Constitutional Court

What we talk about when we talk about transformation

Aug 29th, 2011

“Transformation” has become one of the most used but least examined words in our political discourse. It is a word often bandied about by people in a way that suggests a rather narrow understanding of the word – as if transformation is about replacing reactionary middle aged white patriarchs with reactionary middle aged black patriarchs. If this is what we mean by “transformation”, then we do not understand the word as it has been developed by the Constitutional Court and academics.

We are then also demonstrating that we have a rather narrow and less than inspiring imagination and have little ambition to fundamentally change the nature of power relations in our country away from an authoritarian apartheid past to a more inclusive and egalitarian future.

This does not mean that transformation – even in the constitutional sense – is not a complex and sometimes contested term. We might not all agree on the exact nature of the end goal of transformation, but we must surely agree that transformation cannot mean a harking back to the values and beliefs held dear by those who governed the apartheid state or acted as their hand-maidens. If we were to take the notion of transformation seriously, we cannot use it to mean the opposite of what it was intended to mean.

Thus, even though Deputy Chief Justice Dikgang Moseneke once remarked that ”the meaning of transformation in juridical terms is as highly contested as it is difficult to formulate,” support for transformation must surely mean that we understand that patterns of discrimination, disadvantage and harm are still perpetuated by the way in which society was structured by and during apartheid and remains structured – to some degree – even today. No wonder that in the context of talking about a transformative constitution, former Chief Justice Pius Langa approvingly quoted the following passage dealing with the need for transformation:

[Transformation] requires a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.

This means that one cannot credibly support any notion of transformation while opposing equality for all social groups regardless of their race, gender, religion or sexual orientation. Belonging to an organisation which promotes hatred of individuals based on their race, gender, religion or sexual orientation or which propagates the idea that people are not as worthy of respect and concern as others because of such attributes (and hence have to be forced to change who they are as human beings to be accepted and respected by society), would mean that one cannot be viewed as a supporter of transformation. Rather one, must be viewed as being anti-transformation.

Former Chief Justice Langa also pointed out that transformation – in the constitutional sense – requires the establishment of a culture of justification, “a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force of its command. The new order must be a community built on persuasion, not coercion”.

Thus a person who fails to justify decisions – especially controversial decisions – taken as a politician or a judge, or a person who tries to silence those who disagrees with him or her by using ad hominem attacks against those critics and opponents (claiming that the opponents are yearning for apartheid, hate the President or the Premier, is plotting against the opposition, is a deployed cadre, or do not support transformation), is not a person who can be said to have embraced the ideal of transformation as embodied by the Constitution. As Chief Justice Langa said:

The Constitution demands that all decisions be capable of being substantively defended in terms of the rights and values that it enshrines. It is no longer sufficient for judges to rely on the say-so of parliament or technical readings of legislation as providing justifications for their decisions. Under a transformative constitution judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values.

Where judges, politicians and those who take part in the public discourse, fail to provide cogent reasons for their arguments, instead, thrashing their opponents on completely spurious grounds by questioning their right to speak or to be heard, then such judges, politicians and debaters are opponents of transformation – not supporters of it.

But, credible support for a transformative vision of the Constitution requires us to do even more. As Chief Justice Langa remarked, this approach to transformative constitutionalism requires us to view the law differently from the way it used to be viewed by the supporters of apartheid and by the legal conservatives who are – alas – still very much with us and among us (in University lecture halls, in law firms, at the Bar and on the Bench). This is because the transformative vision of the constitution requires an acceptance of the politics of law.

There is no longer place for assertions that the law can be kept isolated from politics. While they are not the same, they are inherently and necessarily linked. At the same time, transformative adjudication requires judges to acknowledge the effect of what has been referred to elsewhere as the ‘personal, intellectual, moral or intellectual preconceptions on their decision-making. We all enter any decision with our own baggage, both on technical legal issues and on broader social issues. While the policy under apartheid legal culture was to deny these influences on decision-making, our constitutional legal culture requires that we expressly accept and embrace the role that our own beliefs, opinions and ideas play in our decisions. This is vital if respect for court decisions is to flow from the honesty and cogency of the reasons given for them rather than the authority with which they are given.

This means that we have to accept that the beliefs, values, and history of a judge will be important for the way in which she or he does his or her job and that these factors will play a role in the interpretation and application of the Constitution and of other law.

That is why it will always be important and relevant to ask whether a judicial candidate belonged to the Broederbond or some other secret organisation; whether a candidate opposed apartheid or defended the policies of the apartheid state or of an apartheid Bantustan; whether the candidate has demonstrated a commitment to the values enshrined in the Constitution by word and deed; whether the candidate belongs to a racist, sexist or homophobic organisation; whether the prospective judicial candidate has demonstrated an appreciation of the need to persuade others through reasoned debate by providing reasons for a decision and by engaging in a measured and logical manner with opponents.

For all the above reasons the discussions on the suitability of appointing Justice Mogoeng Mogoeng as Chief Justice is important. It helps to remind us that “transformation” is not only about replacing white faces with black faces (although changing the racial and gender composition of the bench is important) - it is also about the values and beliefs; about what is best for all South Africans, for the poor, for women, for religious minorities, for gays and lesbians, for people living with HIV and people living in rural areas who are often being subjugated by patriarchal chiefs.

For those who wish to run away from the transformative vision of the Constitution and those who actively oppose transformation, the nomination of Justice Mogoeng will come as a godsend. Just to remind us why Justice Mogoeng appears to be an anti-transformation judge, here are some of the concerns raised about him:

The National Association of Democratic Lawyers claims that, in 1988, Mogoeng pushed for a convicted man, whose legal team did not represent him properly, to be executed in the Bophuthatswana Supreme Court and that this happened while Mogoeng was a prosecutor serving a Bantustan government;
The Johannesburg Bar Council criticised Mogoeng for not giving reasons for dissenting when other Constitutional Court judges ruled that a person could not be defamed by being a labelled a homosexual. This would seem to indicate a prejudicial attitude towards the gay community, the bar council said;
Civil society organisations such as Section27, the Lesbian and Gay Equality Project, the Sonke Gender Justice Network, the Tshwaranang Legal Advocacy Centre and the Treatment Action Campaign have lodged submission with the Judicial Service Commission (JSC) about Mogoeng’s nomination, questioning his approach to gender-based issues;
City Press reported that Mogoeng is a counsellor of Winners’ Chapel International, Johannesburg. The church claims to cure “deviations” such as homosexuality by prayer and counselling and this means Mogoeng is a member of an organisation that discriminates against a social group.

Now, if one sees transformation only as a race issue and if one is opposed to the restructuring of South African society along more egalitarian and humane lines, then one might well dismiss these concerns. That is why the “nomination” of Justice Mogoeng has been defended by some - usually by attacking the motives of those who have expressed these concerns, and by trying to discredit and silence those who raise concerns about the nominees transformation credentials by absurdly suggesting that raising questions is anti-transformative in itself.

For me, whether one is prepared to consider these concerns or not says much about one’s politics and whether one supports a progressive or a reactionary vision for our country. This does not mean that I am suggesting those who support justice Mogoeng’s nomination has no credibility and should have their views dismissed out of hand. I am merely claiming that they cannot pretend to be progressive or to speak in support of a progressive cause.

Many South Africans are deeply conservative or even reactionary in their politics – as regular posts by contributors to this Blog demonstrate – and it is important that their voices are heard. But when engaging in debate, they should not try and mislead the public by claiming they are progressive when, instead, they are seemingly yearning for a society that (apart from the issue of race) looks quite similar to the closed, patriarchal, socially reactionary and authoritarian society we suffered under during the apartheid era.

Meanwhile justice Mogoeng will have the opportunity to respond to the sustained criticism and to questions about his fitness to lead the South African judiciary for the next ten years when he appears before the Judicial Service Commission on Saturday. Whether he lashes out at his critics in a desperate attempt to evade scrutiny and be held accountable; whether he evades answering difficult questions by playing the court jester; or whether he commits himself to a truly transformative constitutional project will determine whether he regains some legitimacy and public confidence in his abilities or whether he completely destroys trust in himself and in the judiciary which he might be appointed to lead.

On the right to property

Aug 25th, 2011

by Pierre De Vos.

128 comments

Section 25 of the South African Constitution strikes a delicate balance between the interest of existing property owners and the interests of society as a whole. Because property is a social good, because the majority of South Africans were denied the right to acquire property and because many South Africans were dispossessed of their property during the colonial and apartheid eras, section 25 of the Constitution makes it clear that expropriation of property is permissible to effect land redistribution or to achieve some other public purpose or for the public interest.

But because many property owners use their land productively, paid market value for the property, owe money on bonds taken out to pay for such property or need access to property for housing purposes, section 25 prohibits the arbitrary deprivation of property as well as the expropriation of property without payment of just and equitable compensation which has either been agreed upon or which has been decided by a court of law.

Like other rights in the Bill of Rights, property rights are therefore not absolute. But what happens if the state needs to expropriate a persons property for the purpose of either land reform or for some other public purpose like building a road or a dam, but the property owner refuses to agree on the selling price at which the property is to be expropriated.

Currently, the provisions of the Expropriation Act – an Act which was adopted by the apartheid government — states that the amount of compensation and the time and manner of payment need not be determined before expropriation takes effect. Transfer of ownership and possession of the affected property may therefore take place before that determination. The obligation to pay compensation is a condition of expropriation, but not a prerequisite for its operation.

In other words, the law as it stands does not require the state to follow a “willing-buyer willing-seller” policy and the state may expropriate property even when the seller has not yet agreed to sell or, indeed, is refusing to sell at the price offered by the state — provided that a seller may always approach a court who has the final say on the appropriate selling price.

Today the Constitutional Court, in the case of Haffejee NO and Another v Ethekwini Municipality, handed down judgment in a case in which it had to decide whether the provisions of the Act which allows for expropriation (even before a price has been agreed upon by the parties or the court has made a final determination on the price) is constitutionally valid. The constitutionality of other aspects of the Expropriation Act was not challenged, so the judgment today deals with a fairly narrow legal issue.

The court, in a unanimous judgment authored by justice Johan Froneman, pointed out that the starting point for constitutional analysis, when considering any challenge under section 25 for the infringement of property rights, must be section 25(1). The interpretation of the section must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. International law must be considered and foreign law may be considered and pre-constitutional expropriation law must be approached circumspectly. The historical context in which the property clause came into existence should also be kept in mind when determining the scope of section 25.

The court pointed out that allowing compensation to be fixed only after expropriation has occurred “burdens the property owner and triggers repellent memories of pre-constitutional arbitrary dispossessions”. At the same time, making the fixing of an expropriation price a pre-condition for expropriation would burden the State unduly. After analysing the wording of section 25, the Court decided that the latter consideration should weigh more heavily than the former. It thus found that the challenged provision of the Expropriation Act complied with the requirements of section 25 and summarised the findings of the court as follows:

(a) The provisions of section 25(2)(b) do not require that the amount of compensation and the time and manner of payment must always be determined by agreement or by the court before expropriation under section 25(2);

(b) Generally the determination of compensation, in accordance with the provisions of section 25(3), before expropriation will be just and equitable;

(c) In those cases where compensation must be determined after expropriation, this must be done as soon as reasonably possible, in accordance with the provisions of section 25(3);

(d) Eviction following expropriation may not take place unless agreed upon between the parties to the expropriation or in the absence of agreement, under court supervision; and

(e) In disputed cases of eviction the courts must grant orders that ensure just and equitable outcomes in accordance with the provisions of sections 25(3) and 26(3) of the Constitution.

In this case, the owners of the property to be expropriated rejected an offer to expropriate the property at the market value of that property. The property in dispute originally formed part of a larger property, which had been earmarked for expropriation by the Municipality for the purposes of a canalisation programme. Its objective was to minimise the effects of flooding of the river. By refusing the offer of a market related price, the owners of the property were obviously hampering the implementation of this programme.

The case did not deal with the question of what would constitute a just and equitable price for the property. In cases where a property owner fails to agree on the selling price, a court will have to determine the selling price taking into account all the relevant circumstances. However the judgment confirms that a property owner would not be able to delay the expropriation of property indefinitely or for a very long time by refusing to accept a reasonable offer for that property.

As the principles quoted above demonstrate, the court was nevertheless aware that a property owner needed protection to prevent unreasonable delays in the payment of the expropriation price and to prevent unreasonable evictions from the property. A court will always have the final say in such matters to ensure that the property owner whose property is expropriated is protected from abuse.

The judgment also reminds us that the debate about the need for amendments to the Constitution to speed up land reform is not informed by a proper understanding of the relevant constitutional provision. An amendment would only be necessary if the principle requiring just and equitable compensation for expropriated property is to be abolished, something which very few people have suggested.

A shallow argument not entirely based on the facts

Aug 24th, 2011

by Pierre De Vos.

64 comments

The FW de Klerk Foundation’s Executive Director, Dave Steward, has responded to a previous post on this Blog in which I argued that the imposition of a wealth tax would probably be constitutionally valid and criticised the Foundation for stating that our Constitution prohibits laws that distinguish between people based on race. In the interest of open and frank debate I posted the reply in the Seminar Room and I invite readers to study this response.

Unfortunately the response is not as rigorous and informed as it could have been. But the debate will not be taken further if I did not show the Foundation the curtesy of engaging with its response, something I am happy to do below.

The Foundation admits that it based its original response “on a face value reading of the [relevant sections of the] Constitution” and not on the interpretation of those provisions by our Constitutional Court, which is the body that definitively interprets the provisions of the Constitution. This was, of course, an oversight by the Foundation as the provisions of the Constitution can only properly be understood with reference to the binding interpretation of the relevant provisions by the Constitutional Court. Relying on an ostensible “face value reading” of the provisions of the Constitution is a rather risky exercise as one then assumes that one’s own supposedly common sense interpretation trumps the authoritative interpretation provided by our highest court.

The Foundation then proceeds to make the following statement:

The judgment [in the Van Heerden case], written by Deputy Chief Justice Moseneke is, indeed, singularly devoid of any concern for the constitutional rights of the white people. He goes through a number of judicial contortions to exclude the right of white citizens to protection against unfair discrimination in Section 9(3). He comes up with the remarkable idea that all and any discrimination against whites in terms of 9(2) is fair provided only that it is not so egregious that it would threaten the long-term achievement of equality.

This statement is surprising and, I have to say, in my opinion not entirely in line with the facts.

First, the claim that the judgment shows no concern for the constitutional rights of white people is impossible to square with the judgment of Deputy Chief Justice Moseneke. As anyone familiar with the judgment would know, Moseneke’s judgment does display concern for the rights of white people – although the concern might arguably not meet the special standard expected by the FW de Klerk Foundation.

I would argue that justice Moseneke engages in a serious and responsible manner with the question of redress by taking the text of section 9 of the Constitution seriously and by trying to balance the constitutional demand for racial redress with the constitutional demand to respect and protect the rights of everyone – including, obviously, white South Africans. The Foundation might feel aggrieved that this balance was not struck differently, but implicitly claiming that no balance was struck at all is at best misleading and at worse an outright falsehood.

Justice Moseneke makes the entirely uncontroversial point (quoting from the Bato Star judgment written by former Chief Justice Sandile Ngcobo) that:

In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.

As all the judgments in the Van Heerden case make clear, this will sometimes require the imposition of race-based corrective measures. I think the judgment of justice Yvonne Mokgoro (agreeing with justice Moseneke) expresses this idea most crisply:

Another aspect of section 9(2) is that it allows a person or categories of people to be advanced. This is important because of the nature of the unfair discrimination that was perpetrated by apartheid. The approach of apartheid was to categorise people and attach consequences to those categories. No relevance was attached to the circumstances of individuals. Advantages or disadvantages were metered out according to one’s membership of a group. Recognising this, section 9(2) allows for measures to be enacted which target whole categories of persons. Therefore a person or groups of persons are advanced on the basis of membership of a group. The importance of this is that it is unnecessary for the state to show that each individual member of a group that was targeted by past unfair discrimination was in fact individually unfairly discriminated against when enacting a measure under section 9(2). It is sufficient for a person to be a member of a group previously targeted by the apartheid state for unfair discrimination in order to benefit from a provision enacted in terms of section 9(2).

No one can surely deny that black people were previously targeted by the apartheid state for unfair discrimination. This means that race based measures aimed at addressing the effects of these apartheid policies will be permissible and will, indeed, sometime be required. But this is not the end of the enquiry, as justice Moseneke made clear that the measures that are aimed at redressing the effects of past racial discrimination and which are aimed at black South Africans may not be abused. Courts must therefore also consider the rights and interests of those not targeted to benefit from the redress (in others words, the very white people whose rights the Foundation wrongly claims justice Moseneke is not concerned about).

This must be done by focusing on the effect of the corrective measures on the group that is not benefiting from the redress measures. As Justice Moseneke stated in the judgment:

However, it is also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity. Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

Although the FW de Klerk Foundation may argue – wrongly in my view – that Justice Moseneke’s judgment fails to show sufficient concern for the rights of white people, the claim that it shows no concern is therefore clearly false. One hopes that a retraction in this regard will be forthcoming. The interpretation provided by Moseneke does not strip white people of their rights. Where, to use an extreme example, Parliament passed legislation that prohibits all employers from promoting white candidates for the next 20 years, such a provision would clearly be unconstitutional as it would impose an undue burden on white South Africans.

My view is that a one-off tax aimed at redress would not impose such an undue burden. The almost negligible effect of the imposition of such a tax is neatly illustrated if one recalls that wealthy Germans (initially almost exclusively living in Western parts of Germany) have been paying a solidarity tax of up to 5.5% since 1991 in order to finance the reconstruction of East Germany. This money is directly transferred to states in the Eastern parts of Germany. It disproportionately affect West Germans, but so far I have not read anything suggesting that Germans living in the Western part of their country are rioting or are arguing that the tax demeans them or undermines respect for their human rights. That may be why the German Constitutional Court has also declined to hear a petition from a lower court on this matter.

The Moseneke judgment is therefore clearly in line with the views of Sachs, quoted approvingly by the Foundation, that to “allow section 9(2) to be interpreted in a way which says: provided the measure affecting the advantaged persons (whites, men, heterosexuals, English-speakers) is designed to advance the disadvantaged, the former can be treated in an abusive or oppressive way that offends their dignity and tells them and the world that they are of lesser worth than the disadvantaged.” Moseneke does not interpret section 9(2) in that way – that is why Sachs concurred in the judgment of Moseneke.

Second, the idea that it might be acceptable for one group (in this case whites) to be treated differently from another group (in this case blacks) in order to achieve the realisation of substantive equality is not remarkable at all. The Supreme Court of Canada as well as courts in many other constitutional democracies embrace this idea. Apart from the US Supreme Court – who is working with a text that is more than a hundred years old – there are very few courts in modern constitutional democracies who do not embrace the substantive notion of equality postulated by Moseneke, Mokgoro, Sachs and Ngcobo (and indeed endorsed by all the other judges of the Constitutional Court) in the Van Heerden judgment.

The notion is also accepted in international law, as a quick perusal of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the jurisprudence of the UN Human Rights Committee, the UN Committee on Economic Social and Cultural Rights and many other quasi-judicial convention bodies required to interpret international human rights treaties will attest.

Anyone familiar with academic writing in the field of equality law will also know that this idea is not remarkable at all and that it is widely embraced and discussed by legal academics and philosophers. A quick perusal of the South African Journal for Human Rights (SAJHR) would have revealed to the Foundation that academics from all over South Africa, as well as academics from other (far from radical) universities such as Oxford, have recently published admirable articles about this concept. Probably the most famous and influential living legal philosopher (and by no means a radical ivory tower academic), Rondald Dworkin, has also written admiringly about this idea.

Now, the FW de Klerk Foundation may want to argue that the conventional wisdom on equality law is wrong and that we should rather turn the intellectual clock back 50 years and embrace a formal notion of equality. Or it may want to make more nuanced arguments – as Prof Henk Botha of Stellenbosch has done in an admirable and thoughtful article published in the SAJHR – about the paradox at the heart of modern equality law, namely that in order to remedy discrimination and redress disadvantage, we have to invoke broad social categories and identities (such as race) which are themselves implicated in relations of inequality and subordination.

Sadly the Foundation did not do any of the above, but instead relied on “common sense”, which sometimes is another word for the shared prejudices and blind-spots of an insular group of privileged but out of touch individuals trying to protect their own interests. The response of the Foundation therefore represents a lost opportunity to engage in an informed and considered manner with the difficult questions around race, redress and equality. Maybe it might want to take another stab at it and produce a more thoughtful and intellectually honest and rigorous argument. I would again be happy to publish it on this Blog in the interest of vigorous and hopefully informed debate.

What happened to reasoned debate?

Aug 22nd, 2011

by Pierre De Vos.

96 comments

The debate about the wisdom of appointing Justice Mogoeng Mogoeng as Chief Justice, given the fact that he has had some ethical lapses in the past, that he appears to have a “gender problem”, and that he belongs to a church that holds extreme views – even by the standards of a modern evangelical church – has revealed much about South Africa’s racial fault-lines and about the very different conceptions about democracy of various groups in South Africa.

This Sunday, City Press uncovered an unreported judgment (now online in the Seminar Room) of the nominee in which Mogoeng, reviewing the case of a woman brutally assaulted by her boyfriend, reduced the man’s sentence from 2 years in jail to a fine of R2000. The woman was tied to a vehicle with wire and dragged at a “fairly high speed” behind the car for some 50 metres on a gravel road. The paper says that after hearing the matter on review in 2001, Mogoeng held that the two years sentence of Eric Mathibe was “too harsh by any standards”, noting, among other things, that he had been “provoked” by the complainant.

Mogoeng noted the complainant did not sustain “serious injuries”. She had several abrasions on her stomach, right leg and both knees. The victim was in pain, but Mathibe refused to let her have medical treatment on the day of the incident. He took her to consult a doctor the following day. The trial magistrate defended the sentence by saying assault on women was a problem in the district and that the crime was “barbaric and ancient”. Mogoeng seemingly did not agree, handing down a judgment that would surely upset any self-respecting gender activist. It would be akin to a judge setting aside a jail sentence of a farmer who had seriously assaulted a farm worker and had dragged the farm worker behind his bakkie on the basis that the sentence was too harsh (something, alas, that is not unknown to our judicial system).

City Press and its sister paper Rapport also reported that Mogoeng belongs to Winners Chapel International church, an institution that believes homosexuality is a perversion and members can buy the Bishop’s book on how to get divine deliverance from it. The church was founded and is guided by Nigerian Bishop David Oyedepo, says the report. It believes in faith-healing for various diseases and has published the testimony of a man whose prayers it claims brought a baby into the world after the mother had been pregnant for five years and seven months, but was unable to deliver the child. Mogoeng is said to deliver “pastoral services” for the church, but does not preach.

Of course, one would not have to look very far to find South Africans who share these views. Many men believe that women “provoke” men into raping them by wearing short skirts or high heels. Other men believe women “provoke” men to assault them by not obeying the orders of their husbands or boyfriends or by flirting with other men. And many South Africans have quite strange and even downright weird religious beliefs while others are athiests or are agnostic.

However, the question is not whether these beliefs are widespread, but whether it is appropriate that the Chief Justice of South Africa should hold such beliefs – given the commitments contained in our Constitution. The beliefs of a nominee for Chief Justice should not be problematic merely because they differ from one’s own. The beliefs should be problematic – as they might very well be in this case – because they cannot be squared with the values enshrined in the Constitution, which values the Chief Justice would symbolically be embodying and would be required to uphold – regardless of his personal beliefs.

If one happens to be a right-wing traditionalist or a patriarch one would be hard pressed not to cheer on this possible appointment of Justice Mogoeng as Chief Justice. (That is why the Freedom Front Plus and Inkatha Freedom Party should find it easy to support this nomination.) If one happens to embrace the progressive values enshrined in the Constitution and if one is honest with oneself and not overtly defensive, one would have to admit that one could not – with a clear conscience – support such an appointment. (Cosatu and the SACP should therefore really be deeply worried about the nomination of Mogoeng as Chief Justice.)

Or so it seems.

But this is not how the debate has unfolded. Many seemingly progressive and respected individuals, people whose views one would otherwise take seriously and respect, have sprung to the defense of the nominee on the basis that he was black and hence could not be criticised because it was not allowed to criticise a black nominee as this would “undermine” him or on the basis that he was nominated by the President and hence that it would be insulting to the President to criticise the nomination. Other conservative voices have criticised the appointment – perhaps because they would criticise any decision that our President makes – no matter how wise that decision might be.

Personally I find the reasons for defending the nominee startling, to say the least. Perhaps it says much about the manner in which we have all been infected and tainted by our apartheid past, that so many South Africans are incapable of making a reasoned assessment about the wisdom of the nomination, based on their values and principles and not based on some other kind of misplaced solidarity, prejudice, hatred or defensiveness.

Not all South Africans seem to have been able to escape the effects of the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks. For such individuals – black and white - there is nothing wrong with believing that black South Africans do not deserve the best and that they should be happy to settle for second or third best.

Why else would so many people support the appointment of Mogoeng Mogoeng, whom no person – as far as I am aware – has stated is the best person for the job of Chief Justice? Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the on-going propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke?

By saying this I am in no way trying to minimise the harsh and cruel effects of apartheid. On the contrary, I am taking these effects seriously but asking what can be done to free us all of a deeply ingrained but horribly offensive and corrosive apartheid mind-set that bedevils so much of our private actions and what passes as our public discourse. While many (but by no means all) white people who take part in public debates exude a kind of moral arrogance and superiority that is deeply offensive and hurtful to those who are patronised, subjected to discrimination or ignored, many black South Africans (but by no means all) seem to embrace the mediocrity ascribed to them by those very racists whom we should all surely despise and whose beliefs we should work very hard to undermine.

Secondly, I am really perplexed by the argument that we should not be allowed to comment on the quality of the candidate nominated by the President because that would show disrespect to the President. This view seems, to me at least, deeply undemocratic. Section 174(3) of the Constitution states that the President as head of the national executive appoints the Chief Justice, “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”

The President must consult and then – after consulting – must appoint the candidate of his choice after having taken into account the views of the JSC and the leaders of opposition parties. In 1999, in President of the Republic of South Africa and Others v SARFU and Others the Constitutional Court considered the appointment of Constitutional Court judges under the Interim Constitution, which required, inter alia, that the President had to appoint such judges “after consultation with the Chief Justice“. The court held that :

It follows … that this appointment could only take place in good faith after consulting the Chief Justice and giving serious consideration to his views.”

The heart of the matter – as also confirmed by many other judicial authorities – is that the President must consider other views meaningfully, and give them serious consideration, although it is clear the final decision rests with him. In doing so, the views of the public must necessarily play a role. If, say, the JSC informs the President that his nominee for Chief Justice lacks the gravitas, judicial stature, belief in the values enshrined in the Constitution and/or support of the judiciary as a whole and that such an appointment would be unwise – something the JSC clearly is entitled to do – the President may nevertheless proceed with the appointment.

In the absence of political consequences the President will never take the views of the JSC seriously and in the absence of a democratic debate there can therefore not be meaningful consultation between the JSC and the President. What would force the President to reconsider the appointment he wishes to make is the court of public opinion. But that court – which is conducted in the democratic space itself by all citizens - would only be able to make an informed decision on whether it supports the decision of the President if there is widespread discussion and debate about the merits and the demerits of the President’s preferred candidate.

To suggest, as some have done, that we should not be allowed to discuss – in a considered and responsible manner – whether the nominee is suitable for appointment merely because our “great leader”, our “wise father”, our “benevolent patriarch” has decided that he should be appointed, is profoundly anti-democratic and deeply insulting to the South African voters.

This does not mean that we should gratuitously insult the nominee in the process. I therefore agree with Paul Berkowitz that Zapiro’s cartoon about this matter was a deeply problematic one. As Berkowitz wrote in the Daily Maverick:

This cartoon falls far short of that standard – it may in fact be my least-favourite cartoon of his to date. In contrast to his normal scalpel-sharp analysis, this was a hatchet job. Mogoeng is painted as a sycophant, an obedient servant of the president who is being rewarded for his pliancy.

But surely it is possible to find the middle ground in between the “hatchet job” done by Zapiro on the nominee, and the sycophantic and often completely mindless and anti-democratic arguments put up in defence of Justice Mogoeng’s nomination as Chief Justice? Surely we can talk in a relatively civil and reasoned manner about what characteristics a good judge and a good Chief Justice should possess and then proceed to analyse Judge Mogoeng’s record to determine whether he indeed possesses these characteristics. Surely, in a democracy we all have both a right and a duty to apply our minds to the matter and not to jump to conclusions based on our racial insecurities, our apartheid-imposed sense of shame and self-hatred or our knee-jerk hatred of the President and the ANC?

When we engage in this discussion we are not undermining the nominee. On the contrary, we are treating the nominee with the requisite respect by taking his or her views seriously and by not treating the nominee as a disembodied symbol respresenting a specific race or gender, but as an individual human being with strenghts and weaknesses, with his own ideas and values, with an agency which the apartheid system wanted to deny all black South Africans.

Personally – for reasons provided in this and previous post - I am deeply concerned about the possible nomination of Justice Mogoeng Mogoeng as Chief Justice. In my view there is ample evidence that he is not the best person for the job and that his value system is not in line with that embodied by our Constitution. Unlike the appointment of Chaskalson, Langa and Ngcobo – which I all supported enthusiastically – I cannot support this appointment. Saying so is difficult because it exposes one to attack and accusations of racism, treachery and worse. It also possibly bedevils future interactions with the new Chief Justice and other members of that court. I would have preferred not to have to make this argument, but I would surely have been a coward if I had kept silent. Keeping silent would also have been deeply patronising to the nominee.

But in engaging in this debate it would have been nice to hear reasoned arguments that support the opposite view, arguments which analyse the nominees strengths and attempts to demonstrate why the values displayed by the nominee in his interviews and judgments are admirable and more or less in line with the values embodied in our Constitution.

So far we have been ill-served by those who defend the nomination. Their failure to make reasoned arguments in favour of his nomination impoverishes the debate and disrespects the democratic space which our Constitution envisaged would be used wisely by all citizens with the power to speak so that we can debate the issues and so that those who are required to make these difficult decisions can hopefully make the wisest possible choice.

Surely Mantashe must know better?

Aug 19th, 2011

by Pierre De Vos.

69 comments

It appears, judging from comments made to The Sowetan newspaper by Gwede Mantashe, that the Secretary General of the ANC seldom if ever reads newspapers. He also seems to have a rather, shall we say, “eccentric” view of the nature of a constitutional democracy. Either that or he is deliberately trying to mislead the South African public to try and deflect attention away from some of the current administration’s more controversial decisions.

First Mantashe claimed that “everyone who has criticised the decision of the president [to 'nominate' Mogoeng Mogoeng as Chief Justice] has not come out with any concrete issues they have against him, except that he is young and he is inexperienced”. This is, of course untrue. Anyone who has read a newspaper (The Times; The Star; The New Age; The Cape Times; The Sowetan) this past week or, indeed, this Blog, would know that many other reasons have been provided for questioning the wisdom of the appointment of the president’s nominee – apart from his alleged lack of experience. It is always embarrassing when an influential and generally respected person makes a claim that no informed person will ever believe, so why Mantashe made this claim is impossible to fathom.

Second, Mantashe seems to believe that there is something wrong with the Constitutional Court because it does its jobs (as required by the Constitution) by declaring invalid Acts passed by Parliament which happen to contravene provisions of the Constitution. Speaking of the Glennister case, Mantashe stated that the judgment of the majority was problematic because it sought “to cast aspersion on the work of Parliament”. Mantashe then proceeded to warn as follows:

You can’t have a judiciary that seeks to arrest the functioning of government. For every small disagreement in parliament, the positions threatens to take matters to the court. Once you have that, then you will have a perception that says the judiciary is actually consolidating opposition to government. That should not be the case. Matters must be taken to court, but the judiciary must not send complicated signals (of being an opposition).

These views are, of course, perfectly compatible with a system of parliamentary supremacy – the kind of system South Africa endured during the apartheid era. But since 1994 South Africa does not have a system of parliamentary sovereignty anymore. Instead, we have chosen a system in which the Constitution is supreme and any Act of Parliament and any conduct by the executive – amongst others – must be declared invalid by the Constitutional Court if it is asked to do so and if it finds that the provisions of the Act or the conduct is in conflict with the Constitution.

When the Constitutional Court declares invalid provisions of an Act of Parliament because these provisions happen to be unconstitutional, this is usually nothing to be embarassed about. In a constitutional democracy one can not always say with certainty whether a provision will pass constitutional muster or not and that is why the Constitutional Court has the final say to determine whether legal provisions pass constitutional muster or not. Besides, parliamentarians depend on legal advice to assist them in determining whether Bills before them are constitutionally compliant, and if they are provided with advice that is not always as wise and informed as it should be, this does not reflect badly on the members of parliament who are seldom trained lawyers.

As outgoing Chief Justice Sandile Ngcobo pointed out in a speech delivered last year, there is nothing strange about parliament declaring invalid acts of parliament. This is all part of a constitutional dialogue in which the court assists the legislature and the executive to ensure that its actions comply with the Constitution. When it assists the other branches of government, it is not acting as the opposition as Mantashe claimed, but as guardians of the Constitution. Surely Mantashe knows this. If he does not, then I can offer to lend him a few books on constitutional law to get him up to speed with the system of government we have chosen in South Africa.

But probably the stupedist thing Mantashe said related to the Constitutional Court’s judgment in which it declared invalid section 8(a) of the Judges’ Remuneration and Conditions of Employment Act. Complaining about this judgment like a spoilt child would complain about not being given another ice cream, he made the following pronouncement:

Even the judgment on the extension of the term of Chief Justice Sandile Ngcobo’s term looks very suspicious. That judgment looks suspicious from where I am seated. I’m not a lawyer, but the judgment is very very suspicious. You have a section in the law that has been there over 10 years, and at a point of extending the term of a judge, then it (suddenly) becomes unconstitutional.

Surely, one does not have to be a constitutional lawyer to know that the Constitutional Court does not have the power to declare invalid Acts of parliament unless the constitutionality of the Act is challenged by some or other party? Where parliament passes a Bill and it becomes law it remains the law until such time as someone challenges its constitutionality - in which case the Court must determine whether the Act is constitutionally valid or not. The statement quoted above is therefore beyond embarrassing.

I suspect Mantashe knows all of the above (how could he not) but that he deliberately made these statements because of frustration in the Zuma government about the many avoidable mistakes it has been making over the past year, many of which had to be corrected by the Constitutional Court. Instead of acting like a mature person and thanking the Constitutional Court for its assistance to correct sometimes quite obvious and glaring mistakes, Mantashe now petulantly blames the institution who had the task of pointing out the mistakes in the first place. Apart from being immature, this approach is also misleading the public – whether deliberately or not – and is not befitting of a senior office bearer of the governing party in a constitutional democracy.

Presidency correct but misses the point on Chief Justice

Aug 17th, 2011

by Pierre De Vos.

117 comments

The Presidency today issued a statement “correcting inaccuracies” it perceived to have been perpetrated in the debate on the appointment of a new Chief Justice. The statement correctly points out that in terms of our Constitution, the President has a very wide discretion when he decides to appoint a Chief Justice and points out that:

In terms of section 174(1) of the Constitution of the Republic of South Africa, 1996, any appropriately qualified woman or man who is a fit and proper person, and is a South African citizen, may be appointed as a judicial officer. In addition, at all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court. The four must have been judges and not judges of the Constitutional Court per se. Therefore, Constitutional Court experience is not a criterion for appointment. By implication it is not necessary that persons appointed as Constitutional Court judges should have been judges before appointment. They could have been legal academics, advocates, attorneys or directors of NGO’s.

I have made similar points in previous Blog posts and in commentary in the media. Of course, whether the constitutional provision invoked is one that may have to be revisited is another matter. Would it not be more in line with a system of checks and balances if the President is required to nominate, say, three candidates as possible appointees and requiring the Judicial Service Commission (JSC) to provide their views on these candidates with a view of advising the President on whether one or more of the preferred candidates are suitable for appointment? There is nothing stopping the President from following this route, but the fact that he has chosen not to follow this route is not in itself constitutionally problematic. Unless the Constitution is changed, the appointment remains the prerogative of the President.

The Presidency also pointed out that experience and seniority is not a requirement for appointment. That is why I did not mention the relatively thin judicial record of Justice Mogoeng Mogoeng when I criticised his “nomination” as Chief Justice. But these corrections are really beside the point. The question is not whether the President is entitled to appoint somebody like his preferred nominee as Chief Justice despite his relatively undistinguished career and his inexperience with constitutional matters.

The question is whether this appointment is a wise one, one that will enhance public confidence in the judiciary. Such an appointment can only enhance public confidence in the judiciary if the selected jurist has the requisite stature and the proven judicial temperament that would allow society as a whole to support the appointment — even where they do not necessarily agree with all the judgments of the candidate or even with the political orientation of the candidate.

In our system, political considerations will necessarily play a role in the selection of a Chief Justice. The President would surely be misguided if he appointed a jurist with whose views he and his party sharply differed. That is why no one would suggest, for example, that the President should appoint Deputy President of the SCA, Judge Louis Harms, as Chief Justice.

But for a decision to be wise and broadly acceptable to the public — by which I do not mean merely members of the opposition parties and the print media, but also members of the legal fraternity, ANC and alliance leaders and informed ordinary voters — the President should ideally appoint a credible candidate, one whose judicial temperament has not been questioned because of questionable judicial decisions which have nothing to do with the outcome of a case.

That is why I pointed out yesterday that the lapses of Justice Mogoeng Mogoeng in this regard — both as Judge President and as Constitutional Court judge — are something to be worried about.

Ideally such a candidate should also have demonstrated that despite the fact that his or her judicial philosophy is broadly in line with that of the ruling party, the candidate also embraces the progressive values embodied in the Constitution. Where a candidate’s judicial pronouncements have placed a question mark over whether he or she has embraced the values of respect for diversity, for democratic debate, for the dignity of all people, then such a decision will not be a wise decision. A President who “nominates” such a candidate should then expect to be confronted with strong criticism about his choice.

The statement of the Presidency fails to engage with these substantive issues, choosing instead to focus on procedural matters which are not really relevant to the debate at all. This is excellent spin doctoring but it does not make for reasoned and considered debate on whether the President’s preferred choice as Chief Justice is one that the society as a whole should support or should oppose.

My post yesterday attempted to demonstrate — with reference to the words and deeds of the nominee — that there are indeed serious questions about the wisdom of this decision. This is enhanced by the fact that the decision was made by the leader of the ANC, an organisation which professes to embrace the progressive values enshrined in the Constitution.

To this I can add the fact that I was reminded this morning that during his interview for appointment to the Constitutional Court the candidate indicated that one way to enhance access to justice for ordinary citizens — something that does need serious attention — traditional courts, presumably staffed by traditional leaders, should be resurrected and promoted. If the candidate still holds this view, it should make a chill run down the spine of any women living in a rural area who might be subjected to the rulings of patriarchal chiefs who, more often than not, have not embraced the idea that women have equal rights with men in our society.

I therefore maintain that while the appointment would be constitutionally permissible, it would be extremely unwise and that progressive forces inside and outside the ANC should say so and should try and persuade the President to change his mind and to appoint a more distinguished jurist with values more in line with the progressive values of the governing party as our new Chief Justice.

The JSC can also play an important role in this regard by carefully considering the rather undistinguished credentials of the “nominee”, along with his various ethical lapses, to decide whether it should advise the President not to appoint the candidate which the President has indicated he favours.

That is really the debate we should be having — not on whether the nominee has served on the bench for a longer period than other appointees to the position.

Justice Mogoeng – an unwise decision

Aug 16th, 2011

by Pierre De Vos.

105 comments

The announcement that President Jacob Zuma has “nominated” justice Mogoeng Mogoeng to take up the position of Chief Justice of South Africa can at best be described as surprising and disappointing. It is as if President Zuma, acting like a spoilt child who could not get his way with the extension of the term of office of the outgoing Chief Justice because he relied on a clearly unconstitutional provision to do so, is now trying to get back at critics by indicating a wish to appoint one of the less suitable candidates to that post.

The “nomination”, if confirmed, will mean that for the next ten years the South African judiciary will be led by a deeply conservative jurist. This could potentially have consequences for the implementation of the transformative vision embodied in the South African Constitution.

I would be surprised if progressive leaders inside the ANC, COSATU and the SACP have been consulted on this decision or, if they have, they supported the decision. There are two main reasons why this decision, while constitutionally permissible, will be viewed by many progressive and pro-transformation champions in our society as one of the most ill-advised decisions our President has made. On the other hand, the decision should be welcomed by many conservatives in both the white and black community who are uncomfortable with the progressive, pro-poor and pro-diversity trajectory of the Constitutional Court.

In any case, the decision says much about the values espoused by our President.

First, it cannot be contested that the nominee is the most conservative judge currently serving on the Constitutional Court. In the case of The Citizen v McBride in a judgment handed down earlier this year by the Constitutional Court, justice Mogoeng dissented from the majority and provided reasons for this dissent which suggest that he has a curious understanding of the way in which freedom of expression operates in a constitutional democracy. In the context of a discussion of the effects of the granting of amnesty by the Truth and Reconciliation Commission (TRC) to those who had committed gross violations of human rights during the apartheid years, justice Mogoeng stated that it was impermissible to use truthful facts to insult, demonise and run down the dignity of self-confessed human rights violators.

Invoking “traditional values and moral standards” — something that the justices on the ultra-conservative wing of the US Supreme Court might do — the judgment seemed to suggest that it was inappropriate in a constitutional democracy to engage in debate that would affront the dignity of any individual. Even in cases where the impugned comments are based on incontrovertible facts (“X is a murderer hence X is a bad person”), would seemingly offend the honourable judge.

As I wrote at the time, it seems to me this view is at odds with the liberal notion of freedom of expression which our courts have found is at the heart of a flourishing democracy. It seems to relegate freedom of expression to secondary status in our constitutional dispensation and elevates the human dignity of others — even the human dignity of gross human rights abusers who dehumanised, tortured and murdered opponents of apartheid — above the rights of the victims of those human rights abusers.

As a gay man and a vocal champion of respect for difference and diversity, I was also deeply disturbed by the decision of the nominee to distance himself from passages in a judgment in the case of Le Roux and Others v Dey (co-authored by justice Froneman and Cameron), which found that our Constitution affirms the principle that there is nothing wrong with being gay or lesbian and hence that one cannot be defamed if one is called a homosexual.

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the refusal of the nominee to endorse the views of the majority on this point suggests that he does not agree with the long line of precedent on sexual orientation discrimination.

Which brings me to the second reason why I believe this nomination is unwise. The problem is that Justice Mogoeng did not provide us with any reasons for his disagreement with the majority judgment in the Dey case. Justice Mogoeng thus managed to avoid scrutiny of his views by the legal community and by the public on this issue. He thus avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy. The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, were therefore not served by this silence. Justice Mogoeng therefore unwisely failed to embody the culture of justification demanded by our Constitution, placing a question mark over his judicial temperament and his wisdom.

If this lapse was an isolated occurrence, one might well have argued that it was of little significance. However, during the time when Justice Mogoeng served as Judge President he presided over the case of S v Dube, in which another such lapse occurred. In that case the nominee’s wife was the prosecutor in the case but the judge failed to inform the accused of this fact. The Supreme Court of Appeal (SCA) found that the failure of the then Judge President to recuse himself when his wife presented argument for the State in the court below constituted an irregularity which vitiated the appeal proceedings. The SCA therefore set aside the order of the High Court and referred the case back for re-hearing before a differently constituted bench.

The SCA pointed out that the enquiry to determine whether a judge should recuse him or herself “involves a value judgement of the court applying prevailing morality and common sense”. The SCA stated that:

A cornerstone of our legal system is the impartial adjudication of disputes which come before our courts and tribunals. What the law requires is not only that a judicial officer must conduct the trial open-mindedly, impartially and fairly but that such conduct must be manifest to all those who are concerned in the trial and its outcome, especially the accused. … In this country a judicial officer was held to be disqualified in a case where his wife was called as a witness. In S v Sharp the complainant was the magistrate’s wife. He presided in a trial where his wife testified. The court on review held that the magistrate had a direct personal interest in the outcome of the proceedings and that it was difficult to conceive of a more obvious example necessitating recusal. In the case such as the present, where there is a close relationship between the presiding officer and one of the legal representatives, it appears to be undesirable if not improper for such judicial officer to sit in the matter.

It is worrying that the SCA has made a finding which suggests that the nominee for the highest judicial office in our country lacks the common sense and a sense of the prevailing morality in our society required from a competent and wise judge.

Of course, the President has the right to appoint any fit and proper person who is suitably qualified as Chief Justice. All that is required is for the President to consult with the JSC and the leaders of opposition parties before making and appointment. There is no requirement that the President should heed the concerns of those consulted. It must be made clear that I am not suggesting that the nominee is not a fit and proper person that is suitably qualified for the job.

But in a constitutional democracy the decisions of our President are subject to scrutiny and it is both appropriate and sometimes necessary to criticise the wisdom of decisions made by our President. In my humble opinion this is a case where such criticism — based on the kind of reasoned analysis provided above — is fitting and necessary.

It would be interesting to see if progressive voices inside the ANC and in the ANC alliance partners will turn a blind eye to this deeply conservative decision of the President. Will they support this nomination or will they be principled enough to criticise this decision? Will they point out that their progressive agenda will not be served by this decision and that it has the potential to undermine the transformative power of the Constitution?

Only time will tell.

Why provinces have little real power but huge responsibilities

Aug 11th, 2011

by Pierre De Vos.

47 comments

The exact contours of South Africa’s quasi-federal system of government, in which legislative and executive powers are distributed between different spheres of government in a way that seems to tilt power away from provincial governments towards the national government, has not yet been fully worked out. The Constitutional Court has only been asked to consider this rather complex issue in very few cases, perhaps because provinces — even the Western Cape government currently controlled by the opposition Democratic Alliance – have not pushed the envelope on this issue.

There are reasons for this reluctance on the part of Provinces to challenge the powers of the national legislature and executive. Provincial governments do not have the power to raise much revenue and is also required to co-operate with the national sphere of government. Besides, provincial legislatures do not have any residual powers to pass legislation. In other words, unlike the national Parliament, which enjoys plenary legislative power within the bounds of the Constitution, the legislative authority of provinces is circumscribed by the Constitution.

Schedule 4 of the Constitution lists those functional areas on which both the national Parliament and the provincial legislatures can pass legislation. These include important areas such as housing, health care, education, policing and education. Schedule 5 lists functional areas with regard to which provincial legislatures have exclusive legislative competence, but these exclusive powers relate to subjects of little importance such as beaches and amusement facilities; billboards and the display of advertisements in public places; cemeteries, funeral parlours and crematoria; fencing and fences; local sport facilities; noise pollution; street trading; street lighting; and traffic and parking.

Provinces have no power to legislate on a matter falling outside Schedules 4 and 5 unless it is a matter “that is expressly assigned to the province by national legislation” or is a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”.

This does not mean that provincial governments have no power to affect the lives of ordinary citizens. A good provincial government can make a huge difference to the delivery of basic services and can also wreck the best-laid plans of a national minister if it does not do its job properly. This is because provincial executives are tasked with implementing not only provincial legislation in the province, but also with implementing all national legislation within the functional areas listed in Schedule 4 or 5 (except where the Constitution or an Act of Parliament provides otherwise).

That is why a national minister of housing, health or education has limited powers to ensure that the services provided in a province is of a high standard. Where the MEC for education and her officials in a province fail to ensure that textbooks are delivered on time or that ARV medication is freely available at hospitals and clinics, the national minister can usually do little more than discuss this problem with that MEC during a MINMEC meeting (a meeting of the minister and relevant MEC’s).

Our system of co-operative government means that the national government and provincial governments have a duty to co-operate with one another “in mutual trust and good faith”, but as anyone knows who has tried to delegate work to an incompetent or lazy person, these requirements work best when the MECs are diligent and their departments are run efficiently. Unless the national government decides to intervene officially in a province in terms of section 100 of the Constitution (in cases where a province cannot or does not fulfil an executive obligation in terms of legislation or the Constitution), the national minister has limited power to interfere in the day to day running of the affairs of a provincial department.

But despite the fact that these general principles are now quite settled, it is far from clear exactly where the powers of the national Parliament and Executive end and where the powers of provincial Parliaments and Executives begin. We would need more test cases to be brought to the Constitutional Court to clarify the boundaries of the powers that may constitutionally be exercised by provincial Parliaments and provincial Executive Committees.

That is why the Constitutional Court judgment handed down today in the case of Premier: Limpopo Province v Speaker of the Limpopo Provincial Government and Others is of some interest — even though the case dealt with a seemingly rather technical question. The question presented in the case was whether the Provincial Legislature of Limpopo had the authority to enact legislation dealing with its own financial management. It arose out of the Financial Management of the Limpopo Provincial Legislature Bill, 2009 (Bill), which was passed by the Provincial Legislature, but which the Premier – very properly, it must be said — declined to assent to and sign. (Maybe the Premier’s legal adviser could be promoted to assist the State Law Adviser with the more complex constitutional questions with which he seems to have such difficulties.)

The Bill mirrored to a large degree national legislation on how to deal openly and transparently with the finances of the Limpopo legislature by creating an oversight committee; setting out the responsibilities of the accounting officer in relation to the money of the provincial legislature; how to deal with the financial misconduct of its own employees and several other related issues.

Schedule 4 or 5 of the Constitution does not allow the provincial legislature to pass laws dealing with its own financial management. The most important legal question was therefore whether the Bill dealt with a matter “that is expressly assigned to the province by national legislation” or a “matter for which a provision of the Constitution envisages the enactment of provincial legislation”. It is the second question that is of particular interest here.

In a minority judgment, Justice Yacoob (in a judgment concurred in by Justice Cameron) argued that the Constitution did “envisage” that a province could pass legislation like the Bill under discussion. Finding that the word “envisages” means something different from “expressly assigned”, Yacoob argued that section 215(1) of the Constitution envisaged that provincial legislatures had the power to pass legislation dealing with its own financial management.

This section requires provincial budgetary processes to promote transparency, accountability and effective financial management of the economy, debt and the public sector. The section then provides that national legislation must prescribe certain pre-requisites that must be complied with by provincial entities and prescribes what budgets in each sphere of government should contain. This, in effect, implied (although the minority is careful not to use this term) that a provincial legislature has the power to determine its own budgetary processes and that it could determine this process by passing legislation regulating that process.

The majority disagreed. In a judgment authored by Chief Justice Ngcobo, a slightly narrower view was taken on the powers conferred on provincial legislatures by the Constitution. It did so by arguing that where the Constitution does not expressly grant legislative powers to the provincial legislature, it does not “envisages” the enactment of provincial legislation. The majority judgment thus confirmed the view that one cannot assume that provincial legislatures have the power to pass legislation merely because they have the power to regulate their own processes and can do so administratively.

Our constitutional scheme does not permit legislative powers of the provincial legislatures to be implied. Were it to be otherwise, the constitutional scheme for the allocation of legislative power would be undermined. The careful delineation between the legislative competence of Parliament and that of provincial legislatures would be blurred. This may very well result in uncertainty about the limits of the legislative powers of the provinces. In the light of the plenary legislative powers of Parliament, it would result in the provinces having concurrent legislative competence with Parliament in respect of many matters. This is not what the drafters of our Constitution had in mind.

If the legislative powers of the provincial legislatures are to be implied beyond those expressly set out in the Constitution, this would, in my view, diminish, through an expansive reading of the Constitution, the residual legislative powers of Parliament. This would be inconsistent with the scheme of the Constitution, by which the provincial legislatures are given specific powers under the Constitution and Parliament is assigned the rest. In my view, the plenary legislative powers granted to Parliament are not to be diminished by implying legislative powers of provincial legislatures not expressly stated in the Constitution. The assignment of powers to the provinces must be expressed in clear and unequivocal language.

Chief Justice Ngcobo argued that the sections relied upon by Justice Yacoob do not envisage the enactment of provincial legislation but, on the contrary, expressly envisage the enactment of national legislation. The national parliament could therefore pass such legislation for provinces, but provinces could not pass such legislation themselves.

In a formal legal sense, I suspect this reading is the more accurate one. It is also more in line to the spirit of the Constitutional Court’s previous forays into this area of the law as it is based on the assumption that provinces only have those powers explicitly provided for by the Constitution and that our Constitution was drafted to secure the upper hand in such matters for the national sphere of government.

On a policy level the (perhaps) slightly more strained interpretation of Justices Yacoob and Cameron is probably preferable to the more logical and coherent interpretation of the majority. If we are going to have a provincial sphere of government that works effectively, a sphere of government where each province established its own character and its government could demonstrate its ability to do better than the national government, our courts should be hesitant to interpret the Constitution too narrowly in a way that favours the powers of the national sphere of government.

At the moment this will make little difference but as the political landscape changes and as more provinces are governed by parties who are not represented in the national government, this could become important. Imagine the SACP or some other party of the left governs three provinces while the ANC retains power at national level. In such a scenario one would probably want the provinces to have the freedom to experiment with different policies that might demonstrate — within the boundaries of what is constitutionally permissible — the benefits of such progressive policies. Whether this will really make any difference — given the fact that budgets are mostly determined at national level — is another question.

However, because the case dealt with a rather technical issue, it does not really help us to understand how the Court will rule in cases where provincial governments push through legislation aimed at further regulating the administration of health, education, policing and housing and where such legislation is in conflict with national legislation on the same topic.

One may argue that it is time for provincial governments to become more adventurous by establishing particular legislative standards and criteria for the delivery of very important services in the fields of education, housing, health and policing as they are co-responsible for these along with the national government. But because provinces have very little independent revenue raising capacity and depend on an allocation from the national budget, this will be rather difficult — especially if a province wished to establish higher standards for the delivery of a particular service and this would have budgetary implications.

On the appointment of a Chief Justice

Jul 29th, 2011

by Pierre De Vos.

49 comments

Who will President Jacob Zuma appoint as South Africa’s new Chief Justice? Will he appoint a conservative man to try and limit the ability of the Constitutional Court to develop a transformational jurisprudence or will he appoint a progressive woman or man who will ensure that the highest court continues to pursue the transformative values, embodied in the Constitution, within the limits of the law and the separation of powers doctrine ? And what are the formal legal qualifications that any candidate for appointment should have? For example, can the President pick anyone off the street to serve as Chief Justice?

Well, it is worth quoting the applicable subsections of section 174 of the Constitution:

Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen.

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 President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

This means that the President can — as a matter of formal constitutional law — appoint anyone with the appropriate legal qualifications and some practical experience or academic expertise in the field of human rights and constitutional law as Chief Justice – as long as that person is “a fit and proper person”. As long as the person has a legal qualification and some experience in the field, the appointment would probably pass constitutional muster.

However the President can only appoint a fit and proper person as Chief Justice. Arguably this will exclude the appointment of Menzi Simelane, whose “fit and proper” status is currently being challenged before our courts. However, this will not exclude the appointment of any number of other practicing lawyers, academics or judges serving on any court — whether the Constitutional Court or any other court in South Africa.

Although the President must consult the Judicial Service Commission (JSC) and the leaders of political parties represented in the National Assembly before he appoints anyone, there is no legal requirement for how such consultation should take place. Neither is there a legal requirement that the President should actually change (or even formally be seen to at least consider changing) his preference for the candidate of his choice because of overwhelming objections from the JSC and opposition parties.

However, the President would be ill advised to appoint a controversial person as Chief Justice who is perceived to be a slavish and obsequious kowtower to the government of the day and whose appointment is reasonably opposed by the JSC and all opposition parties. Although any President would understandably want to appoint a Chief Justice who broadly shares the values and vision of the governing party, such a President — if he believes in constitutionalism and democracy and wants the constitutional democracy with its checks and balances to work properly — will also want to make an appointment that will install public confidence in the judiciary.

The trick is to find the right balance by appointing a credible and respected lawyer (one who is not viewed as willing to take instructions from the government) as leader for our judiciary, while also ensuring that this appointee broadly shares the professed transformational agenda of the ANC government.

An appointment that would severely diminish the credibility of the Constitutional Court and of the democratic system would be disastrous for ordinary South Africans who might want to approach the Court to protect their rights and to advance their social and economic well-being in the face of a sometimes lethargic and unresponsive state suffering from “capacity constraints” and a culture of service to only this who are politically connected or who can pay.

It would also be disastrous for the governing party and its leaders. As the head of the government and the governing party, the President must surely understand that a legitimate and mostly trusted Constitutional Court is a very important prerequisite for the continued legitimacy of the state and, indeed, of the governing ANC. Given governance failures (or as we so euphemistically sometimes calls it, “challenges”) the government of the day and the governing party needs a credible court to serve as a safety valve where citizens can let off steam and where the government can be prodded to act in a way that would provide a better life for all – not just for the few.

If citizens – aggrieved at corruption, nepotism, service delivery failures, police brutality and social and economic rights violations – felt that they could not influence the policies of the governing party (except if they had money and political connections) and stopped believing that they had a chance to be heard and listened to at the Constitutional Court, the day when we have our own Tahrir Revolution here in South Africa will not be far away.

As I have written before, the obvious choice for Chief Justice — somebody who has shown in many judgments including the Van Heerden judgment dealing with affirmative action that he embraces the transformative vision of the Constitution — is the Deputy Chief Justice. Appointing him would signal to COSATU and to more progressive elements within the ANC that the President supports the transformative vision that our Constitutional Court has said is embodied in the Constitution.

The President may, however, wish to appease the patriarchs and the conservatives who are opposed to progressive values and who wish to limit the influence of the Constitutional Court to promote these values within the confines of what the separation of powers doctrine allows. Such a radical appointment might then be made by tapping a relatively new member of the Constitutional Court such as Justice Mogoeng Mogoeng who has emerged as the most conservative justice on the current court and who has signaled that he is not entirely on board with gay rights issues and has also — in the McBride case — displayed a deferential attitude towards the executive.

Or, the President might want to be bold and demonstrate to the women’s lobby that he is serious about the empowerment of women — despite his colourful private life and his seeming patriarchal lifestyle. He may then want to appoint somebody like Justice Bess Nkabinde who has shown during her tenure on the Constitutional Court that she is deeply committed to social justice and respect for the dignity of all people. She is also a mensch — somebody who is admirable in every way and shows fortitude and firmness of purpose without ever forgetting that ordinary people are affected by the law. Such an appointment would be ground-breaking as she would then become South Africa’s first woman Chief Justice.

Otherwise the President could cast the net wider and appoint one of the leaders of any other court in South Africa. Judge Lex Mpati of the Supreme Court of Appeal (SCA) is a respected jurist and a firm believer in the independence of the judiciary. Justice Dunstan Mlambo, who is Judge President of the Labour Court is another possible candidate, a person of high integrity and ability.

By writing this I am not wishing to punt any particular person for the job — it is for the President to decide who he wishes to appoint. But I wish to make two points, which I believe are worth making.

First, who President Zuma appoints will say much about his political views and whether he is progressive or deeply conservative. If he appoints a slavish pro-government and anti-transformation candidate, then the progressives in the ANC will have even more to be worried about than they currently have. If he appoints a safe and steady person, it would reinforce the perception that the President is trying to be all things for all people (although a safe choice in this regard would not be unwise). He can also wow the chattering classes and the progressives in Cosatu and within the SACP and the ANC by appointing a more progressive judge like Moseneke or Nkabinde.

Second, there is no shortage of judicial talent to choose from. There are quite a few progressive, independent minded candidates who broadly share the transformation agenda of the government of the day who could be appointed as Chief Justice. Making an appointment should therefore not be too difficult. Hopefully, the President will be led by his purported progressive party to appoint somebody who will not try and turn the Court away from its transformation agenda and will not wish to give the government a broad scope to do as it pleased – even if it failed to serve ordinary citizens.

A ringing endorsement of judicial independence

Jul 29th, 2011

by Pierre De Vos.

5 comments

As predicted the Constitutional Court today declared section 8(a) of the Judges’ Remuneration and Conditions of Employment Act invalid. It went further, though, and also found that the proposed amendments to that Act now before Parliament, which would have extended the term of office of the Chief Justice through an Act of Parliament would also have been unconstitutional.

The judgment serves as a stunning legal defeat for the Minister of Justice who – in the face of judicial precedent and contrary to the considered opinion of most credible constitutional lawyers – had continued to argue to the bitter end that section 8(a) was constitutionally valid. Incapable of accepting the serious challenge this section posed to the independence of the judiciary, the Minister played politics with the extension in a manner that might well, in another political climate, have led to demands for his resignation.

No wonder then that the incumbent Chief Justice earlier this week withdrew his acceptance of an extension of his term. Both the original section relied upon by the President and the scheme cooked up by the ministry of justice to try and extend the incumbent’s term of office have now been found wanting. It is clear that the Minister needs better legal advice or, perhaps, needs to listen to legal advice provided.

The judgment handed down today is important because it affirms – in ringing terms – and further elaborates on constitutional law principles relating to the independence of the judiciary, the rule of law and the separation of powers.

As I have argued before and as the Court points out, section 8(a) is constitutionally problematic because it confers on the President an executive discretion to decide whether to request a Chief Justice to continue to perform active service and, if he or she agrees, to set the period of the extension. The term of office cannot be extended unless the President decides so and the Chief Justice accedes to the request.

The period of the extension too is in the exclusive discretion of the President and is unfettered in the sense that he is not required to consult. What makes the section even more problematic is that in its purported delegation, Parliament has not sought to furnish any, let alone adequate, guidelines for the exercise of the discretion by the President. The provision thus usurps the legislative power granted only to Parliament by section 176 of the Constitution and therefore constitutes an unlawful delegation of legislative power to the President. Although the Court did not say this, the hallmark of many authoritarian states is the granting of substantive law-making powers to the executive, allowing the President of such a state to rule by decree. Such a situation is not compatible with a constitutional democracy.

In a constitutional democracy, Parliament may not ordinarily delegate its essential legislative functions. Although section 176(1) of the Constitution creates an exception to the requirement that a term of a Constitutional Court judge is fixed, that authority, however, vests in Parliament and nowhere else. The Court noted that section 176(1) does not merely bestow a legislative power, but by doing so also marks out Parliament’s significant role in the separation of powers and protection of judicial independence. As the Court stated:

Accordingly, section 8(a) violates the principle of judicial independence. This kind of open-ended discretion may raise a reasonable apprehension or perception that the independence of the Chief Justice and by corollary the judiciary may be undermined by external interference of the Executive. The truth may be different, but it matters not. What matters is that the judiciary must be seen to be free from external interference.

The decision points out that what is at stake here is nothing less than the independence of the judiciary, returning to this point time and again. The Court thus states:

It is well established on both foreign and local authority that a non-renewable term of office is a prime feature of independence. Indeed, non-renewability is the bedrock of security of tenure and a dyke against judicial favour in passing judgment. Section 176(1) gives strong warrant to this principle in providing that a Constitutional Court judge holds office for a non-renewable term. Non-renewability fosters public confidence in the institution of the judiciary as a whole, since its members function with neither threat that their terms will not be renewed nor any inducement to seek to secure renewal.

This is the point that the Minister seemed not to have grasped. This lack of appreciation for the independence of the judiciary is also reflected in the nature of the proposed amendments to section 8 tabled hastily before Parliament when it appeared that section 8(a) was going to be declared invalid. The Court, in finding that it would be impermissible to single out the office of the Chief Justice for an extension of his term of office, makes the following important points:

In approaching this question it must be borne in mind that the extension of a term of office, particularly one conferred by the Executive or by Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it. While it is true, as counsel for the President emphasised, that the possibility of far-fetched perceptions should not dominate the interpretive process,75 it is not unreasonable for the public to assume that extension may operate as a favour that may influence those judges seeking it. The power of extension in section 176(1) must therefore, on general principle, be construed so far as possible to minimise the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.

Although the Constitution specifically creates the office of the Chief Justice and that of Deputy Chief Justice this does not allow for an extension of his or her term only. This is so because once appointed, the Chief Justice and Deputy Chief Justice take their place alongside nine other judges in constituting the membership of this Court. The Constitution provides that a matter before the Constitutional Court “must be heard by at least eight judges”.

Their high office and the extra-judicial duties they may be called upon to perform add nothing to the tally.” … Nor does their office count when this Court determines the cases and the matters before it. Their views count and their voices are heard equally with the respect and authority accorded every member of this Court.

Thus, it is plain, said the Court, that section 176(1) of the Constitution does not allow Parliament to single out any individual Constitutional Court judge by name (as originally suggested by the Democratic Alliance when it proposed a solution to the extension of the incumbent Chief Justices’ term of office). It is also plain that no individual may be singled out on the basis of an irrelevant individual characteristic or feature.

It follows that the term “a Constitutional Court judge” in section 176(1) does not permit singling out any one Constitutional Court judge on the basis of his or her individual identity or position within the Court. It also follows that in exercising the power to extend the term of office of a Constitutional Court judge, Parliament may not single out the Chief Justice. Given the ANC’s strange insistence – in the face of obvious facts to the contrary, that the challenge to section 8(a) was politically motivated and that it had been used before to extend the term of office of the Chief Justice, it is important to note that the Court distinguishes (as I did in my previous post) between section 8(a) and section 4 of the Act. It pointed out the the proposed amendment to section 8 differs from section 4 of the Ac as section 4:

does not allow any member of the category of Constitutional Court judge to be singled out, whether on the basis of individual characteristic, idiosyncratic feature or the incumbency of office. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court judge. Age is an attribute that everyone attains. Previous judicial service is another criterion that may be indifferently applied to all the judges of this Court. The Act provides that a Constitutional Court judge whose 12-year term of office expires before he or she has completed 15 years‟ active service as a judge must, subject to attaining the age of 75, serve for 15 years in this Court.

Interestingly the Court also rejected the argument that the order of invalidity of section 8(a) should be suspended for a time to allow Parliament to fix the defect, in effect finding that no judge is so important or indispensable that the ordinary rules relating to a suspension of and order of invalidity should be ditched to allow him or her to continue serving as a judge.

In this regard the Black Lawyers Association had argued that suspending the invalidity in order for the defect to be remedied would give expression to notions of restorative justice in customary African jurisprudence. It contended that a mistake has been made in good faith by all concerned and should be “forgiven”. It argued that the term “tshwarelo” or “tshwarela” is applied in African jurisprudence, and is applied in “Lekgotla” (African traditional courts), meaning “excusable” or “excuse” and translates to “erasing the wrong permanently”.

But the Court pointed out that such a suspension would be highly unusual if not irregular The suspension would relate to future consequences that, but for a suspension order, would never come to pass. And there is no indication of any material dislocation if the suspension order were not to be granted. There has never been an instance where the Court has made a suspension order in comparable circumstances. Thus:

Granting an order suspending the declaration of invalidity in the circumstances of this case, where proper information providing the basis for an order was not forthcoming from the responsible state organs and where the invalid extension had not yet come into operation, would have been problematic even if the defect was merely procedural. Where it is substantive and will require major rethinking and decision-making on the part of government, the justification for an order suspending the declaration of invalidity is even weaker. ….

The justification advanced for a suspension order related to non-adjudicative responsibilities said to be intimately linked to the person of the Chief Justice. The judicial work of this Court will not be affected by the temporary absence of a Chief Justice appointed in terms of the Constitution. The important advances pioneered by the current Chief Justice in relation to the institutional transformation of the judiciary need not grind to a halt. Presumably the government will not abandon its co-operation simply because the present Chief Justice may not immediately continue in that position. There is nothing that prevents the incumbent Chief Justice from continuing to give his assistance regarding those projects on a practical level to any temporary or future appointment to the office of Chief Justice. A suspension order will perpetuate an unconstitutional extension of the term of office of the head of the judiciary. The interests of justice and the rule of law demand certainty on the issues before us. This view is fortified by the President‟s submission that the issues in this case deserve finality and clarity because their practical implications are imminent.

The ball is now in the President’s court. That the attempt to extend of the office of the Chief Justice was badly handled, goes without saying. But that something good came out of it – in the form of a principled and detailed judgment relating to the independence of the judiciary and the separation of powers – must be welcomed. Let us hope the Minister of Justice and the President learns from this bungle and avoid a similar bungle when they deliberate on who should replace the current Chief Justice.

Constitutional Court

What we talk about when we talk about transformation

On the right to property

A shallow argument not entirely based on the facts

What happened to reasoned debate?

Surely Mantashe must know better?

Presidency correct but misses the point on Chief Justice

Justice Mogoeng – an unwise decision

Why provinces have little real power but huge responsibilities

On the appointment of a Chief Justice

A ringing endorsement of judicial independence

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