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ANC Chief Whip gets it wrong (again)

Jul 28th, 2011
by Pierre De Vos.
61 comments

It is always embarrassing when somebody in high office makes a fool of him or herself. It is a bit like being stuck in traffic and spotting the person in the car behind you picking his nose: one wants to look away but one also cannot help staring, appalled at having caught a person in such an act.

Today the Office of the Chief Whip of the ANC issued a statement that is so clueless and embarrassing that one wonders whether the person holding that office has ever read the Constitution or the Judges’ Remuneration and Conditions of Employment Act. The statement reads in part:

It is, in our view, questionable whether the decision by the parties responsible to mount a Concourt challenge was taken in good faith. No similar legal challenges were taken when the same process was followed previously regarding the extension of the terms of office for former Justices Arthur Chaskalson and Pius Langa.

This is of course, utter nonsense. Section 8(a) of the Judges’ Remuneration and Conditions of Employment Act, on which President Jacob Zuma purported to rely when he tried to extend the term of office of Chief Justice Sandile Ngcobo, has never been relied upon to “extend” the term of office of any Chief Justice in South Africa. The statement from the office of the Chief Whip seems to confuse section 4 of the Act with section 8(a) of the Act.

In terms of section 8(a) the term of office of the Chief Justice can be extended by the President when the term served by that Chief Justice on the Constitutional Court comes to and end. It thus delegates the power, given to Parliament by section 176 of the Constitution to extend the term of office of Constitutional Court judges, to the President, but only to the extent that the President can extend the term of office of a Chief Justice (not other judges of that Court).

It is true that section 4 of the same Act states that judges who serve on the Constitutional Court will normally serve for either 12 years or 15 years on that court. A judge will serve for 12 years if he or she had served on a lower court for at least three years before appointment to the Constitutional Court. This was the case with Justice Ngcobo who served  for several years as a High Court judge before appointment to the Constitutional Court.

Section 4 states that a judge who has never served on any other court or has served less than 3 years on another court, will be allowed to serve as a judge for 15 years altogether. Thus Justice Chaskalson and Langa could serve for longer than 12 years as they had not served as judges in any other court before appointment to the Constitutional Court.

The differences between section 4 and 8 are clear: Section 4 deals with judges generally - not just with the Chief Justice. Section 4 does not delegate the power to extend the term of office of any judge to the President but regulates – in an automatic way – the terms of office of Constitutional Court judges who will serve 15 years if they had not served as judges before, regardless of whether anyone in Parliament or the Executive wanted them too. Section 4 does not single out the Chief Justice but deals with judges generally. The distinction that is made is between Constitutional Court judges who had served as judges before and those who had not. Thus, Justice Yacoob, who is currently in his thirteenth year on the Constitutional Court, will be able to serve another two years as he was appointed without having served as a judge in another court.

The statement also displays a surprising lack of knowledge of the legislative history of these sections as well as the academic criticism levelled at the amendment of section 176 and the provisions of the Act now being challenged. In 2002, Prof Francois du Bois published an article in the South African Law Journal entitled  ”Tenure on the Constitutional Court” (South African Law Journal, 2002. pp 1-17) which critisise the amendment of section 176 of the Constitution as well as the provisions of the Judges’ Remuneration and Conditions of Employment Act and refers to a submission made to Parliament at the time when it was debating this issue. The article also notes critical comments made by then Chief Justice Chaskalson about moves to extend his term.

The statement by the ANC’s Chief Whip’s office therefore gets it horribly and embarrassingly wrong. But it displays the kind of ignorance and defensiveness which have bedevilled the attempts by the Minister of Justice and the President to find a constitutionally valid way to extend the term of office of the current Chief Justice. A quick look at the Law Journals and to the files of Parliamentary submissions and debates would have helped the various gentlemen involved in this cock-up to come to grips with rather basic principles of Constitutional Law.

Of course section 176 should never have been amended. As a matter of principle it is not appropriate for the term of office of Constitutional Court judges to be regulated by ordinary legislation. But once a constitutional amendment is validly passed it cannot be tested against other sections of the Constitution (although its scope can be narrowly interpreted to make it fit into the larger architecture of the Constitution), so the only question now is whether section 8(a) of the Judges’ Remuneration and Conditions of Employment Act complies with section 176 of the Constitution or not. The constitutionality of section 4 of that Act is not in issue.

So, as I have said before, all that was needed to extend the term of office of the incumbent Chief Justice was to amend section 4 of the Judges’ Remuneration and Conditions of Employment Act to extend the term of office of all Constitutional Court judges to 15 years so that the distinction between judges who had served before appointment to the Constitutional Court and judges who had not, would be removed. If they had followed this route, the extension would have been constitutionally valid – as it was constitutionally valid for Chaskalson, Langa and all other judges of the Constitutional Court who had not served on another court before appointment to the Constitutional Court (O’Reagan, Mokgoro, Sachs come to mind) to serve up to 15 years on that court.

The fact that they automatically did so in terms of a law of general application as envisaged by section 176 of the Constitution and NOT because they were or had to be asked to do so by the President in terms of section 8(a), makes all the difference. Maybe the next time the honourable Chief Whip will remember this obvious fact before metaphorically picking his nose in public.

Government dropped the ball on Chief Justice

Jul 27th, 2011
by Pierre De Vos.
54 comments

News that Chief Justice Sandile Ngcobo has decided to withdraw his acceptance of an extension of his term of office by President Jacob Zuma and that he will step down on August 14 must be welcomed. Unfortunately the Chief Justice had unwisely accepted an extension of his term despite the fact that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act on which the President relied was almost certainly unconstitutional.

The inevitable controversy that resulted from this move by President Zuma threatened the integrity of both the office of the Chief Justice and the person of the incumbent. The government made things worse by refusing to admit that the section on which the President had relied might be constitutionally problematic and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of section 8(a) were motivated by a hatred for the Chief Justice.

By personalising and politicising the issue, the Justice Minister placed Chief Justice Ngcobo in an almost impossible position and the government’s original intransigent stance threatened to destroy the integrity of a judge who has served South Africa with distinction.

By then – belatedly – proposing an amendment to the Act that would only extend the term of office of the Chief Justice and the President of the Supreme Court of Appeal (SCA), the Justice Minister further complicated matters as it was far from clear that this new proposal would pass constitutional muster.

Why the Minister and the President had not thought of whether section 8(a) was constitutional and what other legal mechanism could be used to extend the term of the Chief Justice a year or two ago and why it tried to cook the books, so to speak, at the last minute is a question that must be asked. It suggests that either the Minister’s office or the Presidency – or perhaps both – are not on top of the legal issues and do not plan properly. How can one govern a country when one does things at the last minute in the hope that one can bluster one’s way through by denigrating those who insist on upholding the Constitution?

The big losers in this affair are Minister Jeff Radebe and, sadly, the incumbent Chief Justice, who got mixed up in the bumbling of the Ministry of Justice. If he had not decided to resign he would have for ever been tainted because of the incompetence of the Minister. His decision to resign, rather than to be seen to be used by the Executive, saves his reputation.

By resigning Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him. It spares us all from the rather destructive effects of a long drawn out fight which would have resulted from, first, the declaration of invalidity of section 8(a) and second, the declaration of invalidity of the hastily drafted unconstitutional amendments to the Judges’ Act.

The big question now will of course be who President Zuma will appoint as Chief Justice. Constitutionally he can appoint any qualified person to that post. It does not have to be someone who has served on the Constitutional Court. Nevertheless, I believe it would be undesirable to appoint someone who has not served on the Constitutional Court, because it would introduce an element of blatant politics which have bedevilled the appointment of judges in the USA, where Chief Justice John Roberts were appointed by George W. Bush to that office despite not having served as a judge on the US Supreme Court.

A Chief Justice leads both the judiciary and the Constitutional Court. It is therefore important that such a person should enjoy confidence from among his or her colleagues on the Constitutional Court. This would be more likely if the Chief Justice is elected from amongst the members of the Court. Even if one wished to make a politically “safe” appointment one would want to appoint someone with potential influence over his or her fellow judges on the Constitutional Court, something that an outsider might not as easily enjoy as someone currently serving on the court. A successful Chief Justice runs the judiciary but also builds alliances on the Constitutional Court to secure majorities for the outcome of important cases. An outsider will not be as successful in doing this than an insider.

There are excellent judges currently serving on the Constitutional Court. Any number of them would be able to serve with distinction as a Chief Justice. Of course Deputy Chief Justice Dikgang Moseneke is the obvious candidate, who has displayed the intellect, the legal skills, the composure, the respect for the other branches of government, but also the independence that is required to serve successfully as Chief Justice.

What now for the Chief Justice?

Jul 19th, 2011
by Pierre De Vos.
61 comments

It is now generally accepted by constitutional lawyers and politicians – publicly by some, privately by others – that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act and the President’s decision (taken in terms of this section) to extend the term of office of Chief Justice Sandile Ngcobo, is invalid. Yesterday the Constitutional Court heard arguments about this issue and we will have to wait and see whether the judges on that Court agrees with this emerging conventional wisdom.

But at the hearing yesterday the issue of whether proposed amendments to the Act would pass constitutional muster was also raised. It is unclear whether the Constitutional Court will address these questions, given the fact that the draft legislation at issue has not yet been debated or passed by Parliament.

The Minister of Justice has tabled an amendment to section 8 of the relevant Act, which - in essence - would provide for  a Chief Justice or President of the Supreme Court of Appeal (SCA) to serve a term of seven years as Chief Justice or as President of the SCA in situations where they would have served a shorter term had the ordinary rules regarding tenure of judges applied to them. The amendment provides for an exception in cases where a person reaches the age of 75 before the seven year term ends, in which case that person will have to retire at the age of 75.

The Act also empowers the the President at any time to remove from office a Chief Justice or a President of the SCA who continues to perform active service in terms of this section ”if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties”.

It is clear that the second part of this proposed amendment, which deals with the removal from office of the Chief Justice or the President of the SCA by the President, would never pass constitutional muster. The removal of any judge from office is regulated by section 177 of the Constitution. This section entrusts the power to make decisions on the removal of a judge on the basis of incapacity to the Judicial Service Commission (JSC), who is required to make a recommendation in this regard to the National Assembly. In turn, the National Assembly can only confirm the removal from office of a judge by the President of the country if two thirds of its members voted for removal. 

This proposed amendment purports – in a clearly unconstitutional manner – to delegate to the President of the country the power to remove a Chief Justice and the President of the SCA from office if specific circumstances arise. When the Chief Justice serves a 7 year term that extends beyond the 12 year term prescribed by the Constitution for all Constitutional Court judges, the President will, in principle, have a free hand to decide on whether a Chief Justice has become permanently infirm. 

But an Act of Parliament cannot delegate a power given by the Constitution to the JSC and the National Assembly to the President of the country. This would be like an ordinary piece of legislation delegating the power to appoint the Police Chief to the Chief Justice when the Constitution clearly states this power must be exercised by the President of the country.

Whoever drafted this section really should be fired for incompetence because the section is so obviously unconstitutional that every second year student of Constitutional Law would have been able to advise the drafters that this section will never pass constitutional muster. One trusts that when Parliament debates the proposed amendments, this section will be scrapped forthwith. Section 177 of the Constitution already provides for the removal of a judge from office if that judge suffers from incapacity due to old age, so the section is unnecessary in any case.

A more difficult question posed by the draft legislation is whether the amendment is constitutionally invalid because it singles out the Chief Justice and the President of the Supreme Court of Appeal for an extension of their terms. Section 176(1) of the Constitution provides that: “A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except when an Act of Parliament extends the term of office of a Constitutional Court judge.”

The argument could be made that a law of Parliament that singles out the Chief Justice in this way and does not extend the term of office of the Deputy Chief Justice and other Constitutional Court judges is not a law of general application and that Parliament is not empowered to single out the Chief Justice in this manner. Because judicial independence, safeguarded in section 165 of the Constitution, requires security of tenure for judges and also requires judges not to be treated by the legislature in a manner that would allow a reasonable apprehension of bias to arise against a judge serving in a particular position, similarly situated judges should usually be treated similarly by the legislature unless pressing practical reasons exist not to do so.

Given these requirements and because section 176(1) talks about the term of office of “a Constitutional Court judge”, so the argument goes, the legislation must either extend the term of office of all Constututional Court judges or none of them. Singling out the Chief Justice for an extension of his or her term above other Constitutional Court judges might serve as a powerful incentive for any Constitutional Court judge to be subservient to the executive in order to serve for a longer term on the Constitutional Court. This might give rise to a reasonable apprehension of bias on the part of any serving Chief Justice.

Besides, it might be argued, it is arbitrary to make a distinction between the Chief Justice and the Deputy Chief Justice by only extending the term of office of the former, as both positions are explicitly mentioned in the Constitution. The fact that only the term of the Chief Justice is extended, would turn a law of general application into an impermissible law that arbitrarily draws distinctions between different judges not mandated by the Constitution. There is no pressing practical reason to do so, hence the distinction cannot be constitutionally permitted.

On the other hand, one may argue that the Constitution itself distinguishes between the Chief Justice and Deputy Chief Justice on the one hand, and other judges of the Constitutional Court, on the other and bestows the power to appoint the Chief Justice and Deputy Chief Justice on the President. An Act that extends only the term of office of the Chief Justice and not the terms of office of other Constitutional Court judges, so the argument might go, would only follow the scheme already established by the Constitution.

As the President already appoints the Chief Justice – usually from amongst serving judges of the Constitutional Court – and as this position could be viewed – reasonably so or not – as being sought after, would one then not be able to say that an apprehension of bias may arise (reasonably so or not) regarding all Constitutional Court judges, but that this dynamic has been built into the Constitution and should therefore be dismissed as being constitutionally irrelevant – even if such an apprehension might be viewed as reasonable, which would in any case be questionable?

The argument would be that all judges of the Constitutional Court may well be perceived by some (if not by reasonable bystanders) to be potentially less likely to find against the executive and may be perceived as being potentially subservient to the executive because it would be believed that an ambitious judge would rule in a certain way in the hope that he or she would be appointed as the next Chief Justice. If this were to be true, then the Constitution itself mandates this dynamic and any amendments to the Judges Remuneration and Conditions of Employment Act would make no difference to the state of affairs.

Besides, so it might be argued, section 176(1) bestows on Parliament the power to extend the office of “a Constitutional Court judge”, which could be interpreted to mean any of the judges of the Constitutional Court – including the Chief Justice.

I think both arguments are plausible and may well hold sway with the Constitutional Court. However, personally, I would think that section 176(1) should be given a narrow interpretation as it should be read holistically with all other sections of the Constitution – including those sections which guarantee the independence of the judiciary and secure the tenure and financial future of judges. Legislation that tampers with this scheme – even slightly – should therefore be carefully scrutinised. It should be assumed that the Constitution did not empower the legislature to make distinctions between judges serving on the Constitutional Court unless pressing practical reasons exist for drawing such a distinction. 

Given this view, I am leaning towards the argument that the proposed amendments as currently drafted do not meet the requirements for independence, read with section 176(1) of the Constitution. As I have argued before, it would be preferable if Parliament merely amended section 4 of the Judges Remuneration and Conditions of Employment Act to extend the term of office of all Constitutional Court judges to 15 years of service on the Constitutional Court.

Given the fact that the incumbent Chief Justice had unwisely accepted the President’s offer of an extension of his term of office in terms of section 8(a) – which he should have known was almost certainly unconstitutional – it is important for the legislature to ensure that the dignity of the Constitutional Court and the office of the Chief Justice be protected. This can best be done by treating all judges serving on the Constitutional Court in the same manner to prevent any perception arising – no matter how invalid this might be – that special arrangements are being made to ensure that the incumbent Chief Justice remains in office because he is more trusted by the executive or is beholden to it.

On the Constitutional Seventeenth Amendment Bill

Jul 5th, 2011
by Pierre De Vos.
18 comments

In a constitutional democracy in which the Constitution is supreme and in which the courts can declare invalid any law or act by a member of the executive or – where applicable – a private institution or person, safeguarding the independence of the judiciary is pivotal. All the checks and balances contained in such a constitution will ultimately only be effective if judges are allowed to interpret and apply the Constitution and the law in an impartial manner and where judges are free – according to their conscience and in line with their honestly held beliefs – to interpret and apply the Constitution and the law without fear, favour or prejudice.

Currently the independence of the South African judiciary is guaranteed by section 165 of the Constitution, which confirms that the judicial authority of the Republic is vested in the courts; that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice; that no person or organ of state may interfere with the functioning of the courts; and that organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

Section 165, interpreted holistically, confirms that members of the executive – including the Minister of Justice – may not interfere with the functioning of the Courts. Although the Minister of Justice is politically responsible for the administration of justice in South Africa, he or she may not unilaterally impose norms and standards on the judiciary or act in any other way that could be perceived as interfering with the institutional independence of the judiciary or the impartiality of judges.

The Minister can therefore not take over the management of court rolls and cannot tell individual judges that they need to work longer hours or that they need to produce their judgments within a reasonable time as this would be seen as interference with their independence. Yet, when judges take months and – in some cases – even years to produce written judgments, the administration of justice is fundamentally compromised. Some mechanism must therefore be found to ensure that judges are held accountable without interfering with their independence.

At the same time, the Ministry is required to support our judges and to provide the backup to ensure that judges are able to do their wjob to the best of their ability. When a judge’s computer stops working, the air-conditioning in her office is on the blink, the lifts stop working or the toilets are not cleaned, the Ministry of Justice, working with Public Works, must ensure that this is fixed.

Of course, if a judge is particularly unpopular with the executive, there will always be a temptation to “punish” such a judge by not providing adequate support. But as recent complaints by senior judges about conditions at the South Gauteng High Court in Johannesburg has shown, the Ministry may be less than stellar in its support even where the executive has no personal vendetta against a judge or against a particular court. In such cases, it would be important for the judiciary to speak with one voice and to have a champion in the form of the Chief Justice – as the head of the Judiciary – to ensure that the executive provides our courts with the support that they are constitutionally entitled to.

One may therefore view the proposed amendment to section 165 of the Constitution, contained in the Constitutional Seventeenth Amendment Bill, through this lens and argue that the amendment will help to safeguard the independence of the judiciary by clarifying the roles of the head of the judiciary (who happens to be the Chief Justice) and the Minister of Justice regarding the administration of justice. The amendment would add the following subsection to section 165 of the Constitution:

(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

This proposed amendment must be read with the provisions of the proposed Superior Courts Bill. Section 8 of this Bill states that:

(3) The Chief Justice may, subject to subsection (5), issue written protocols or directives, or give guidance or advice, to judicial officers: (a) in respect of norms and standards for the performance of the judicial functions as contemplated in subsection (6); and (b) regarding any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts.

Read together, the proposed amendment of the Constitution and the relevant provisions of the Superior Courts Bill will bestow extensive powers on the Chief Justice over the administration of the Courts. However, the power of the Chief Justice is tempered by further provisions which confirm that the “management of the judicial functions of each court is the responsibility of the head of that court”. The proposed section 8(5) of the Bill also requires that any protocol or directive issued by the Chief Justice may only be issued by the Chief Justice if it enjoys the majority support of a forum of judicial officers convened by him or her.

When dealing with High Courts, the forum of judicial officers must include all the Heads of the Superior Courts. A worrying aspect of the draft Bill is that it does not limit this forum of judicial officers to the Heads of Superior Courts. In theory the Chief Justice can decide to co-opt any number of judges to serve on such a forum.  In theory, a number of hand picked judges larger in number than the Heads of Court can therefore be selected by the Chief Justice to sit on such a forum in order to try and ensure that the proposals of the Chief Justice are approved. This is a serious flaw in the draft legislation that needs attention.

That the power of the Chief Justice over the judicial functions of all courts are quite extensive is made clear by section 8(6) of the Bill, which states that the judicial function over which the Chief Justice exercises responsibility include (but is apparently not limited to) the determination of sittings of the specific courts; assignment of judicial officers to sittings; assignment of cases and other judicial duties to judicial officers; determination of the sitting schedules and places of sittings for judicial officers; determination of standards applicable, and procedures to be adhered to in respect of: (i) case flow management; (ii) the finalisation of any matter before a judicial officer, including any outstanding judgment, decision or order; and (iii) recesses of Superior Courts.

The purpose of the amendment of section 165 of the Constitution and the introduction of section 8 of the Superior Courts Bill is clearly to empower the Chief Justice to take charge of the administration of justice to ensure that our courts operate more efficiently. In theory this will improve access to justice and will ensure that all courts function better and faster to serve the public efficiently and impartially. This move has been welcomed by many commentators – most notably by my colleague Richard Calland – because, so it is argued, in order to safeguard the independence of the judiciary while ensuring judicial efficiency, the Chief Justice, rather than the Minister of Justice, should be empowered to oversee the running of our Courts.

Critics will argue that despite the safeguards included in the Superior Courts Bill, the amendments would give the Chief Justice too much power over the running of the Courts. For example, the Chief Justice could issue directives (in consultation with the judicial forum) setting norms and standards for the performance of many judicial functions, including decisions about the assignment of judicial officers to individual cases. However, as I read the section, the Chief Justice would not be able to interfere in a decision made by a Judge President about the allocation of a case to a particular judge. He or she would only be able to issue directives setting out norms and standards to be followed by the Judge President when allocating cases.

Nevertheless, the big weakness of this section as it reads now is that the Chief Justice would be able to manipulate the composition of the forum of judges whose approval will be needed to issue these directives. Given the fact that the Chief Justice is appointed by the President with hardly any involvement of the Judicial Service Commission, and given that the Chief Justice is therefore a clear political appointee, extra safeguards are needed to ensure that better checks and balances are placed on the exercise of the authority of the Chief Justice.

Law makers have a tendency to legislate for current conditions and based on incumbent personalities, instead of formulating laws that would be sound even if the conditions changed and the current personalities retired. The mere fact that most of us trust the current Chief Justice to exercise these proposed powers wisely and in a consultative manner, does not mean that a future Chief Justice will do so. It is therefore important that the proposed legislation be amended to include more stringent checks and balances that will limit the powers of the Chief Justice in order to prevent a power grab in the future.

PS: The Constitution Seventeenth Amendment Bill, read with the Superior Courts Bill, contains other important provisions that will lead to far reaching changes to our judicial system. In the coming days I will discuss these provisions in more detail.

How to solve the problem with the term of the Chief Justice

Jun 16th, 2011
by Pierre De Vos.
36 comments

It is a great pity that President Jacob Zuma – in responding to various challenges to the constitutionality of section 8(a) of the Judges Remunerations and Conditions of Employment Act – has sought to politicise the issue. Dismissing criticism of his reliance on this section to purportedly extend the term of office of Chief Justice Sandile Ngcobo, President Zuma yesterday called the move to uphold the principles of separation of powers, independence of the judiciary and the Rule of Law “politically motivated”.

President Zuma noted that those who were challenging his decision to allow Chief Justice Ngcobo to serve for another five years (on the basis that the law he used to do so was unconstitutional) had been silent on this fact for 10 years since it was passed by parliament. “This law was passed by this house 10 years ago after careful consideration. I therefore acted in terms of an existing law,” he told the National Assembly in his reply to the debate on the presidency’s budget. He added, straying from his prepared speech: “You see we can’t make the laws and one day when they are applied if they do not suit our own personal interests, then they want to change them. It is a problem and yet in the same breath we respect the rule of law.”

This view, if correctly reported, is perplexing, to say the least. In a constitutional democracy in which the Constitution is supreme, citizens have a right to challenge legislation on the basis that it is unconstitutional and will usually not do so in the abstract but will only spend the time and money to challenge an impugned provision when reliance is eventually placed on the alleged unconstitutional provisions of an Act.

This happens all the time. In the past, when individuals or civil society groups have challenged the constitutionality of a provision of  an Act of Parliament when that provision was relied on, our government had not suggested that they do not have a right to do so because they had waited too long to challenge the impugned provision. No wonder, as such an argument is based on a fundamentally misconception of the nature of constitutional review.

Either the section of an Act is constitutionally valid or it is not. Citizens affected by it have the right to approach a court to seek clarity on the unconstitutionality of any legal provision at any time after it had been passed by Parliament. The fact that the provision had been enacted years previously does not expunge this right. Nor could it, as our Constitutional Court has made it clear that all legal provisions in conflict with the constitution is objectively invalid – although it would require the Constitutional Court to confirm this invalidity before the legal provision would in fact become a legal nullity.

As I have argued before, given the Constitutional Court precedent on the separation of powers and the independence of the judiciary, a compelling case can be made for the contention that section 8(a) of the impugned Act is unconstitutional. This does not mean that the term of office of the Chief Justice cannot be extended in a constitutionally valid manner. Section 176(1) of the Constitution provides for this as it states that “a Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge”.

Section 4 of the Judges Remuneration and Conditions of Employment Act is such an Act. It provides for a Constitutional Court judge to serve for 15 years on the Constitutional Court if he or she had not served as a judge in the High Court before appointment to the Constitutional Court. It also allows a Constitutional Court judge to complete a 12 year or 15 year term even if he or she has attained the age of 70 – as long as the judge is not older than 75. Because of section 4, former Chief Justice Arthur Chaskalson and other judges of the Constitutional Court could serve a full 12 or 15 year term despite the fact of having turned 70 before this term had come to an end.

The most elegant manner to solve the current problem would be to repeal section 8(a) of the Act and to amend section 4 of the Act to allow any judge of the Constitutional Court to serve a full term of 15 years as a Constitutional Court judge, regardless of whether the judge has served on the High Court prior to appointment to the highest court (as Chief Justice Ngcobo has done) and regardless of whether that judge has reached the age of 70. This solution would not require the President to rely on an unconstitutional provision of the Act and would go a long way to address fears regarding the unconstitutional delegation of law-making power to the President and would prevent the creation of a reasonable perception that the Chief Justice was not impartial and independent.

Such an amendment would also ensure that all judges serving on the Constitutional Court are treated in exactly the same manner, thus preventing a situation where the Rule of Law is threatened by the passing of legislation that is not of general application.

Of course, this solution will only work if Parliament acts swiftly. The term of office of the current Chief Justice comes to an end during August. Once his current term ends, it would be impossible to extend the term of office of the Chief Justice because he would not be a serving Chief Justice anymore. One cannot extend the term of office of a judge who is not in office anymore.

I sincerely hope that the President and his advisers will be wise enough to choose this  far more palatable option, instead of insisting that it will continue to rely on a section of the Act that is almost certainly unconstitutional. If they persist, we might well lose the services of the current Chief Justice who is midway through a very important re-organisation of the judiciary. As I have argued before, we need the  current Chief Justice to continue serving in this capacity for the next three years to complete his reforms as this will help to ensure the long term independence of the judiciary. It would be a great pity if this becomes impossible because of the stubborn insistence of the executive to rely on a section of the Act that is almost certainly unconstitutional.

A sense of justice and common sense needed

Jun 14th, 2011
by Pierre De Vos.
6 comments

Sometimes judges in our High Courts seem overly formalistic and proceed to declare invalid  legal provisions when this was not constitutionally required. Instead of using common sense to interpret the impugned legal provision in a manner that complied with the Constitution, the Court invalidates a legislative provision in a earnest but clumsy attempt to apply the Bill of Rights. It then falls on the Constitutional Court to bring some common sense to bear on the matter by declining to confirm an order of invalidity made by the High Court.

Today in S and Another v Acting Regional Magistrate, Boksburg: Mr Phillip Venter and Another the Constitutional Court, in a judgment authored by acting justice Mthiyane, declined to confirm the order of the High Court which declared invalid section 69 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, which came into effect in December 2007. The facts which led to this judgment are rather peculiar.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act was passed to codify the crime of rape and to broaden the definition of rape to include the sexual penetration of a male, anal and oral penetration, as well as penetration with objects other than a penis, none of which were included under the common law.

The problem arose when a certain Mr Lucas van der Merwe was charged with the rape of a 3 year old girl in terms of the new Act for an alleged rape which occurred in 2005 – two years before the adoption of the Act. Mr Van der Merwe objected to the charge, arguing firstly, that he could not be charged with contravening section 3 of the new Act, because the Act only came into force on 16 December 2007 (over two years after the alleged rape was committed). (This argument was clearly correct and Mr van der Merwe should never have been charged in terms of the new Act, but in terms of the common law.) The second contention was that he could not be charged with common law rape either, because that crime no longer existed, having been repealed by the Act, almost two years before he was charged.

His arguments hinged on a specific interpretation of the transitional provisions contained in section 69 (read in conjunction with section 68) of the new Act, which he claimed kept the common law in operation only in respect of prosecutions instituted and investigations initiated before the commencement of the Act, and not in this case, where the criminal complaint was reported only after the commencement of the new Act.

Section 68(1)(b) of the Act repeals the common law crime of rape, among other offences, by stating that the common law relating to the crime of rape “is hereby repealed.” The result of this section is that rape committed after the commencement of the Act is punishable under the Act and not under the common law.

Section 69 contains certain transitional provisions, which keep the common law in force for the purposes of the disposal of any investigation, prosecution or other criminal proceedings instituted in relation to conduct committed prior to the commencement of the Act which would have constituted one of the common law crimes repealed by section 68 and states:

(1) All criminal proceedings relating to the common law crimes referred to in section 68(1)(b) which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act must be continued and concluded in all respects as if this Act had not been passed.

(2) An investigation or prosecution or other legal proceedings in respect of conduct which would have constituted one of the common law crimes referred to in section 68(l)(b) which was initiated before the commencement of this Act may be concluded, instituted and continued as if this Act had not been passed.

(3) Despite the repeal or amendment of any provision of any law by this Act, such provision, for purposes of the disposal of any investigation, prosecution or any criminal or legal proceedings  contemplated in subsection (1) or (2), remains in force as if such provision had not been repealed or amended.

Mr Van der Merwe’s argument, in effect, was that this section had the effect of retrospectively repealing the common law crime of rape in cases where the rape occurred before December 2007 and where criminal proceedings had not yet been instituted or investigations had not yet been started. If this was the case, all rapes which had occurred before December 2007 and had only come to light after the adoption of the Act would not be punishable as the common law crime would have been appealed and could therefore not be relied upon, while the statutory crime would not have been applicable either.

The High Court agreed with this reading and (because this would obviously be untenable) declared section 69 of the Act invalid as it was found to infringe on the rights of rape survivors as guaranteed by section 12 and 28 of the Bill of Rights. The Constitutional Court disagreed with this interpretation, pointing out that section 68 of the new Act did not repeal the crime of rape retrospectively.

If it did, that would result in the extinction of criminal liability incurred before the commencement of the Act. However, in our common law there is a presumption against retrospectivity. It is presumed that a statute does not operate retrospectively, unless a contrary intention is indicated, either expressly or by clear implication. This presumption is consistent with the fair trial provisions of the Constitution.

This must surely be right. One of the basic tenets of the Rule of Law is that the law must be clearly stated and certain in order for citizens to act in accordance with the law. Just as the retrospective creation of a crime would be highly problematic, so should the retrospective extinction of a crime by the legislature be frowned upon.

But what about section 69, which only dealt with cases of rape which had already  been reported or investigated and not with cases of rape that only later came to light? Was the High Court correct to find that this section – because it had failed to mention such cases – had in effect retrospectively annulled the application of the common law crime of rape to such cases? Once again, the Constitutional Court – using some common sense – found that it had not.

It pointed out that section 69, on its face, makes no mention at all of crimes committed before the commencement of the Act but only reported or investigated thereafter. Its immediate meaning, so the Court argued, should surely be that those cases are not at all affected by its terms.

The threshold question is whether section 69 was enacted to cover the entire field of prosecutions for common law rape. It clearly was not. Given its plain meaning, the section does not apply to prosecutions not yet instituted. Those prosecutions are not precluded. The presumption that the statute did not amend the prior position more than necessary is therefore preserved. Accordingly, it was not necessary to interpret and ultimately to invalidate section 69. It is clear from the face and context of section 69 that it does not confer prosecutorial power on the State in respect of common law crimes, but rather confirms it. It would therefore be inappropriate to interpret it as a provision that could curtail the State‟s prosecutorial power, which is sourced elsewhere: in the National Prosecuting Authority Act and, ultimately, the Constitution.

As I see it, the High Court erred by not reading section 69 in conjunction with section 68 or, alternatively, by wrongly assuming that section 68 had retrospective effect. It is obvious from reading the Act that the legislature did not have the intention of letting alleged rapists like Mr van der Merwe off the hook merely because their alleged crimes had not yet been reported or investigated.

Sometimes, some common sense and a sense of justice is all that is required to properly interpret the provisions of an Act in order to ensure that crimes do not go unpunished. That is what the High Court had failed to do and what the Constitutional Court in fact did when it delivered judgment today.

Judges must keep their cool

Jun 10th, 2011
by Pierre De Vos.
9 comments

When lawyers fight on behalf of their clients about who should pay their legal fees, things can get ugly. When the lawyers are from Durban and they appear before a Johannesburg judge, the sparks may well fly. In such cases it is important that the presiding judge keeps a cool head. Unfortunately that did not happen in the case of Stainbank v South African Apartheid Museum at Freedom Park and Another.

This is why yesterday the Constitutional Court handed down judgment in a case in which it had to consider whether acting judge Ebersohn acted in a biased manner when he considered an urgent application by Stainbank in the motion court to stay the taxation of the bill of costs. The cost related to various court proceedings relating to the question of how owned the “Apartheid Museum” trade mark.

Ebersohn AJ directed Stainbank’s attorney to appear in open court and the following exchange ensued:

COURT: Now why on earth, why on earth should this Court be burdened to be here at five pm today? Why should the matter not be set down for ten o’clock tomorrow morning, like all urgent applications are? If it is, unless it is a question of a murder being, about to happen, then you can deviate from the normal rules regarding set down, but now to set the matter down to five pm, that means that lady must miss her bus. Why was it set down for five oclock?

MR CARLS: MLord, the primary reason behind the set down for five oclock was that there was a concern about the matter being called before the taxation has been set down at 10:30 tomorrow. That is primarily the reason. . . [intervenes].

COURT: Ja, but, now you see, very conveniently the notice of set down of the taxation was deleted from the papers.

MR CARLS: With respect. . . [intervenes].

COURT: It is not in the papers.

MR CARLS: With respect, MLord, not a point of convenience. It might have been an oversight.

COURT: No, . . [intervenes].

MR CARLS: Those papers were literally prepared within . . . [intervenes].

COURT: The Court regards it as convenience, because then the Court would have seen that it was 10:30. Then I could have started becoming agitated.

MR CARLS: As the Court pleases.

COURT: I am not here to fight with you. I believe your counsel will be flying to, I do not know why you get counsel from Durban.

The judge refused to hear the matter that afternoon, and ruled that it should be enrolled for hearing on the following day at 10h00. In light of the fact that the taxation of the bill of costs was set down for the following day at 10h30, the judge directed that taxation should not proceed until the urgent application was disposed of. He also requested the applicant‘s attorney to bring that direction to the attention of the taxing master.

When the proceedings commenced, counsel for the Stainbank applied for the postponement of the application. He argued that the applicant needed to file a replying affidavit to respond to the first respondent‘s papers. During the presentation of argument in respect of the postponement application, the judge – perhaps still upset about the previous evening’s altercation – made several remarks that constituted the basis of the subsequent application for his recusal on the basis that the acting judge was biased. 

While the applicant‘s counsel was presenting argument, the judge interjected to remark that:

I take offence that attorneys behind my back elect to approach the Court and upon my clerk enquiring from your attorney why 17h00, the response was that it suited the counsel who comes from Durban.

Later, when the Stainbank’s counsel informed the judge that the instructions from his attorney were that the court had on the previous day made an order that taxation would not proceed, the judge made this remark:

Your attorney is lying. . . . He is lying about what you now said. I said to him I refuse to enrol the matter. I said to my clerk, after he left my chambers, I said to my clerk he must advise the taxing master that she is not to proceed with the taxation until this application has been heard.

Stainbank’s counsel – perhaps because he is a less emotional sort of chap than a certain Cape Town advocate who recently said rather nasty things about Judge Bozalek’s mother – then apologised for the error. The application for a postponement was refused and the application to stay the taxation proceeded.

After further discussion the judge invited the parties to present argument after the lunch adjournment on whether the court should order costs from the applicant‘s attorney‘s own pocket de bonis propriis. Stainbank’s counsel informed the court that the parties required to see him in chambers to which the judge remarked, “[d]id I get misquoted again?” The High Court adjourned once more. When it resumed, the applicant applied for the recusal of the judge on the basis of either actual bias of a reasonable apprehension of bias, a decision that usually is not (and should not) lightly be taken.

Counsel for Stainbank contended that because the judge had called his attorney a “liar” in court and had also invited submissions on costs from the attorney‘s own pocket in circumstances where costs had not been sought by the first respondent, he would not be able to impartially adjudicate the matter. The judge gave a judgment from the bench in which he dismissed the application for recusal:

The fact that the attorney gave instructions to the applicant‘s counsel . . . which instructions were false . . . caused the Court to remark that then he was lying. The counsel . . . then apologised and that was the end of that matter. Every reasonable person in court then realised that it was an unfortunate misunderstanding between counsel and his instructing attorney.

If the attorney is aggrieved, he only has himself to blame. This Court has not judged the matter yet and there is no possibility of bias on the part of this Court against the applicant and/or his attorney. The application for recusal is refused.

The High Court refused to stay the taxation and made a punitive order for costs reasoning as follows:

Regarding costs [the applicants attorney] did not comply with the rules of the Division regarding the bringing of an urgent application, his instructions to counsel regarding the recusal application was an open attempt to bully the judge and bordered on contempt of court. He, furthermore, delayed in bringing the urgent application until such time when he knew that there would not be sufficient time for the first respondent to file answering papers. He also, unilaterally and without consulting with the judges clerk, and seeking the judges permission thereto, unilaterally enrolled the matter for 17h00 which is not a normal time inconveniencing the court, its staff and the first respondent and their legal team. The attorney will therefore be mulcted with costs in the event of his client not paying the taxed costs of the first respondent.

The Constitutional Court, in a unanimous judgment written by justice Khampepe, applied the well developed test namely whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that a judge has not or will not bring an impartial mind to the adjudication of the dispute, that is, a mind open to persuasion by the evidence and the submissions of counsel. The Court once again emphasised that there is a presumption in favour of the impartiality of the court which will not easily be dislodged. It also recalled the dicta in its Wouter Basson recusal judgment where it held that in considering whether the remarks give rise to a reasonable apprehension of bias, a judge should not be held to an ideal standard that would be difficult to attain.

In the end the Constitutional Court rejected the appeal founded on allegations of bias – but it was a close run affair. Given the fact that Stainbank’s attorney “was not without blemish” the court had some hard words for the acting judge. Even allowing for the pressures of a busy urgent court like the North Gauteng High Court, the absurdity of the set down, and the inept manner in which Stainbank’s attorney prepared the application (given his 22 years” experience), the judge‘s conduct during the proceedings was found to be “unacceptable”. As the Constitutional Court stated:

The remark made by the judge that the applicant‘s attorney was lying is most unfortunate. It displays a lack of courtesy that is required from a judge in the execution of his judicial duties, no matter how trying the circumstances are. Bearing in mind that there is no suggestion that the applicant himself was responsible for this, it is understandable that he may have formed a subjective impression that the judge was biased against him. In the end, although this case comes close to satisfying the reasonable apprehension of bias test, considering all the factors, it falls short of dislodging the presumption of impartiality. In the circumstances, the appeal founded on bias cannot succeed.

Reading this judgment one becomes aware of the pressures under which both judges and lawyers operate in our courts – especially in busy divisions such as the South Gauteng High Court. Hopefully the judgment will serve as a warning to judges not to lose their cool – even in extreme circumstances – as this might well give rise to an apprehension of bias on their part.

On the term of office of the Chief Justice

Jun 7th, 2011
by Pierre De Vos.
34 comments

The announcement by President Jacob Zuma at the end of last week that he was extending the term of office of Chief Justice Sandile Ncgobo with another 5 years was generally welcomed by the legal community. Constitutional Court judges usually serve a non-renewable term of 12 years and justice Ngcobo’s 12 year term is coming to and end in September. Justice Ngcobo has only been Chief Justice for a relatively short period and it has been argued by my colleague Richard Calland, amongst others, that he needs time to oversee the completion of the judicial reforms that would ensure the long-term independence of the judiciary.

Besides, because it is generally assumed by Constitutional Court watchers (rightly or wrongly) that President Jacob Zuma would rather have a cup of tea with Vusi Pikoli and his buddies from the (now defunct) Scorpions than appoint Deputy Chief Justice Dikgang Moseneke as Chief Justice, and because there are no other obvious candidates for the post, few constitutionalists raised concerns about the extension of the term of office of the highly regarded incumbent Chief Justice.

But now the Centre for Applied Legal Studies (CALS) has upset the apple cart by announcing that it is intending to challenge the constitutionality of section 8 of the Judges Remuneration and Conditions of Employment Act in terms of which President Zuma extended the term of office of the Chief Justice. Section 8 of this Act states that:

A Chief Justice who becomes eligible for discharge from active service… may, at the request of the President, from the date on which he or she becomes so eligible for discharge from active service, continue to perform active service as Chief Justice of South Africa for a period determined by the President, which shall not extend beyond the date on which such Chief Justice attains the age of 75 years.

The challenge to this section will be based on the argument that the section interferes with the independence of the judiciary. The independence of the South African judiciary is explicitly protected in section 165(2) of the Constitution, which states that “courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. Section 165(3) states that “[n]o person or organ of state may interfere with the functioning of the courts”. Organs of state, through legislative and other measures, are also obliged – in terms of section 165(4) – to “assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”.

As our Constitutional Court jurisprudence makes clear, independence has two components. The first component speaks to the impartiality of judges and refers to the state of mind of individual judges that will allow them to act without fear, favour or prejudice in each case that comes before them.

The second component refers to the institutional independence which relates to the relationship of the judiciary to other branches of government (particularly the executive branch) and the safeguards that protect the judiciary as a whole against interference by other branches of government.

While the distinction is not always easy to maintain, the former is safeguarded when individual judges are said to be viewed as free to make decisions in individual cases according to their honest interpretation of the law. Where a judge has a vested interest in the outcome of a case (say, because he or she is a director of the company who is a party to a case being considered before the judge), the independence of that judge can be said to be compromised. When a judges lacks security of tenure or financial independence, the independence of the judiciary might also be compromised at an institutional level.

The test for independence is an objective one. In Van Rooyen and Others v The State the Constitutional Court set out this objective test, stating that one should ask whether the court or tribunal “from the objective standpoint of a reasonable and informed person, will be perceived as enjoying the essential conditions of independence” and can thus be viewed as independent.

It is important that there must be public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is therefore important that a tribunal should be perceived as independent as well as impartial.

The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. One must ask what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. But it is important to note that this objective test must be properly contextualized.

The perception that is relevant for such purposes is, however, a perception based on a balanced view of all the material information. We must ask how things appear to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person. Bearing in mind the diversity of our society this cautionary injunction is of particular importance in assessing institutional independence.

The well-informed, thoughtful and objective observer must be sensitive to the country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation it makes between different levels of courts. The requirements for independence would be more onerous for a Constitutional Court judge than for a magistrate, for example, as decisions of magistrates can be appealed while decisions of the Constitutional Court are final.

Given these principles annunciated by the Constitutional Court, the extension of the term of office of the Chief Justice in terms of section 8 of the Judges Remuneration and Condition of Employment Act potentially presents a problem for judicial independence. It is specifically the first component of that independence regarding the perceived impartiality of the judge that might be implicated by this section.

It may well be argued (and I assume CALS will argue) that section 8 is unconstitutional if tested against the reasonable person test set out above. A reasonable person – one with all the facts at hand – might have an apprehension that a Chief Justice who might want to remain Chief Justice beyond the 12 year term as a judge in the Constitutional Court would not be sufficiently impartial and independent because there might be a reasonable fear that he or she would at least be tempted to curry favour with the President in order to ensure that his or her tenure is extended.

Although he or she might not do so (and although there is absolutely no suggestion that Chief Justice Ngcobo has done so or will do so in future), an objective person might well be found to have a reasonable apprehension that a Chief Justice might not be impartial when considering cases involving the executive. The personal aspect of independence and impartially is therefore implicated.

The argument is that a reasonable apprehension may arise that, given the existence of section 8 of the Judges Remuneration and Conditions of Employment Act, the Chief Justice, once appointed, might be tempted to rule in favour of the President and his government or will not criticise it harshly because he or she would have a personal interest in having his or her term of office extended – which would only happen if the President agreed to the extension.

This is not the end of the matter, though.

One may argue that the general rules regarding independence are qualified by section 176(1) of the Constitution (which was inserted in the Constitution in 2001 to provide for the extension of the term of office of then Chief Justice Arthur Chaskalson) as it explicitly allows for an Act of Parliament to extend the term of office of a Constitutional Court judge. An Act which extends the term of office of all sitting Constitutional Court judges to 15 or 20 years would therefore probably be constitutionally valid as this would be allowed by section 176.

One may also argue (as President Zuma’s legal advisers will surely do) that section 8 of the Act does just that by handing over to the President the power to extend the term of office of the Chief Justice. Parliament, so it can be argued, therefore provided for the extension of the term of office of a Constitutional Court judge as provided for in section 176. Section 8 can therefore be seen – at a real stretch – as an Act of Parliament extending the term of office of the Chief Justice which is allowed by section 176(1) and which would therefore be constitutionally valid.

A better (and far more plausible) view is that section 176(1) of the Constitution does not save section 8 of the Act as the Act does not itself extend the term of office of a Constitutional Court judge but delegates that power to the President – the head of the executive. Section 8 unconstitutionally delegates the power to extend the term of office of the Chief Justice (which the Constitution awards to  Parliament) to the President.

Both impartiality and independence relates to the ability of a judge not to be influenced by the executive and not to be seen to be prone to such influence. As judicial independence is safeguarded elsewhere in the Constitution in quite stark terms, and as section 176(1) must be read in conjunction with those safeguards, the argument would be that section 176(1) of the Constitution should be read narrowly not to allow Parliament to delegate the power to extend the term of office of the Chief Justice to the President. (There is also a separation of powers problem in that a law-making function is being delegates by this section to the President, something that was found in the Western Cape judgment to be unconstitutional.)

The Constitutional Court is often called upon to make decisions about legislation piloted through Parliament by the executive (headed by the President) or to adjudicate on the constitutionality of acts by the President and members of his executive. A reasonable person may well have a reasonable apprehension that the Chief Justice, whose term may be extended by the President, may be subtly influenced not to rule against the executive. It is important to note that this is about the perception created by the Act and not by whether – in fact – a Chief Justice will ever so be influenced.

As section 176(1) does not explicitly give the President the power to extend the term of office of the Chief Justice, section 8 may therefore very well be viewed as being unconstitutional.

A better approach to section 176(1) would be that it gives Parliament the power to extend the term of office of all sitting judges from 12 years to, say, 15 or 20 years. This view would also be in line with the tenet of the Rule of Law that Parliament should only enact laws of general application and should not enact legislation that applies to an individual person to address a peculiar individual situation.

When section 176 of the Constitution was amended back in 2001, many constitutional lawyers argued against the amendment, arguing that despite the high regard in which they held then Chief Justice Arthur Chaskalson and despite his brilliant tenure as Chief Justice, as a matter of principle, the terms of office of Constitutional Court judges should be fixed to prevent any perception of bias or a lack of independence. The same argument still holds.

An easy solution to the Hlophe appeal problem

Apr 26th, 2011
by Pierre De Vos.
66 comments

It came as no surprise that Western Cape Judge President John Hlophe intends appealing against two SCA judgments that prompted the Judicial Service Commission (JSC) to agree to reopen a complaint into his conduct. According to news reports, Hlophe’s lawyer Barnabas Xulu said Hlophe’s legal team was preparing to file papers at the Constitutional Court. It is, of course, Judge President Hlophe’s right to try and avoid a situation where the JSC is forced to decide whether it was him or the judges of the Constitutional Court who lied to it under oath and he has every right to lodge an appeal. He just does not have any right to have that appeal heard by the judges of the Constitutional Court.

In any case, this creates a fascinating constitutional problem which us lawyers will discuss for years to come. However, the problem is not one that is too difficult to solve and the awkward situation created by the appeal can be easily addressed.

The problem is this. Only four of the current judges of the Constitutional Court are not complainants in the case. The seven judges who took part in the original complaint would have to recuse themselves as they cannot hear a case in which they are personally involved. Where there is a reasonable apprehension of bias on the part of a judge who has to hear a case, he or she has a duty to recuse him or herself. That would clearly be the case here. However, section 167(2) of the Constitution states that a minimum of 8 of the 11 judges of the Constitutional Court must hear a case. The four remaining judges therefore would not constitute a quorum and those four judges could not hear the case alone.

One solution would be to appoint four acting judges to make up a quorate bench of eight judges. However, appointing four acting judges is not feasible. Section 175(1) of the Constitution states that:

The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.

Where a judge recuses him or herself from a case but remains at work there is clearly no vacancy in the court. Neither is the judge absent when he or she is sitting in the office but has merely recused him or herself from hearing a particular case. This interpretation is in line with the ordinary meaning of the words as well as with the case law dealing with the meaning of the word “absent”. In the case of Natal Rugby Union v Gould the Supreme Court of Appeal decided that ordinarily the word “absence” in a constitution of a voluntary association means the state of being absent, that is to say, physically absent and not “legally disqualified”.

As judges are legally disqualified when they recuse themselves, they are therefore not absent as required by section 175(1) of the Constitution and no acting judges can therefore be appointed to the Constitutional Court in these circumstances.

But even if one could re-interpret the term to mean that a judge is “absent” when he or she recuses him or herself, no acting judges can be appointed for yet another rather important reason. Such acting appointments are made by the President on advice of the Chief Justice and the Minister of Justice. But the Chief Justice and the Minister of Justice are both parties to this dispute while the President might reasonably be perceived as having an interest in the dispute as the approach by Judge President Hlophe allegedly took place on behalf of President Zuma. No acting judges appointed in this manner by those empowerd by the Constitution to do so could possibly be perceived by any reasonable person to be unbiased.

But this is not the end of the world. Everyone has a right to lodge an appeal against a decision of a lower court with the Constitutional Court. But no one has a right to have their appeal heard by the Constitutional Court. The Constitutional Court often declines to hear appeals lodged with it, inter alia, because it is not in the interest of justice to do so. The Constitutional Court will therefore have no option but to decide that it is not in the interest of justice to hear the appeal and that the SCA judgment should therefore stand.

Of course, one may argue that because the majority of judges of the Constitutional Court are involved in the Hlophe matter, they should not be involved in a decision about whether the SCA judgment should stand. Judge President Hlophe’s lawyers may very well apply for the judges to recuse themselves even before a decision is taken on whether it is in the interest of justice to hear the appeal. This is where the doctrine of necessity enters the picture. This doctrine allows, inter alia, for a judge to hear a case even if he or she has an interest in it in a case where it is impossible for any other judge or tribunal to hear the case.

The Constitutional Court will therefore be required to deal with the general constitutional point (but not the substantive arguments of Judge President Hlophe) raised by this appeal and will probably have to decide that it can never be acceptable for a party with a direct interest in a case to take part in the appointment of acting judges, that acting judges can therefore not be appointed in this case and that it is therefore impossible for the Constitutional Court to hear the case. The SCA judgment will therefore have to stand.

There would be nothing extraordinary about such a decision. Neither would it fundamentally affect the rights of anyone. In 2008 in the case of American Isuzu Motors, Inc et al, Petitioners v Lungisile Ntsebeza et al the United States Supreme Court could not hear a case because a majority of judges on that court had an interest in the case. The Supreme Court judges (including those who had an interest in the case) therefore decided not to hear the case and to affirm the decision of the lower court from which the appeal was lodged. The same solution could be used in this case.

Given the fact that no one has a right to have their appeal heard by the Constitutional Court (who only hears cases when it is in the interest of justice to do so), and given that it could not possibly be in the interest of justice for the bench of current judges to hear the case, nor for a bench constituted by parties with a direct interest in the case to hear a case, the only elegant solution seems to me to be the one proposed above.

Those who do not have the best interest of the judiciary, the legal system and our constitutional democracy at heart might be tempted to try and exploit this awkward situation to discredit the Constitutional Court or the legal system as a whole for short term gain. They may argue (wrongly) that by not hearing the case the Constitutional Court is infringing on the rights of the appellant.

Demagogues might also exploit the ignorance of the public who might not be aware that one does not have a right to have one’s case heard by the Constitutional court. However, I am confident that all reasonable people – no matter where they stand in the matter of the complaint against Judge President Hlophe - will not allow such demagoguery to go unchallenged.  

Although the situation is of some academic interest and presents the Constitutional Court with an awkward problem, talk of a crisis is somewhat overblown. If everyone acts in an honorouble manner, several solutions (including the one proposed above) could be found to ensure that no crisis will arise and that our judiciary will emerge stronger and more credible on the other side. 

On Lady DA-DA and the shower head man

Apr 19th, 2011
by Pierre De Vos.
52 comments

One of the more shocking (but nevertheless, in retrospect, rather entertaining) judgments to be found in the South African law reports is that of Vermaak v Van der Merwe, a 1981 case dealing with defamation. The Natal High Court (as it was then called) had to decide whether publication of a defamatory statement took place in a case where the recipient of the words did not know what they meant.

A certain Mrs Vermaak had phoned a Mr van der Merwe and asked to speak to his wife to which she received the reply:  ”Het jy nie gehoor dat sy bly by daardie donnerse lesbian nie?” (Haven’t you heard that she is staying with that bloody lesbian?) Mrs Vermaak did not know what a lesbian was and later asked her husband what was meant by these words. Her husband then told her. The question was whether her original ignorance about the meaning of the word “lesbian” meant that no defamatory statement had been communicated.

We have come a long way since then. In the recent case of Le Roux v Dey, in a judgment authored by Justice Cameron and Froneman, the Constitutional Court found that it could not be considered defamatory to call someone gay or lesbian, and reasoned as follows:

The Constitution does not condone individual prejudice against people who are different in terms of race, sex, sexual orientation, conscience, belief, culture, language or birth. These are unfair grounds for differentiation and the equality provision of the Bill of Rights protects against discrimination based on them. It therefore cannot be actionable simply to call or to depict someone as gay even though he chooses not to be gay and dislikes being depicted as gay — and even though stigma may still surround being gay. To hold actionable an imputation based on a protected ground of non-discrimination would open a back-door to the enforcement by the law of categories of differentiation that the Constitution has ruled irrelevant.

As I pointed out at the time, Justice Mogoeng Mogoeng indicated (without giving reasons) that he disagreed with this view. As Justice Mogoeng had not given any reasons for his disagreement, it was unclear whether his refusal to sign on to this aspect of the judgment was based on the kind of “individual prejudice” mentioned by Froneman and Cameron.

An interesting aspect of the judgment in the case of The Citizen v McBride is that this time justice Mogoeng not only dissented but also wrote a separate dissenting opinion. Unlike the other judges, he found that the rather acrimonious and distasteful campaign by The Citizen against Mr McBride’s appointment as police chief of Ekurhuleni was “part of a well-orchestrated character assassination campaign” waged by The Citizen against Mr McBride and could therefore not be viewed as fair comment.

As I read the judgment, it is premised on the assumption that we have a constitutional duty not to vilify others and that our freedom of expression must be exercised “responsibly” to protect the human dignity of others — even of those found guilty of gross human rights violations. It’s a bit like the LeadSA campaign about a Bill of Responsibilities in that it assumes that our right to freedom of expression must always be exercised politely and carefully. In this world, robust, bitter and acrimonious exchanges and the hurling of clever political insults and witty but cutting asides are not allowed

Truth-telling during the amnesty process was thus not intended to lay the foundation for the endless vilification of South Africans who grossly violated human rights, either in the furtherance of the crime of apartheid or the struggle for freedom from apartheid, in the name of freedom of expression. Nor was the truth, uncovered during the amnesty hearings or even during the trials of those who committed gross human rights violations, intended to be used to undermine the pursuit of national unity and reconciliation What is impermissible is the use of truth revealed to insult, demonise and run down the dignity of self-confessed human rights violators.

Justice Mogoeng contends that our Constitution places a responsibility on us to engage in less heated and bitter public criticism of others — not because it is our ethical or moral responsibility, but because the law requires us to do so. ANC members who wish to criticise Lady DA-DA (as some clever hack called the dancing Helen Zille) or columnists who wish to ridicule the President for fathering children out of wedlock should therefore not be allowed to express their criticism in bitter, sarcastic or vitriolic terms.

At the heart of his view is a very unique and particular view of our shared history and culture. Justice Mogoeng seems to want to hark back to a (possibly imagined and fictional) time when so called traditional values and moral standards still prevailed. (Whether the traditional values and moral standards referred to include respect for the human dignity of gay men and lesbians is not clear.)

We live in an African country which is rapidly being denuded of the values and moral standards which once characterised and defined the very nature of who a substantial majority of its citizens were and what they stood for. Botho or ubuntu is the embodiment of a set of values and moral principles which informed the peaceful co-existence of the African people in this country who espoused ubuntu based on, among other things, mutual respect.Language was used in moderation and foul language was frowned upon by the overwhelming majority. A forgiving and generous spirit, the readiness to embrace and apply restorative justice, as well as a courteous interaction with others, were instilled even in the young ones in the ordinary course of daily discourse. The unforgiving, the arrogant and the unduly abusive were described by the Batswana, and presumably other African communities, as those who are bereft ofbotho.

Ubuntu gives expression to, among others, a biblical injunction that one should do unto others as he or she would have them do unto him or her. The law, order, generosity, peace and common decency that previously characterised many communities in South Africa were attributed to an unwavering commitment to the philosophy of ubuntu. No wonder the drafters of our interim Constitution deemed it meet to cite ubuntu as one of the ingredients essential to the healing of our country. Sadly, a new culture has taken root and continues to cancerously eat at botho.

It seems to me this view is rather idealistic. Anyone familiar with our current political discourse would know that hardly anyone engaged in politics in South Africa adheres to this biblical view in which one should always do unto others as one would like them do unto oneself. According to this view half the statements made by Julius Malema about Helen Zille and members of the DA, say, (or about white people in general) would be viewed as unprotected and hence unlawful defamatory statements. Much criticism of President Jacob Zuma (for example, criticism contained in cartoons depicting our President with a showerhead on his head) would also seemingly become unlawful if this view is adhered to.

The view is also 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 matter of moral reasoning, one may well agree with Justice Mogoeng that we should all try and be better people and should all try not to be so beastly to one another merely because we disagree with one another.  (Class, as punishment write out one hundred times: “I will not make disparaging remarks about the looks of a certain DA councillor.”)

But as a matter of constitutional law, the principle is deeply flawed. It may well be used by politicians to escape valid and trenchant criticism. Unless criticism is couched in sanctimonious platitudes and caveats, politicians may well be able to sue for defamation and this will invariably have a serious chilling effect on the free expression of views and ideas by ordinary citizens.

Julius Malema is obviously an idiot when he calls Helen Zille a dancing monkey, but should our law really hold him liable for defamation for doing so? And, come to think of it, should I be held liable for defamation for calling Malema an idiot? I think not.

Do we really want to live in a world where Malema “expresses disquiet at the quality of Helen Zille’s less than graceful dancing” and I express the opinion that Julius Malema “might be faced by unfortunate etiquette challenges”? Once again, I think not.

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