the Constitution. This right belongs just as much to a member of an opposition party as it does to a member of the majority party. A transient majority cannot block or delay the discussion of such a motion of no confidence – something the transient majority of ANC members unconstitutionally sought to do in this case.

Currently, the Rules of the National Assembly do not allow for the tabling of a motion of no confidence except on the basis of consensus of all the parties represented in the Programming Committee of the Assembly. This position is incompatible with the Constitution because it allows either the majority or a minority to subvert the right of anyone in Parliament to have a debate on a vote of no confidence in the President as envisaged by section 102 of the Constitution.

The Chief Whip of the ANC first described the motion of no confidence in President Zuma as frivolous and vowed that the ANC majority in the National Assembly would prevent it from being debated. He then made a complete U-turn (although he pretended not to have done so in the hope that we are all morons), stating that the motion was very serious and agreeing that the majority party “will impress” upon Parliament that the debate be scheduled in the week of 22 February 2013.

However, as Davis found, even this altered position of the ANC Chief Whip “proceeds from an incorrect premise” as it “cannot be within the gift of the majority party to decide upon the issue of the timing of this kind of motion.” This means that the decision of the ANC that it would only allow a debate of the motion of no confidence next year was itself not compatible with the Constitution as it was not for the ANC to decide – based on its so called “generosity” – when such a motion should be debated. Despite the embarrassing bluster of the ANC Chief Whip, the debate is urgent and needs to be scheduled as a matter of priority by the National Assembly.

There is an important reason why the timing of a debate of such a motion of no confidence in the President cannot be left to whims of the majority party (or any other party, for that matter). A motion of no confidence in the President of the Republic of South Africa must be inherently urgent as it “raises matters of profound national interest and importance”.

Members of the majority party may well consider that all of these claims are unjustified, indeed outrageous or frivolous. But when political parties, who represent approximately a third of the electorate, decide to initiate a motion, and to seek wider support for the motion on matters of such importance, that too is their right. The public are entitled to hear the debate. The public, in effect, own the national forum, Parliament. It is the body of the citizens of South Africa in that it is comprised of the peoples representatives, and the people are entitled, as citizens of South Africa, to hear what our national representatives have to say about a matter of such pressing importance. Of course, once the debate takes place and reasoned voices across the floor are heard, the majority may well vote the matter down and that would be the end of it.

Although judge Davis does not spell this out, the consequences of his judgment is that the ANC acted unconstitutionally, first, when it decided to block the debate and then, secondly, when it decided to postpone the debate until February next year. The ANC decision robbed voters of the opportunity to listen to (and consider the views expressed during) a debate on the vote of no confidence in the President, treating ordinary citizens with contempt.

Despite this, the court could not order the Speaker to schedule the debate as requested by the opposition. The problem faced by the court in this case was that the Rules of the National Assembly do not currently provide for the necessary deadlock breaking mechanism to ensure that a vote of no confidence is debated urgently – even where the majority party wishes to block the debate or where it wishes to delay the debate to a future date more to its liking. The High Court simply did not have the power to rewrite the Rules of Parliament as the power to determine what processes ought to be followed falls within the constitutional domain of the National Assembly.

Courts exist to police the constitutional boundaries… Where the constitutional boundaries are breached or transgressed, courts have a clear and express role. And must then act without fear or favour. There is a danger in South Africa however of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy, or disputes which clearly carry polycentric consequences beyond the scope of adjudication. In the context of this dispute, judges cannot be expected to dictate to Parliament when and how they should arrange its precise order of business. What courts can do, however, is to say to Parliament: you must operate within a constitutionally compatible framework; you must give content to section 102 of the Constitution; you cannot subvert this expressly formulated idea of a motion of no confidence.  However, how you allow that right to be vindicated, is for you to do, not for the courts to so determine.

Importantly, the judgment found that there was no authority that suggests that the Speaker had some residual power – not provided for in the Constitution – to instruct that a vote of no confidence be debated urgently. The judgment therefore confirms the limits of the power of the Speaker. Where the Rules are clear, the Speaker cannot act outside these Rules. Neither can the court order the Speaker to do so. Whether the Speaker is asked to censure a member of Parliament for implying that the President is corrupt or whether to order the Programming Committee to schedule a debate, the Speaker is bound by the clear rules of the Assembly. No court can give the Speaker powers not bestowed on him by these clear Rules of the Assembly. But the clear Rules themselves can be found to be wanting, in which case – as we shall see – the Constitutional Court can order the National Assembly to fix the Rules.

It is important to note that the court found that debating such a vote is “inherently urgent” and that opposition parties therefore have a constitutional right to have such a motion debated urgently. The court pointed out that a vote of no confidence is “[p]erhaps the most crucial” motion that can be considered by Parliament. It is an essential tenet of the Westminster system that the government possess the confidence of the National Assembly. In other Westminster democracies there is a rule that any motion of a vote of no confidence in the government takes precedence over all other business until disposed of. That is why the Rules should provide for the urgent scheduling of such a vote, regardless of the whims of any political party represented in Parliament. Time should have been found to ensure it takes place expeditiously

The problem here was that the Rules of the Assembly do not currently provide for this. What was required was for the Assembly to craft a special Rule to provide for the tabling of a vote of no confidence as a matter of urgency. It is not desirable that courts make the determination as to when this occurs. But the appropriate court with the requisite jurisdiction can order Parliament to amend its rules to provide for it. The High court was not such a court.

This is because the High Court was bound by section 167(4)(e) of the Constitution, which provides that only the Constitutional Court can decide whether Parliament has failed to fulfil a constitutional obligation. As Parliament may well have failed in this case to fulfil its constitutional obligation because it omitted to provide a Rule which would provide for the urgent tabling of a debate on a vote of no confidence in the Presidency, the Constitutional Court might well be the only appropriate forum to provide a remedy that would truly vindicate the rights of the opposition parties who tabled the motion.

This is why it would be entirely appropriate for the opposition parties to approach the Constitutional Court to order Parliament (not the Speaker) urgently to schedule a debate on a vote of no confidence in the President and to order it to amend its Rules so that the majority party would not in future be able to block or delay the debate of such a motion. I trust that they will indeed approach the Constitutional Court to do so as the decision of the ANC to “allow” the scheduling of the debate for February next year signals that it does not yet understand that it is not within the party’s constitutional power to decide when to schedule such an urgent debate.

When will the JSC begin to take transformation seriously?

Nov 8th, 2012
by Pierre De Vos.
49 comments

I do not hold a brief for Advocate Jeremy Gauntlett, but the reasons provided by the Judicial Service Commission (JSC) for not appointing him as a judge says more about the ideological conservatism and dysfunctionality of the JSC (whose members often subject candidates for judicial appointment to irrelevant or laughably uninformed questions) than it says about Advocate Gauntlett’s suitability for appointment to the bench.

Almost everyone agrees that Gauntlett is a brilliant lawyer – at least in the narrow, technical, sense. But personally I do not think that he would be a very good judge in a country like South Africa where there is a need for the law to be developed and applied in ways that would protect the vulnerable and marginalised against exploitation by the rich and politically powerful (both in business and in government). Given his conservative legal philosophy and his inability to recognise that – like everyone else – his views about legal reasoning and technique are based on ideologically loaded assumptions, I see Gauntlett as a candidate more suitable for appointment to the bench in the Tory governed UK, than in a progressive, constitutional state like South Africa.

It is unclear whether, as a judge, he would enthusiastically develop the (often unjust) common law rules to bring them in line with the demands of the Bill of Rights. Judges who are stubbornly wedded to the fiction of legal clarity and certainty often show a reluctance to develop the common law rules to align them with the values contained in the Bill of Rights. They see such an approach as being too activist and as leading to too much legal uncertainty.

I suspect Gauntlett would be the kind of judge who would want to hide behind old-fashioned formalistic methods of interpretation to shield the common law from needed development. In fact, as far as I can tell, his legal philosophy is closer to that of Chief Justice Mogoeng Mogoeng and recently appointed Constitutional Court judge Ray Zondo than it is to that of progressive lawyers and judges who see legal transformation as something far broader than the need to replace conservative white patriarchal judges with conservative black patriarchal judges.

But because many members on the JSC are spectacularly uninformed and out of their depth, or share the deeply conservative, anti-transformative, agenda of the present Minister of Justice and his government, candidates before the JSC are seldom asked the tough and probing questions that would help us to determine what their broader views on the transformation of the law and legal culture might be and whether they would protect the interests of the vulnerable and marginalized against the powerful and rich (inside and outside government). Instead the JSC often focuses on completely irrelevant factors, asking questions about a candidate’s religion or how often they have ruled against the government - as if there is anything wrong for a High Court judge in a constitutional state based on human dignity, equality and freedom to rule against big business or the government in order to protect the vulnerable, marginalised and poor.

In Gauntlett’s case, the JSC expressed a concern that “he has a ‘short thread’ and that he can be acerbic at times”. While some Commissioners accepted his assurance that as a Judge one is removed from the immediate combative situation that counsel usually find themselves in, others expressed “strong reservations” whether, as part of his attributes, “he has the humility and the appropriate temperament that a Judicial Officer should display”. In short, some JSC members decided not to appoint him because they did not like his guts.

Has anyone ever heard a more ridiculous reason for not appointing a lawyer to the judiciary? Let’s face it, advocates seldom become successful because they are humble servants of the court and lack a sharp tongue. If the JSC is now going to refuse to appoint any senior advocate to the bench because he or she is not dripping with humility and is too combative, then it is going to be hard pressed to find any half decent lawyer to appoint to the bench.

On the face of it, the second reason is slightly more plausible. According to the JSC a “very important consideration” it took into account was the demographic composition of the Western Cape High Court Bench:

It was argued that considering the number of white male Judges in that Court as compared to other races was such that were two white males to be appointed (at that stage the focus was on Advocates Gauntlett SC and Rogers SC) the Commission would be doing violence to the provisions of section 174(2) of the Constitution.

Section 174(2) of the Constitution states that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. There are two important reasons why this provision was included in the Constitution.

First, in order for the judiciary to become more legitimate and more credible in the eyes of ordinary citizens, it was imperative for the judiciary to shed its almost exclusively white and male character. Given the deeply entrenched and pervasive racism and sexism in our society an all-male and exclusively white judiciary would hardly instill confidence with the vast majority of citizens.

Second, we live in a diverse society. Many white male lawyers live a relatively insular middle class life and few would normally be in tune with the lived reality of the vast majority of South Africans. Creating a more diverse bench helps to bring more people of diverse backgrounds and with diverse experiences and opinions into the judiciary and can enhance the quality of justice dispensed by our courts.

Despite these being laudable goals, I find the reasoning of the JSC depressingly narrow-minded and on shaky legal grounds to boot. While there is a need to keep on working at changing the racial and gender composition of the bench, it seems rather absurd to equate judicial transformation solely with the change in the racial and gender composition of the bench. Race and gender should be the starting point, but if one is serious about the transformation of the judiciary, one would have to take into account whether candidates for appointment have embraced the values enshrined in the Constitution.

To do that, members of the JSC would have to be conversant with the basic constitutional issue and would have had to ask candidates about their views on the important constitutional and other legal issues that would give a clear indication of whether a potential appointee will respect the Constitution and whether he or she will hand down judgments that will protect the rights of everyone, but in particular the marginalized and vulnerable in society.

In my opinion a candidate who believes that the Constitutional Court’s affirmative action jurisprudence may be too radical should not be appointed to the bench. Neither should one who is reluctant to use section 39(2) of the Constitution to speed up the transformation of the common law to bring it in line with the “spirit, purport and objects” of the Bill of Rights. Neither would a candidate be suitable if he or she is not eager to protect freedom of expression and access to information or would be willing to endorse censorship aimed at hiding corruption.

Personally, I would be reluctant to appoint a judge who does not support the Constitutional Courts jurisprudence on sexual orientation discrimination, who holds sexist or racist views or who harbours prejudices against people with disabilities. And a candidate who disagrees with recent Constitutional Court jurisprudence on evictions which leans towards placing a duty on municipalities to provide alternative accommodation when large scale evictions from either private or publicly owned land are planned, would not get my vote either.

Section 174(2) requires the JSC to take into account the need for a more racial and gender diverse bench. It does not require the JSC to appoint a candidate with a questionable commitment to some of the broader transformation goals set out in the previous paragraph merely to meet racial quotas.

Surely if the JSC wanted to appoint good judges that would drive the transformation agenda, it would not only look at race (and as an afterthought, gender) when making appointments. It would look for candidates who understand that legal rules often benefit the rich and powerful and often harm the poor and vulnerable, candidates who understand that formal legal rules that are interpreted in a formalistic manner will often not produce a just outcome, candidates that are willing to interpret legislation and develop the common law to make the law ever so slightly more just and equitable.

Once small step for Parliament, one giant leap for Ambrosini

Oct 10th, 2012
by Pierre De Vos.
103 comments

On paper the National Assembly, whose members are democratically elected, is a powerful body. It elects and can fire the President. It is empowered to pass legislation and to hold the members of the executive to account. But because the electoral system allows party leaders to exercise control over individual MPs, the Assembly often acts as a rubber stamp for decisions taken by the executive, turning MPs into glorified messengers for party bosses. A recent judgment by the Constitutional Court may begin to address this problem.

Section 73(2) of the Constitution allows any member of the National Assembly to introduce a Bill in the Assembly – even if that member is not a Cabinet Minister and even if that member belongs to an opposition party. However, the rules of the National Assembly (adopted in 1998) stated that this could only happen if a majority of members of the Assembly had given “permission” to an MP to initiate such legislation. In practice this meant that members of the opposition could never introduce any Bills in the Assembly. All they could do was to criticise the Bills introduced by the relevant Cabinet Minister. Their own legislative proposals had no chance of being debated by the relevant Portfolio Committee in the National Assembly.

In Oriani-Ambrosini v Sisulu the Constitutional Court, in an excellent judgment authored by Chief Justice Mogoeng Mogoeng, declared these rules of the National Assembly unconstitutional. The judgment serves as a reminder that ours is a constitutional democracy “that is designed to ensure that the voiceless are heard”, one in which the “views of the marginalised or the powerless minorities” cannot be suppressed.

Quoting from a previous Constitutional Court judgment, Mogoeng reaffirmed that:

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. . . . The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making.

When individual MPs have the power to initiate legislation and introduce Bills in the National Assembly it provides them with an opportunity “to promote their legislative proposals so that they could be considered properly”. The members of both the majority and minority parties in the Assembly will then be required “to deliberate critically and seriously on legislative proposals and other matters of national importance”. These deliberations will then happen in the relevant Portfolio Committee before the Bill is submitted to the National Assembly for a vote.

There is a good reason for the Constitution’s inclusive approach to democracy. As Justice Mogoeng reminded us:

South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.

This does not mean that the will of the majority party in the Assembly can ultimately be thwarted. The majority party can always vote against a Bill after it had been discussed and debated by the Portfolio Committee. Some might say the right of opposition MPs to introduce their own Bills would therefore be of little more than ceremonial significance. However, as the Constitutional Court pointed out, this is not so as it will give opposition MPs the opportunity to go beyond an obstructionist oppositional role, allowing them to submit constructive proposals of their own about how to solve a particular legislative problem and allowing these proposals to be discussed seriously by the members of the National Assembly.

Our electoral system — which requires us to vote for political parties and not for individual MPs – renders it difficult for voters to hold individual MPs accountable. Unless we join a political party and unless we actively take part in the election processes for the leadership of that party, we have little or no say in who represents us in Parliament and who is elected as our President. This diminishes transparency and accountability in the governance and law-making processes.

Given these limitations, rules of the National Assembly which would make it impossible for individual MPs to have their alternative legislative proposals tabled and discussed by the Assembly diminishes our democracy and robs voters of the opportunity to judge whether they support the legislative proposals of the governing party or of any given opposition party.

Chief Justice Mogoeng emphasised that in providing such alternatives it “allow for a legislative proposal to be debated properly and in a manner that is open to the public, before its fate is decided”. Furthermore:

public participation, so as to cultivate an ‘active, informed and engaged citizenry’, is also facilitated by rules that allow even minority party members, who are not ordinarily represented in Cabinet, to initiate or prepare legislation and introduce a Bill. This is because the public can only properly hold their elected representatives accountable if they are sufficiently informed of the relative merits of issues before the Assembly.

For example, imagine what might have happened if an individual member of the opposition had been allowed to introduce an alternative Protection of State Information Bill into the National Assembly. We would then have had the opportunity to compare this alternative Bill with the Secrecy Bill punted by the securocrats in the government. The relevant Committee would then have had two Bills before it containing different approaches to dealing the protection of state information.

If the version of the Bill introduced by the opposition MP turned out to be frivolous or unworkable, it would have exposed the opposition party to criticism and might have created the impression in the minds of voters that the party is not ready to govern the country. If, however, the Bill provided a workable (but human rights friendly) solution to the problem of how to protect state information, it would have embarrassed the majority party and would have enhanced debate — both in Parliament and by the public — about what is at stake with the passing of the Bill.

Of course, this does not mean the majority party would have changed course and would have ditched the Secrecy Bill in favour of an alternative Bill proposed by Lindiwe Mazibuko. The majority party would remain entitled to make the final decision on which Bill to pass into law — no matter how unpopular or how unwise that Bill might be with the electorate.

But in the long run its MPs would have been forced to engage seriously with an alternative Bill proposed by the opposition. A failure to do so in a serious and competent manner would have run the risk of turning away more informed voters and would have eroded the voting majority of the dominant party. On the other hand, if the MPs of the majority party had managed to show up the Bill proposed by the opposition as frivolous, unworkable or unpopular, the party would have been able to gain more support from voters currently supporting an opposition party or not supporting any party at all.

The judgment will not cure all the ills that beset our democratic Parliament. The culture within political parties, which requires strict party discipline and control of individual MPs by party leaders, are too strong for this. But it is a first small step towards making our democratic Parliament relevant once more.

Taking Pride in the Separation of Powers Without Prejudice

Sep 20th, 2012
by Pierre De Vos.
64 comments

It is a truth universally acknowledged that politicians who are corrupt or inclined to to flout the Constitution and abuse the rights of fellow citizens will, in due course, revert to judge-bashing. South African politicians are no exception. But as the Constitutional Court’s latest e-tolling judgment demonstrates, allegations that our Constitutional Court judges are counter-revolutionaries who do not respect the separation of powers doctrine, are both disconcertingly uninformed and spectacularly wrongheaded.

In the judgment of National Treasury and Others v Opposition to Urban Tolling Alliance (OUTA) and Others, the Constitutional Court overturned the interim interdict granted by the High Court in April, which halted the implementation of e-tolling on Gauteng’s improved highway system. In doing so, the Court – for the umpteenth time – confirmed its appropriate respect for the separation of powers doctrine and for the right of the legislature and executive to make lawful and constitutionally compliant policy choices unhindered by interference by meddlesome judges. Put differently, they once again exposed the Constitutional Court bashers as wearing no clothes.

The main judgment – authored by Deputy Chief Justice Dikgang Moseneke – does not deal with the merits of the case and makes no finding on whether the declaration of the highways as toll roads and the use of the e-tolling method to levy the tolls were irregular and unlawful. Instead, it deals with the application of the normal rules for the granting of an interim interdict aimed at freezing the status quo until such time as the merits of a particular case can be decided by the High Court.

A court could only grant such an interim interdict if an applicant had shown that it had a prima facie right (even if it is open to some doubt); that there was a reasonable apprehension that irreparable and imminent harm would follow if the interdict was not granted; that the balance of convenience favoured the granting of the interdict and that there was no other remedy available to protect the rights of the applicant.

But as the Constitutional Court noted, this test must be applied with due regard to the separation of powers doctrine, which is a “vital tenet of our constitutional democracy”. On the one hand, this means that the Constitution requires courts to ensure that all branches of Government act within the law. On the other, “courts must refrain from entering the exclusive terrain of the Executive and the Legislative branches of Government unless the intrusion is mandated by the Constitution itself”.

In applying the test for the granting of an interim interdict, the Constitutional Court focused on the need to balance the various interests – those of the applicant seeking an interim interdict, on the one hand, and those of the government, on the other – and concluded that the High Court had not taken into account the interests of the government and, hence, to what extent the interdict would intrude into the exclusive terrain of another branch of government.

A court must keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant’s case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm. It is neither prudent nor necessary to define ‘clearest of cases’. However, one important consideration would be whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights. This is not such a case.

Moreover, warned Moseneke, a court must recognise in such a case that it is invited to restrain the exercise of statutory power within the exclusive terrain of the Executive or Legislative branches of government and must carefully assess how and to what extent its interdict will disrupt executive or legislative functions.

A court must carefully consider whether the grant of the temporary restraining order pending a review will cut across or prevent the proper exercise of a power or duty that the law has vested in the authority to be interdicted. Thus courts are obliged to recognise and assess the impact of temporary restraining orders when dealing with those matters pertaining to the best application, operation and dissemination of public resources. What this means is that a court is obliged to ask itself not whether an interim interdict against an authorised state functionary is competent, but rather whether it is constitutionally appropriate to grant the interdict.

The Constitutional Court lambasted the High Court judgment of Prinsloo J in uncharacteristically harsh language for failing to make such an assessment, pointing out that it was unclear that motorists would suffer irreparable harm if the e-tolling went ahead.

First, the money they had already paid for e-tolling could always be claimed back in the court eventually set aside the imposition of e-tolling. Second, the government had decided that motorists would have to pay for the highway upgrade, whether through e-tolling or another mechanism. Motorists will have to bear the financial burden of the road upgrades, which means that “the harm, if any, to be borne by motorists would be relative but never absent”.

In any case, as the Constitutional Court pointed out, the “uncontested evidence” before the court was “that 99% of the burden of tolling will be borne by more affluent road users who make up the first and second quintile of income earners in Gauteng and that public transport users will be exempt from paying tolls. The harm these users will experience will therefore not be of a pressing or acute kind.”

Besides, in as much as there was any harm and inconvenience to motorists, these resulted from a decision by the Executive about the ordering of public resources, “over which the Executive Government disposes and for which it, and it alone, has the public responsibility”. As the duty of determining how public resources are to be allocated “lies in the heartland of Executive Government function and domain” and as there was no “proof of unlawfulness or fraud or corruption”, it was within the exclusive power and the prerogative of the Executive to decide how to finance public projects.

On the other hand, the High Court had also ignored the very real harm that such an interdict would cause the government. For example, the Minister of Finance calculated that the granting of the interim interdict and the delay in implementing tolling has already cost R2.7 billion, 40% of SANRAL’s estimated 2012 toll revenue. SANRAL’s average monthly expenditure on the GFIP will amount to R601 million for the 2012/13 financial year. In the absernce of tolling, the amount has to be funded by the National Treasury. Moreover, Moody’s Investor Services announced a two notch downgrade in SANRAL’s credit-worthiness rating, apparently in response to the granting of the interim interdict.

Despite these very serious consequences – of which the High Court was warned – the High Court did not “mention a word about the submissions of the government” on separation of powers. In fact, commented the Court, it is unclear whether the High Court had considered the submissions of the government at all.

The High Court’s deafening silence on the over-arching consideration of separation of powers, taken together with other factors that go to where the balance of convenience rests, entitles this Court to intervene. It should have held that the prejudice that will confront motorists in Gauteng if the interim interdict is not granted does not exceed the prejudice that the National Executive Government, National Treasury and SANRAL will have to endure should the temporary restraining order be granted.

While careful not to deal with the merits of the case, the judgment does suggest that those who oppose the implementation of e-tolling might have a hard time convincing the Constitutional Court to interfere with what is essentially a policy decision by the Executive. Reading between the lines, one wonders how those opposing the e-tolling decision will be able to convince a court to interfere in a clear policy decision by the executive to use tolling instead of the fuel levy to help pay for the road upgrades. After all, a fuel levy is a regressive tax in that poor people will pay pro-rata more of this tax than they would if tolls were imposed and public transport were excluded from the toll.

This does not mean that e-tolling will go ahead. Political pressure may well force the government to back down – especially if Cosatu – for reasons unknown – decides to continue its opposition to e-tolling, despite the fact that 99% of the burden of e-tolling will fall on the rich.

Some religious beliefs are more equal than others

Sep 10th, 2012
by Pierre De Vos.
99 comments

The South African Human Rights Commission and the Commission for Gender Equality have skirted the issue of whether a version of the Koran that allows men “lightly” to beat their wives propagates violence against women. But the news does not come as a surprise, as our courts have long struggled with the question of how to deal with issues of freedom of religion and conscience. 

According to one interpretation of the Koran, the relevant passage reads: “As to those women on whose part you fear disloyalty and ill conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly)…” The question, I would think, is whether this passage should be banned because it encourages domestic violence against women and whether those who promote it should be charged with incitement to violence.

Quite frankly, it is not entirely clear to me how the Constitutional Court would deal with a request to expunge or suppress this sentence from the Koran or to charge those who disseminate it with incitement.

There are of course many religious beliefs and practices, and many passages in various religious texts that will appear inexplicable, demonstrably false, deeply hurtful, offensive or harmful to any reasonably sane person not blinded by their own cultural and religious commitments. Some passages in the Bible and the Koran may be interpreted as containing hate speech against women and gay men and lesbians in contravention of the Equality Act, while other passages may be interpreted as inciting violence, either directly or indirectly, against women and gay men and lesbians.

For example, how should a court react to Leviticus 18:22 of the Christian Bible which states that homosexuality is an abomination which cannot be condoned under any circumstances? What about Leviticus 25:44, which states that one may possess slaves, both male and female, provided they are purchased from neighbouring nations? What about Exodus 35:2, which states that people working on Sundays should be put to death? What about Rastafarians who insist that partaking in the holy herb of cannabis brought them closer to God? And should a court not ban the widespread practice among Muslims and Jews to cut off a part of a baby boy’s penis shortly after birth?

Section 15(1) of the Constitution guarantees for everyone the right to “freedom of conscience, religion, thought, belief and opinion”. This means one has a right to believe what one wants to believe (no matter how bizarre, uninformed or harmful to others); to bring the good news of one’s beliefs to those around you by shouting it out from the rooftops; and by practicing the tenets of one’s religious beliefs.

However, several laws limit this seemingly expansive right to freedom of religion and conscience. For example, the South African Schools Act prohibits corporal punishment in schools – despite the fact that the Christian Bible says that if one spares the rod one spoils the child. The Drugs Act prohibits the possession and use of cannabis – even by practicing Rastafarians who believe they need to smoke dagga. The Domestic Violence Act prohibits domestic violence against women and children – despite the fact that some interpretations of the Koran permit light beatings of women by their husbands. The Equality Act prohibits anyone from discriminating against anyone on the basis of race, sex, gender, sexual orientation or marital status – despite the prohibition on the ordination of female priests by the Catholic Church and despite the widespread religiously sanctioned discrimination against women and gay men and lesbians.

When a court is called upon to make a decision on whether such limitations are reasonable and justifiable in terms of the limitation clause provided in section 36 of the Bill of Rights, it will have to balance the interests of the state and the community as a whole (including the interests of women and gay men and lesbians), on the one hand, against the interests of the religious community whose beliefs, teachings and practices are being limited, on the other. The more serious the harm being done by the religious beliefs, teachings or practices, in the court’s view, the quicker it will be to endorse the limitation of the religious freedom of those who engage in the harmful religious practices. The more important, believable or true the obnoxious beliefs, teachings or practices are, in the court’s view, the less likely it would be to endorse limitations on those beliefs, teachings or practices.

Courts have said that they will apply the principle of reasonable accommodation when balancing competing interests of the state and of religious communities. But the politics of religion invariably plays a role in making decisions about where to draw the line between accommodating obnoxious or harmful religious beliefs or practices, on the one hand, and endorsing a ban on those beliefs or practices, on the other.

The more powerful and influential a religion, the less likely it is that a court would dare to endorse fundamental restrictions on the major tenets of the religious beliefs, teachings and practices of its adherents. And if the majority of South Africans view the beliefs, teachings and practices of a small and unorganised religion as bizarre, fundamentally false and even dangerous, it is more likely that restrictions on such beliefs and practices would be endorsed by the courts.

Even if the religious beliefs, teachings, superstitions and practices of the majority of believers are sometimes also weird, bigoted and even dangerous, the widespread acceptance of these beliefs and practices by the majority of South Africans would make it difficult for a court to endorse the curtailment of these beliefs and practices – except in the most extreme cases.

As Justice Albie Sachs pointed out in a dissenting decision in Prince v President of the Law Society of the Cape of Good Hope, in which the majority endorsed the complete ban on the possession and use of cannabis, even though it infringed on the right to freedom of religion of Rastafarians:

One cannot imagine in South Africa today any legislative authority passing or sustaining laws which suppressed central beliefs and practices of Christianity, Islam, Hinduism and Judaism. These are well-organised religions, capable of mounting strong lobbies and in a position materially to affect the outcome of elections. They are not driven to seek constitutional protection from the courts. A threat to the freedom of one would be seen as a threat to the freedom of all. The Rastafari, on the other hand, are not only in conflict with the public authorities, they are isolated from mainstream religious groups… Indeed, the Rastafari might receive more tolerance from non-believers to whom all religions are equally strange, than from members of well-established confessions, who might have difficulty in taking the Rastafari belief system seriously as a religion at all.

I would guess it is exactly the politics of religion which caused the Human Rights Commission and the Gender Commission to shy away from a finding that the specific interpretation of the Koran was in conflict with the Domestic Violence Act. If they had endorsed the complaint, large sections of the Christian Bible – as well as practices such as the ban on the ordination of women priests and the widespread religiously mandated discrimination against gay men and lesbians – would have been open to challenge on the basis that it contravenes the Equality Act.

This raises an important question which has recently enjoyed attention in legal journals: to what extent should our law accommodate the bigoted, hurtful or even physically threatening beliefs, teachings and practices of religious groups? Given our Constitution’s commitment to non-discrimination and the protection of human dignity, should the harmful and bigoted beliefs, teachings and practices of some religious groups not yield before the constitutional imperative to protect the dignity of those being humiliated and whose bodily integrity and lives are being endangered by these beliefs, teaching and practices?

As much as I would answer yes to this question, I suspect that our courts would lean in the opposite direction and would accommodate most forms of discrimination, the infringement of human dignity and the promotion of bigotry and sexism – as long as these beliefs and practices are endorsed by one of the powerful and influential religions in our society.

PS: I could have added another consideration our courts would take into account to determine whether the religious belief or practice would be accommodated or not: The further removed the practice or activity from the core business of the religious group, the more likely that our courts would sanction the limitation on that practice or activity. So, while courts in South Africa will almost certainly find that the practice of the Catholic Church to ordain only male priest should be accommodated, despite the ban on unfair discrimination against women, they would be far less likely to do so if the Catholic Church refused to employ a female administrator or organist. Similarly, in the recent case of a fast food owner who prohibited his employees from bringing non-halaal food on the work premises, the court found this practice should not be accommodated and that the employee could bring his non-halaal food from home.

Marikana murder charge withdrawal: the first glimmer of sanity

Sep 3rd, 2012
by Pierre De Vos.
116 comments

The NPA seems to have regained a small sprinkling of sanity – it looks like the charges of murder against 270 protesting Lonmin miners will be withdrawn. Yet a number of so-called experts and scholars are still claiming, although feebly, that the charge could have held water. Let’s not kid ourselves – the law is perfectly clear.

The decision by the National Prosecuting Authority (NPA) preliminary to withdraw charges of murder against 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world, but the decision seems like a glimmer of rationality in a sea of madness.

Yet it is more than surprising that the NPA is maintaining its original decision to charge the miners was legally sound. It’s like a child denying that he ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.

According to these defenders of the NPA, the decision was legally sound because the state would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and lastly that the miners had the intent, in the form of dolus eventualis, by showing the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.

Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?

The leading Criminal Law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime. Burchell and Milton define the doctrine as follows:

Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.

Similarly, the other Criminal Law guru, Snyman, points out in his textbook that:

the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.

This means that the 270 miners could only be convicted of murder if the conduct of one of its members could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met. Given the fact that the police actually shot the 34 miners, it is unclear how the conduct of any of the miners could have cause the death of their comrades.

For a successful prosecution, the state would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who actually killed the miners) could be imputed to them. As none of the miners actually killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police, because none of them were involved in the killing of the 34 miners.

That is why the Constitutional Court confirmed in the Thebus case that a group of people who are not co-perpetrators could only be found guilty of a crime with assistance of the common purpose doctrine if they were aware the crime was being committed and must have intended to make common cause with those who were actually perpetrating the crime. The crime in this case being the killing of 34 miners by the police, it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.

In any case, even if this was not so, and even if the state only had to prove that the miners acted with a common purpose with one another by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, the state would never have been able to prove the involvement of the 270 miners in this common purpose. As the Constitutional Court warned, it is the

duty of every trial court, when applying the doctrine of common purpose, to exercise the utmost circumspection in evaluating the evidence against each accused person. A collective approach to determining the actual conduct or active association of an individual accused has many evidentiary pitfalls. The trial court must seek to determine, in respect of each accused person, the location, timing, sequence, duration, frequency and nature of the conduct alleged to constitute sufficient participation or active association and its relationship, if any, to the criminal result and to all other pre-requisites of guilt. Whether or not active association has been appropriately established will depend upon the factual context of each case.

How would the state ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police? Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the Apartheid years, but those days are long gone. The Constitutional Court decision makes this abundantly clear. More is required now, and the state would never have been able to meet this more stringent evidentiary burden.

But apart from the evidentiary problems, there is still the problem that none of the miners had actually set out to kill their comrades. Neither had any of the miners killed any of their comrades. The police did that.

To overcome this problem, those who argue that the decision to charge the miners with murder was legally plausible say that all the miners could be guilty of murder if one of them had shot at the police because the person who shot at the police could be found guilty of murder and his guilt could be ascribed to all of them via the common purpose doctrine. But this argument conflates the requirements for common purpose with the requirements for intention.

Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.

The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.

But the actions of all 270 miners did not cause the death of the 34 victims. At most, the actions of one miner who shot at the police could arguably be said to have caused the death of others. To hold otherwise would be to criminalise the behaviour of every member of a crowd of protestors, where the behaviour of one of the protestors might have contributed to the death of someone and where that protestor had reasonably foreseen the possibility that his actions would lead to the death. It would, in effect, abolish most of the requirements for criminal liability for anyone taking part in a protest march and would be so invasive not only of the right to protest freely but also of the right to be presumed innocent until proven guilty, that it would undermine the very essence of our Bill of Rights.

Unlike those robbers, all of the 270 miners were not armed with guns. They had not all taken part in a shooting match with the police. They were not co-perpetrators going out to overpower the police. Arguably, one of those in their midst had a gun and shot at the police. They could therefore not have been guilty of murder because they had no intention to kill their comrades. To hold otherwise would be to use the common purpose doctrine in a situation for which it has not been designed and for which has not (and never will be) approved by our courts.

In any case, even if this was not so, no court in South Africa is ever going to find that the miners should reasonably have foreseen the possibility that the police would start shooting at them with live ammunition and would kill 34 of their comrades because one among them had a firearm.

We live in a democracy. We have a right to expect the police to obey the law and use minimum force, as they are required to do by the Police Act. We cannot and should not ever accept that it is reasonable to foresee that the police would use maximum force and would shoot and kill 34 protestors because one of them happened to have been armed with a gun. For a court to hold otherwise would be for it to hold that it is reasonable for the police at best to be untrained, bumbling, and bizarrely incompetent or, at worst, to be malicious, vengeful, law-breaking thugs.

It is a pity that some in the NPA seem to have forgotten (or might never have noticed) that we indeed live in a democracy now, and that we can reasonably expect the police to obey the law.

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