Constitutional Hill

Constitutional Court

On Zimbabwe, foreign policy and the limits of the law

Apr 6th, 2011
by Pierre De Vos.
19 comments

What can a South African citizen expect from our government when he or she gets into trouble in a foreign country (maybe by smuggling vast quantities of tik or a bunch of Vuvuzela’s into the United Kingdom) or where his or her financial interests are affected by the policies of that country’s government (maybe when his farms are expropriated and redistributed to “War Veterans”).

In the case of Kaunda & Others v President of the Republic of South Africa and Others handed down in 2005 the Constitutional Court made clear that a South African citizen did not in fact have a right to diplomatic protection from our government when such a misfortune befalls him or her. (Although perhaps an exception would be made for the Vuvuzela-smuggler.)

One does have a right to request our government to provide one with diplomatic protection, and this means the government has a corresponding obligation to consider the request and to deal with it consistently with the Constitution. But as Chief Justice Chaskalson made clear in the Kaunda case, this “right” does not amount to much. (In other words, whatever you do, never smuggle Vuvuzela’s into the United Kingdom – even if you are a South African Airways air hostess and the smuggling of cocaine has become too boring.)

Said Chaskalson:

A decision as to whether protection should be given, and if so, what, is an aspect of foreign policy which is essentially the function of the Executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill-equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than Judges, and which could be harmed by court proceedings and the attendant publicity.

This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection. The exercise of all public power is subject to constitutional control. Thus even decisions by the President to grant a pardon or to appoint a commission of inquiry are justiciable. This also applies to an allegation that government has failed to respond appropriately to a request for diplomatic protection. For instance, if the decision were to be irrational, a court could intervene. This does not mean that courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection….

If government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.

It was therefore surprising when the High Court first found that the South African government had  failed to deal rationally, appropriately and in good faith with an application of Mr Crawford Lindsay von Abo (what a wonderful name!) for diplomatic protection in respect of the violation of his property rights by the Zimbabwean government. Even more surprising was that the High Court had ordered the South African government to take all necessary steps to have the violations of Mr Von Abo’s rights remedied within 60 days. If this was not successful, the government was ordered to pay an amount in damages to Mr Von Abo to compensate him for the losses he had incurred because of the violation of his rights by the Zimbabwean government.

Many lawyers said at the time, that this High Court judgment was completely wrong and that it was not in line with the Constitutional Court precedent on the matter.

In a judgment handed down on Monday, the Supreme Court of Appeal (SCA) agreed with this view — well, sort of. It criticised the High Court for trying to prescribe to the President and the Department of Foreign Affairs (now the Department of International Relations) how to conduct its negotiations with the Zimbabwean government and for ordering the South African government to pay damages to Mr Von Abo for the loss he had incurred due to the actions of old Bob Mugabe and his cronies. Snyders JA, writing for a unanimous bench, wrote:

The conclusion by the court below that the appellants [including the President and the Minister of Foreign Affairs!] had to have personally taken steps and deposed to affidavits, unrealistically and naïvely ignores that diplomatic actions involve complex and sensitive relationships conducted through an extensive hierarchy according to a particular protocol which, if breached, could result in failure even before the substance is considered. It was also unrealistic to have expected the appellants to comply personally with the second order within the short time frame of 60 days without taking account of relevant facts like other pressing matters of state, that may have made it impossible for them to comply personally with the order.

In issues relating to our government’s interaction with its Zimbabwean counterpart, the President and the Minister of International Relations (as she is now called) exercise a political discretion. When the SA government engages with Bob Mugabe and his government, they must obviously have some leeway to decide how to go about it. At the same time, they must not act irrationally or breach the Constitution in any other way when they do so. It is a difficult issue and courts must be careful not to muddle in policy issues in a manner that has less to do with constitutionalism and more with naked politics. One would not want the Zimbabwean army to invade South Africa (given the shambles in which our Defence Force finds itself in) merely because the President had said the wrong thing to President Mugabe or had been a bit too insistent in asking questions about Mr Von Abo’s farms because he was instructed to do so by any judge.

Even though the role of the court is therefore limited, our Constitutional Court jurisprudence is quite radical on this score as it insists that even the exercise of such powers are reviewable by our courts. Although the review will seldom be successful, it establishes the principle that no exercise of public power is free from judicial scrutiny — even if it is in aid of advancing “national security”. The President or a Minister can be found to have acted unconstitutionally because he or she had not acted in good faith or had acted irrationally. This is a very high standard to meet and it would be rare for a court to find that the President or the Minister had not met their constitutional obligations in terms of the principle of legality.

Curiously the SCA did not seem to stick to the law as so admirable described by the judgment. Instead of dismissing the entire order of the High Court, the SCA confirmed that part of the order of the High Court which declared that the failure of the President and his Ministers to rationally, appropriately and in good faith consider and decide the respondent’s application for diplomatic protection in respect of the violation of Mr Von Abo’s rights by the Government of Zimbabwe is inconsistent with the Constitution and hence invalid. This it did because the President and Ministers had not provided detailed enough reasons of what they had done to try and assist Mr Von Abo.

The reasoning is very thin and unconvincing. The SCA seems to rely on rather dubious legal reasoning that does not seem to comply with the letter and the spirit of the Constitutional Court precedent. Yes, the government had not provided detailed answers to what it was doing  to assist Mr Von Abo. But it had taken some steps to fulfil its obligations and it is far from clear that this was irrational. We might not like what the government did or did not do, but that does not mean it had acted unconstitutionally.

Worse, as the SCA points out, this order that the appellants’ response does not conform to what is demanded of them in terms of the Constitution, was “of theoretical value only”. It did not order the President or the Ministers to do anything. It merely found that what it had done so far does not conform to what is demanded by the Constitution. So while Mr Von Abo now has a SCA judgment which confirms that his rights have been infringed, he still loses the case because the government is not ordered to do anything to correct its alleged “mistakes”. This leaves the SCA looking impotent and toothless: having been “reduced to paper tigers with a ferocious capacity to roar and to snarl but no teeth to bite and no sinews to execute what may then become a piece of sterile scholarship” (in the words of the late Chief Justice Ishmael Mahommed).

What this case demonstrates rather well is that the courts are not always the appropriate forum for the handling of essentially political disputes. Mr Von Abo in essence is upset that the South African government’s foreign policy towards Zimbabwe was too tentative and timid and was therefore far less successful than it could have been. But a court of law is not the place where foreign policy should be decided. If we think the ANC government is not following the correct policy towards Zimbabwe, we should vote against the ANC in the next election or organise civil society opposition to the policy in an attempt to get the government to change it. This is not the work the courts can do for us.

Finally the truth might be revealed

Mar 31st, 2011
by Pierre De Vos.
128 comments

In a stunning (but to some of us not surprising) judgment handed down today, a unanimous bench of 5 judges of the Supreme Court of Appeal (SCA) (Streicher JA, concurred in by Brand, Cachalia, Theron and Seriti JJA) found that the decision of the Judicial Service Commission (JSC) that the evidence in respect of the complaint by the Constitutional Court against Judge President John Hlophe does not justify a finding that Judge President is guilty of gross misconduct and that the matter accordingly be “treated as finalised”, constituted an abdication of the JSC’s constitutional duty to investigate the complaint properly and was therefore unlawful and invalid.

In essence the SCA found that the JSC had not done its duty as required by the Constitution because it attempted to sweep this matter under the carpet. By assuming that because there were two versions of what happened — one presented by Hlophe and another presented by Justice Jafta and Nkabinde – that cross-examination of the witnesses who presented these conflicting versions would serve no purpose and hence that no further and proper investigation was required, the JSC did not act lawfully. As the judgement states:

It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

It is important to note that this judgment should not be seen as pre-judging the issue of whether Hlophe did indeed attempt to influence the judges of the Constitutional Court. Judge Hlophe is therefore not necessarily the big loser of today’s judgment (although he was slapped with a cost order). We do not know for certain what happened when Hlophe went to speak to Jafta and Nkabinde as there are two diametrically opposed versions of these discussions. If Hlophe’s version is the true one, he may even emerge as the winner in this sad and sorry saga. But what we do know now is that it is the job of the JSC to find out what happened. It is their failure to do so that came under attack today.

The winner today was not so much the judges of the Constitutional Court or Freedom Under Law (FUL). Instead, the judicial system and the citizens of South Africa were the ultimate winners today. After all, as the SCA noted, it is in the interest of every South African citizen that the JSC should properly and lawfully deal with every complaint of gross misconduct by a judge that may threaten the independence and impartiality of the courts and may justify the removal of that judge from office. Should the JSC shirk its duty in this regard, it can have grave repercussions for the administration of justice.

The judgement does leave the JSC with some egg on its face though. It shows up the JSC decision not to pursue the complaint against Hlophe as a deeply flawed one and finds that the reasons provided by the JSC for its decision were clearly unjustifiable.

Recall that the JSC decided to dismiss the complaint (by the Constitutional Court judges) and the counter-complaint (by Judge President Hlophe) because the majority of its members were of the view that the evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP did not establish and, at a formal enquiry, could not establish that Hlophe JP had attempted to improperly persuade them to decide the cases in Mr Zuma’s favour. It found that Jafta AJ’s evidence alone could not establish grounds for a finding of gross misconduct and that the evidence of Nkabinde J which contradicted that of Hlophe JP was immaterial to the matter at hand.

The SCA found this latter finding of the JSC irrational as Hlophe JP contradicted almost everything that Nkabinde J said. It follows that the JSC considered virtually everything that Nkabinde J said, thus virtually everything on the strength of which she drew the inference that Hlophe JP tried to influence her, to be immaterial in respect of the question whether he tried to influence her.

It cannot conceivably, rationally be considered to be immaterial to the question whether Hlophe JP tried to influence Nkabinde J that Hlophe JP said, when making an appointment to see her, that he had a mandate, that, when he visited her, he said that the reason why he was there was that a concern had been raised that people in the Constitutional Court did not understand our history, that he said, when asked who those people were, that ‘he has connection with some ministers’, that he said that the question of privilege should be decided properly because the prosecution’s case rested on it, that Nkabinde J reprimanded him for speaking about a case he was not involved in, that he said that there was no case against Mr Zuma and that Mr Zuma was being persecuted, that he said that some of the people implicated in the arms deal whose names appeared on a list he had obtained from National Intelligence were going to lose their jobs when Mr Zuma became President. These were the facts which the JSC had to consider together with Jafta AJ’s evidence, to determine whether Hlophe JP attempted to influence them. Once it had been determined that he did attempt to influence them the JSC had to decide whether his attempt to do so constituted gross misconduct of such a nature that it may justify his removal from office.

The problem for the JSC was that in the absence of cross-examination of the witnesses, its finding and reasons for the finding just do not add up. As the SCA points out, the JSC applied the criminal standard applicable at the end of a criminal trial, namely proof beyond reasonable doubt, to dismiss the complaint, at a stage when neither of the conflicting versions of the two judges on the one hand and Hlophe JP on the other hand had been tested by cross-examination.

Although the finding that it could not reject Hlophe JP’s version was quite correct, this did not mean that no-cross-examination was required:

By disallowing cross-examination that result was made inevitable. It would have been highly irregular to reject his evidence without having given him an opportunity to cross-examine his accusers. Utilising this procedure for the final resolution of a complaint of misconduct by a judge will always lead to a dismissal of the dispute where the conduct alleged by the accuser is disputed by the judge because the judge’s version can never be rejected without having given him an opportunity to cross-examine his accusers. The procedure adopted was therefore not appropriate for the final determination of the complaint.

The requirement of proof beyond reasonable doubt (the only reasonable inference) was similarly not appropriate. Not even in a criminal trial is proof beyond reasonable doubt required before the trial has run its course and an investigation of a complaint of gross misconduct is not a criminal enquiry but more in the nature of a disciplinary enquiry where proof on a balance of probabilities is required at the conclusion of the enquiry

As many of us pointed out at the time, this reasoning of the JSC did not seem plausible. Courts frequently have to decide where the truth lies between two conflicting versions and they often do so where there is only the word of one witness against another and neither of the witnesses concedes the version of the other. Although a court may, after cross-examination, still be unable to decide where the truth lies, “that possibility does not entitle a court to decide the matter without allowing cross-examination and it does not entitle the JSC to do so”.

The only credible option open to the JSC is to re-open the hearing, to call all the appropriate witnesses and to allow cross-examination of those witnesses — including the judges of the Constitutional Court and the Judge President. This procedure was not followed and this led to the finding that the procedure used was unlawful. If cross-examination had been allowed, it would have put the JSC in a position to decide whether the version by Hlophe JP or the version judges of the Constitutional Court who made the allegations about his alleged attempt to interfere with their work was the correct one. Such a finding would, in effect, require it to decide who had lied in this case.

If the JSC now revisits the matter as required by the SCA and if it makes the appropriate finding about whose version is truthful after cross-examining the witnesses, one would assume that the party or parties who are found to have lied would then be found to have been guilty of gross misconduct, which would trigger a recommendation of impeachment. This process may well be painful for all concerned. But as the SCA pointed out, sweeping the question under the carpet is not in the interest of the judiciary, the administration of justice and ultimately the citizens of South Africa.

Should the President extend the term of the Chief Justice?

Mar 29th, 2011
by Pierre De Vos.
97 comments

Former Chief Justice Arthur Chaskalson is widely respected amongst lawyers and others who follow the work of the Constitutional Court. He was thought to be an excellent Chief Justice and during his term discussions started about extending his term as the head of the South African judiciary. To this end section 176(1) of the Constitution was amended in 2001. The amended provision of the Constitution 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.

At the time many constitutional lawyers argued that this amendment was unwise and opposed it. Some lawyers who respected or even revered Chaskalson had a problem with the amendment (generally known as the “Chaskalson amendment”) because it was argued that as a matter of principle it was unwise for politicians to be involved in extending the term of office of a judge — especially the Chief Justice.

The problem, so the opponents of the amendment argued, was that it could create the perception amongst ordinary people that the judge was not independent. Every time the judge ruled in favour of the government, suspicious or cynical commentators (and, let’s face it, that would include almost anyone in the media) would ask whether the particular decision had anything to do with the judge’s ambitions to continue acting as a judge. Where the judge happened to be the Chief Justice this suspicion would become even stronger.

In the event the amendment was passed and, in the same year, Parliament passed the Judges Remuneration and Conditions of Employment Act to give effect to the intention of this constitutional amendment. 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 President can therefore decide to extend the term of Office of the Chief Justice. In the end Chief Justice Chaskalson retired without these sections being invoked. However, it appears as if section 8 of the Act may now be invoked to extend the term of office of Chief Justice Sandile Ngcobo. Justice Ngcobo’s term as a judge on the Constitutional Court comes to an end later this year. He has only been Chief Justice for a short period of time and many would argue that it would be a pity if he had to retire now.

Justice Ngcobo has been an energetic and thoughtful Chief Justice and has initiated many important initiatives, including discussions about important changes relating to the creation of the Office of the Chief Justice. In order to secure the administrative independence of the judiciary, it has also been proposed to change the Constitution to emphasise the fact that the Chief Justice was the head of the entire judiciary.

I am therefore in two minds about moves to extend the term of office of the current Chief Justice. As a matter of principle I endorse the view that the Constitutional Amendment as well as section 8 of the Judges Remuneration and Conditions of Employment Act should never have been passed. It is not in the interest of the judiciary that the term of office of the Chief Justice may depend on a decision by the President.

Although the integrity of the current Chief Justice is beyond reproach and I do not believe that he will ever decide a case based on such considerations, every time the Chief Justice rules in favour of the executive, suspicious individuals might be tempted to speculate about whether this was done to ensure an extension of his term of office.

But perhaps a compromise could be reached that would allow for the extension of the term of office of the Chief Justice to allow him to complete important initiatives that would strengthen the independence of the judiciary, while minimising the damaging speculation in the media about his motivations in deciding a case in a particular manner. President Zuma should interpret section 8 to mean that an extension can only be granted once and must be for a predetermined period of, say, 5 years. When announcing the extension this should be made clear.

This will ensure that if the Chief Justice hands down a judgment in favour of the executive — based on his interpretation of the text of the Constitution, the relevant precedent, and his understanding of the social and economic context in which the decision has to be made — not even the most suspicious and ever-complaining members of our society will be able to charge that the decision was based on anything but legal considerations. This will protect the dignity of the Chief Justice and his office and will inoculate him from any scurrilous charges that he is not sufficiently independent.

In an ideal world, however, the original constitutional amendment as well as section 8 of the Judges Remuneration and Conditions of Employment Act should be scrapped. There were good reasons for the decision of the drafters of the Constitution to limit the term of office of judges of the Constitutional Court to between 12 and 15 years. These amendments subvert the original intensions of the drafters and creates the strange situation in which a Chief Justice could serve for 25 or 30 years on that court while other judges would normally be limited to a 12 year term.

We do not want to follow the US example where a President can decide on who to appoint to the US Supreme Court partly based on how young the person is and how long he or she may serve on that court. Those considerations have arguably subverted the appointment of US Supreme Court justices and the best candidates are not always appointed. (Of course, another reason for this is that the President’s nominees must be confirmed by the Senate and Presidents therefore also choose judges who they believe can be confirmed without too much fuss.)

In any event, it is important that President Zuma handles this matter with the necessary care.

The silence of Justice Mogoeng

Mar 16th, 2011
by Pierre De Vos.
49 comments

Does a judge have a duty to provide reasons when he or she expressly disagrees with aspects of a colleagues judgement when he or she sits on the same bench as that colleague? Does it matter when the disagreement is on a matter of legal principle that seems settled law? If a judge of the Constitutional Court indicates that he or she disagrees with certain views expressed by one of his or her colleagues, should that judge not provide reasons for this disagreement in the name of transparency and in order to foster a culture of justification?

After all, as the late Prof Etienne Mureinik argued in a brilliant and seminal article in 1994, our new constitutional order provides us with a bridge from a culture of authority to a culture of justification. Do judges of the Constitutional Court not have a special responsibility to justify their decisions so that legal academics, other members of the legal community and the public at large can analyse those reasons and — if appropriate — can critique the judgment of an individual judge and the reasons advanced for that judgment by the individual judge?

When we analyse and critique individual judgments handed down by judges of any court, this serves as an appropriate (if limited) mechanism to hold the judges of the court accountable. This does not mean that judges must or do change their views every time they are criticised by the public or by legal academics. But such critiques generate a dialogue (in which judges always have the final say) and hopefully this improves the jurisprudence of our courts.

In our system, not all decisions made by a judge requires the furnishing of reasons. For example, where the Supreme Court of Appeal declines to hear an appeal they are not required to furnish reasons for their decision in every case. But when a judge of the highest court in the land disagrees with a colleague on what seems to be an issue of trite law, but he or she does not furnish reasons for that disagreement, questions will inevitably be asked about the real motivation behind the disagreement and for the failure to provide a reasoned judgment which sets out the justification for the disagreement.

In the case of Le Roux and Others v Dey, the Constitutional Court judgment, which sharply divided between a minority judgment written by Yacoob J and two majority decisions (one written by Brand AJ and one written by Cameron and Froneman), the judgment is preceded by a summary of the various positions taken by the various judges in the case. What caught my eye in this summary was the short sentence in paragraph 9 of this summary which states that all members of the Court endorsed the exposition in the judgment of Froneman J and Cameron J about apology “and, save for Mogoeng J, regarding expression about constitutionally protected groups (paras 181 to 189)”.

Paragraph 181 of the Froneman and Cameron judgment states that:

It is correct, as counsel for the applicants emphasised, that Dr Dey found it objectionable that the image associates him with two men portrayed as engaging in same-sex conduct.  Counsel also emphasised that the Constitution discountenances anti-gay sentiments.  He suggested that Dr Dey’s claim should for this reason fail.

Paragraph 189 states that:

The image showed Dr Dey’s face on a naked body in a sexually compromising position, being photographed.  The affront this caused to his feelings is in our view actionable.  The wounded feelings relate to constitutionally sanctioned and protected personal choices, and are legally compensable.

My first impression of these two paragraphs is that anyone who embraces the constitutional injunction that one has to respect the equal dignity of all — regardless of the sexual orientation of the person — would have no problem with the content of these two paragraphs. I might be wrong, but these paragraphs do not seem particularly controversial — given the jurisprudence of the Constitutional Court on sexual orientation discrimination.

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 brief throwaway line in the court’s summary of the judgment quoted above therefore suggests that Justice Mogoeng does not agree with the long line of precedent on sexual orientation discrimination.

This perception may be wrong. I might have misinterpreted the meaning of the paragraphs quoted above. Besides, there may be very good reasons why Justice Mogoeng does not agree with the statement that our Constitution does not favour anti-gay sentiment. It may also be that Justice Mogoeng disagrees with the statement that choices about engaging in same-sex sexual behaviour are protected by the Constitution not because he does not respect the human dignity of gay men and lesbians but because of some other — as yet unstated — reason.

The problem is that Justice Mogoeng did not provide us with such reasons. There is no separate judgment provided to explain the position of Justice Mogoeng. It is therefore impossible to analyse or critique his stance or to say what motivated it. No one can say whether he or she ought to agree or disagree with Justice Mogoeng or with the other judges of the Constitutional Court.

Justice Mogoeng has in effect managed to avoid scrutiny of his views by the legal community and by the public. While this means he has avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy, there might be good reasons for this. But as these reasons were not provided, it is not possible to have an informed and reasoned discussion about it.

In the absence of reasons one may well wonder what Justice Mogoeng’s views are about the rights of gay men and lesbians protected by our Constitution. One may wonder whether he believes that the prohibition on unfair discrimination on the basis of sexual orientation enshrined in our Constitution should be ignored or subverted by the judges on the Constitutional Court and whether he believes that he is bound by the precedent set by the Court in a long line of previous cases. But as no reasons were given, one would not be able to engage in a reasoned and responsible discussion on this disagreement.

The fact is that we simply do not know why Justice Mogoeng declined to agree with the paragraphs quoted above. By not providing us with reasons for his disagreement, Justice Mogoeng has left himself open to criticism — not for expressing his views in a reasoned and careful judgment, but for not providing any reasons at all.

The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, has not been served by this silence. Justice Mogoeng has, in my opinion, therefore unwisely failed to embody the culture of justification demanded by our Constitution.

If Justice Mogoeng holds controversial views on the rights of gay men and lesbians (rights which are explicitly enshrined in our Constitution) it would have been better for everyone concerned if he had expressed these views in a reasoned judgment. Some of us might have unpacked and criticised these reasons and might have had harsh words about his views, but at least we would then have engaged in a reasoned dialogue about the values and principles of one of the judges on our highest court.

In the absence of reasons, no such dialogue is possible. In my opinion the South African public is not served by such a silence. Neither is the Constitutional Court or the judge who has declined to provide reasons for his disagreement with colleagues. It is surely always better to debate an issue on the basis of a reasoned set of arguments, than to leave things unclear and vague. Such a silence creates unnecessary suspicion and invites uninformed speculation about the motives and views of a judge.

Begging voters to vote for the DA

Feb 21st, 2011
by Pierre De Vos.
101 comments

First let us get the facts straight: the claim by Solidarity that one million of all economically active “coloured” South Africans in the Western Cape will have to earn a living in another province, while over one million “african” South Africans would have to relocate to the Western Cape province if the proposed amendment to the Employment Equity Act were to be implemented according to the letter of the law, is alarmist and wrong.

The Employment Equity Act, which regulates “affirmative action” (I prefer the term “corrective measures”) in the workplace, does not require employers to fire existing employees in order to achieve employment equity targets. One million economically active “coloured” workers will therefore not be forced to move to other provinces to find work in the near future. Section 15 of the Act states that  designated employers must take affirmative action measures which must include:

  • measures to identify and eliminate  unfair discrimination
  • measures that will make reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer and measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce.

These measures may include preferential treatment for certain groups and setting numerical goals for the attainment of targets, but cannot include quotas. This means that strict quotas, which guarantee a certain percentage of jobs for a certain race group, is not legally permissible.

In practice designated employers must draw up employment equity plans in which they set out the targets they wish to reach  over a specific period in each of the work levels in the company for each of the designated race groups (which are defined in the regulations in terms of apartheid race categories as being “whites”; “coloureds”; “indians” and “africans”). At present, section 42 of the Act states that in determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General of Labour must in addition to the factors mentioned above, take into account all other factors mentioned in section 42 which includes the:

(i) demographic profile of the national and regional economically active population;
(ii) pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees;
(iii) economic and financial factors relevant to the sector in which the employer operates;
(iv) present and anticipated economic and financial circumstances of the employer; and
(v) the number of present and planned vacancies that exist in the various categories and levels, and the employer’s labour turnover.

This means at present the Director General must evaluate an Employment Equity Plan by taking into account all these factors. He or she cannot only take into account the demographic profile of the economically active population in a province. He or she would also have to consider whether there are sufficient numbers of suitably qualified persons of designated race groups in that province to make appointment of such persons possible.

If the Director General is of the view that the Employment Equity Plan is not being implemented in accordance with the law, he or she can then order the employer to take specific steps to ensure implementation. If the employer fails to adhere to these instructions the employer can be referred to the Labour Court who can then make far reaching orders, including the imposition of fines on employers to ensure that they begin to comply.

In practice this means that many employers will try very hard to appoint or promote individuals from groups that are underrepresented. As the Director General must take into account the regional racial demographics when considering whether a company is compliant, this means that in the Western Cape employers will comply with the Act as long as they steadily work towards reaching employment targets that would include about 55% “coloureds”, 30% “africans” and 15% “whites” at all levels of their business. This can be done through promotion and new appointments but practical considerations — such as the availability of suitably qualified employees of under-representative  groups for appointment — will be taken into account and will “excuse” employers who have not managed to reach their targets.

In the public service many departments (including the police and the department of correctional services) do not take into account regional racial demographics. This makes it very difficult for a coloured persons in the Western Cape to be appointed as policemen and prison warders or to be promoted to higher ranks once appointed. It is far from clear that these policies as they are currently implemented comply with the Employment Equity Act. I suspect the proposed amendments are aimed at providing legal cover for this policy which, in effect, discriminates against black South Africans who happen to live in the Western Cape and happen to have been classified as “coloured” by the apartheid state.

The amendments to section 42 say that the Director General may, in addition to the factors stated in section 15, take into account a long list of factors including the “demographic profile of the economically active population” when deciding whether an employer is complying with the obligations udner the Act. There are two very important changes proposed here.

First, instead of having to take into account all the listed factors in section 42, the Director General may take into account one or more of the factors he or she chooses.  He or she may or may not take into account the demographic profile of the economically active population. He or she may or may not take into account the pool of suitably qualified people from designated groups from which the employer may reasonably be expected to promote or appoint employees or the economic and financial factors relevant to the sector in which the employer operates. The discretion provided for the Director General is frightening and gives him or her power to manipulate a finding to target specific employers even when such employers have valid reasons for not employing or promoting more african employees.

Second, when the Director General makes this finding, he or she could focus exclusively on the national demographic profile of economically active population and tell an employer that the employer is not complying with the Act – even if the employer can show that in the Western Cape the pool of suitably qualified “african” employees from whom the employer may reasonably be able to appoint or promote people to bring the employment profile in line with the national demographic profile of the country are not sufficient to reach such goals.

I suspect the current government practice as well as this proposed  amendment will be declared unconstitutional by the Constitutional Court. At the heart of the requirements for a valid affirmative action programme is the following dicta from the Constitutional Court in the case of Minister of Finance v Van Heerden:

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 a million “coloured employees will not be fired overnight as claimed by Solidarity, the new amendments, if adopted, will require – at the discretion of the Director General! – a radical and highly disruptive programme of affirmative acton that would make it almost impossible for a “coloured” person to be appointed or promoted in the Western Cape. This will place such a substantial burden on “coloured” South Africans living in the Western Cape that I would be surprised if our Constitutional Court would find this provision to be constitutionally valid.

Of course, regardless of the legal issues, as a political matter this proposal will come as a godsend to the DA in the Western Cape. It is as if the ANC is begging the majority of voters of the Western Cape to rather vote for the DA and not for it. Although the consequences of the amendments are not as dire as reported, they are still potentially pretty radical and the fact that some bright spark could have come up with this proposal without any regard for either its constitutionality or the political effects it might have and that this could then be approved by the cabinet perhaps demonstrate that the Zuma government is more clueless and rudderless than one might have thought.

Further reflections on academic criticism of courts

Feb 6th, 2011
by Pierre De Vos.
65 comments

Adv. Jeremy Gaunlett’s criticism of legal academics and of the Constitutional Court has elicited much discussion and debate. As I said before, such debates should be welcomed. In South Africa people in positions of influence and power (even academics with very limited influence and rather limited — or no — power) tend to be far too precious about criticism levelled against them.

It is not often that a lowly academic like myself get the opportunity to engage with the “ideas” of a person who is often said to be one of the most eminent and accomplished lawyers in South Africa. In my previous post, which was jotted down between sessions of a symposium which I was attending in Durban, I only touched on some of the problems with Gauntlett’s speech. I thought it might therefore be appropriate to re-read his speech and to engage more fully with it.

What forcefully struck me on a second reading of Gauntlet’s speech, is the rather cavalier manner in which the talk engages with the purported facts on which some of his criticism is based. One would have thought that a highly regarded advocate would get his facts straight and would not make misrepresentations on which he then based some of his criticism. Such tardiness suggests — rather ironically — that when Gauntlett stated that “it is time to end an approach which is insufficiently rigorous”, he was referring just as much to his own speech delivered to law teachers, than to the output of judges and legal academics.

Let me explain.

Gauntlett suggests that, apart from three academics he names, there has been no “probing critique” in the last five years of the work of the Constitutional Court. This is of course an absurd claim. Anyone who reads the various law journals will be familiar with the work of many academics who regularly criticise the judgments of the Constitutional Court on a wide variety of issues.

Admittedly, some of this academic work have a theoretical dimension and might be difficult to follow or to understand if one is not well read in legal theory or the social sciences. Some of it can also seem a bit abstract and can be pretty difficult to digest on a first reading. But this does not mean that the Constitutional Court is not regularly criticised — sometimes in rather intemperate language.

The highly critical articles about the Court’s sometimes shockingly inappropriate judgments dealing with gender issues comes to mind (I have counted 15 articles highly critical of the Volks v Robinson judgment, for example.) The large body of work — including book length manuscripts — which have criticised the Constitutional Court’s timid approach to social and economic rights could not have slipped anyone’s notice who have actually regularly read only one or two of the more prominent law journals. In the labour law field there has been serious criticism by several academics of the Constitutional Court’s eccentric reasoning in a line of cases dealing with jurisdictional issues.

This statement of Gauntlett therefore seems utterly bizarre and completely unrelated to reality — unless one assumes that what he meant was that academics did not criticise the Constitutional Court judgments in the way that he agreed with and in the ideological register with which he agreed. (This is a common problem among some  highly acclaimed practising lawyers who are perhaps a bit more enamoured by their own voices than is healthy and hence talk too much and read too  little in the field which they profess to be experts in.)

A second example of Gauntlett’s rather adventurous engagement with the truth can be found in the following passage:

the contrast for example between the House of Lords where the 12 Lords of Appeal in Ordinary on the last figures I saw 7 had on average 14 years of judicial experience before being appointed to that court; in Canada, 12 years; while in South Africa, fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court with the remaining five averaging four years judicial experience each. Can it be said that certain of last year’s appointments reflect a continuing disregard for discernible judicial excellence?

This statement is, to put it kindly, grossly inaccurate. If he is referring to judges appointed in 1994, he should surely know that Ackermann (10 years service), Goldstone (11 years service), Madala (2 years service), Mahomed (2 years service), Didcott (17 years service) and Kriegler (9 years service) had an average of 8.5 years experience as judges before joining that court. They joined Chaskalson, Langa, Mokgoro, O’Regan en Sachs, who had not served as judges before their appointment to the Constitutional Court.

But maybe he was referring to recent appointments. If he is referring to recent appointments, Gauntlett is shockingly ill-informed. Cameron, Froneman, Jafta, Khampepe and Mogoeng respectively had 15, 17, 8, 8 and 8 years judicial experience before joining the Constitutional Court. This is an average of about 10 years experience each. In other words, the learned advocate has based some of his argument on false statistics.

Gauntlett also complains about the output of the Constitutional Court. He points out that in 2008, the Constitutional Court heard only 22 cases while the Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006.

Well, this is a curious criticism. It can only serve as valid criticism if one assumes that the Constitutional Court judges should and could have heard more cases but did not do so because they were too lazy or slothful to hear as many cases as the their counterparts in Canada or the venerable House of Lords in the “mother country”. This could be a potent criticism of our Constitutional Court, but then one would have to ask how many applications for leave to appeal were heard by it and one would have to assess whether any of these applications for leave to appeal were turned down despite having a reasonable prospect of being successful.

In fact last year the Constitutional Court dealt with almost 120 applications for leave to appeal and eventually heard 30 of those appeals because it found that it was in the interest of justice to do so and — rather importantly — there was at least some prospect that the appeal would be successful. In the absence of an analysis of whether any of the cases not heard had any prospect of being successful, the criticism by Gauntlett makes no sense. At best it is lazy. At worst it may be dishonest.

Goodness, it is important to subject the work of all judges to serious and sustained criticism. This criticism may be of a technical nature (the kind of criticism that one can find in every edition of almost every law journal published in South Africa). The criticism may also be more relevant for the health and well-being of our constitutional democracy by focusing on the effects of individual judgments on the lives of ordinary people.

My view is that we have far too much of the former kind of criticism and not enough of the latter. Lawyers and legal academics steeped in formalistic legal discourse, often deal with the law as if ordinary people are not affected by the judgments of our Courts and as if doctrinal purity is far more important than “irrelevant” questions such as whether a judgment would cause ordinary people to lose their access to housing, would make it impossible for them to feed themselves and their children, or would allow the state or others to deny them their dignity.

(Of course, when the Court displays a concern for ordinary people, some academics held up by Guantlett as examples of what ideal academics should be doing, criticise the court for its “atavistic sentimentality” or – shock! horror! – “outcome-based” approach.)

Apart from an accurate engagement with the facts, what Gauntlett’s speech lack is any hint that these debates really affect human beings (as opposed to an acute awareness that it affects lawyers who earn a few million Rand a year).

Should Freedom Under Law appeal the Hlophe judgment?

Dec 23rd, 2010
by Pierre De Vos.
22 comments

A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is  constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state,  a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

Was this corruption, callousness (or both)?

Nov 30th, 2010
by Pierre De Vos.
42 comments

It is difficult not to wonder whether it was corruption or sheer incompetence and callousness that led to the unlawful decision by the Department of Mineral Resources to grant prospecting rights to a company called Genorah Resources on the land of the Bengwenyama-ye-Maswazi community. This community had been dispossessed of their land during apartheid but won back the land in a land claim. These are the kind of people whom politicians always claim to want to serve — victims of apartheid, poor but dignified — yet in this case they were not served but thoroughly screwed over.

Earler today, in the judgment of Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others, the Constitutional Court set aside the decision to grant prospecting rights over the community’s land to Genorah Resources, but the judgment leaves many questions still to be answered, not least of them being why both the High Court and the Supreme Court of Appeal refused to address the obvious injustice that had occurred in this case.

Why did the Department of Mineral resources hastily grant these rights to a company (Genorah Resources) without there having been proper consultation with the community who owns the land and without having given them a proper opportunity to apply for the rights themselves — as required by law? Did political connection play a role in the awarding of the rights and if it did, whose connections were decisive: that of the husband of the Minister of Science and Technology; those of a former  (or existing) ANC Youth League leader; or somebody else? And is there a connection to Julius Malema in all of this?

Genorah Resources is a mineral resources company with a portfolio of mineral rights and a platinum mining subsidiary, Nkwe Platinum (Pty) Ltd. One of the non-executive directors of Nkwe Platinum is Sharif Pandor, husband of Naledi Pandor. Sharif Pandor was a beneficiary of a deal put together by Brett Kebble and received almost a million Rand from Kebble. He is also a director of Blue Nightingale, whose co-directors include Andile Nkuhlu, a former ANC Youth League leader. Julius Malema is alleged to have made millions of Rand in tenders because of his shareholding in Blue Nightingale Trading (but I could not establish whether this is the same company as the one in which Mr Pandor and Nkuhlu are involved).

Oh yes, I almost forgot: the unlawful awarding of the prospecting rights happened in Limpopo Province, Julius Malema’s home base. It seems like a good case for investigative journalists to take up. Until they do, it is impossible to know exactly what happened with this deal and whether the decision by the Department was corrupt or “merely” callous.

In terms of section 104 of the Mineral and Petroleum Resources Development Act, the Bengwenyama community had a preferent right to be given rights to prospect or mine any mineral and land which is registered in the name of the community. However, in September 2006 Genorah was awarded prospecting rights over two properties, Eerstegeluk and Nooitverwacht, on which members of the Bengwenyama community reside while the community was in the process of attempting to exercise this preferent right. Why section 104 was ignored by the Department of Mineral Resources and why rights were awarded to a company with strong ANC connections remain a mystery.

How these people — who tried to wangle the Bengwenyama community out of its prospecting rights — can sleep at night, is also not clear to me. Maybe they have taken lessons from former State President PW (Die Groot Krokodil) Botha who famously told a journalist: “I never take a guilty conscience with me to bed.”

A representative of Genorah visited the traditional leader of the Community, Kgoshi Nkosi, on 3 February 2006 to try and obtain consent for Genorah’s own application for the rights. A representative of the company presented a letter in this regard for the Kgosi’s signature, but the attempt to gain support for this bid was unsuccessful and Kgoshi Nkosi never signed the letter. Kgoshi Nkosi wrote the following letter — rightly described by Justice Froneman  as “old-worldly and courteous” — to Genorah in reply, but never received a response:

Your letter that notifies us or rather consults us about your interest in our land had been received. As your letter requires us to enable you to comply with relevant provisions of the Act, as well as completion/filling of the form attached, we would like to advise that Bengwenyama-ya-Maswati would do that, once we know each other. For now, we don‘t know each other well. The form that you request us to complete, seems to be more binding, as it does not fall within the definition of our standard letter that we give to Companies that applies for similar rights.

Bengwenyama-ya-Maswati has an interest in the Property you applied for. We submitted an application for prospecting on three farms including Nooitverwacht 324 KT. The good luck wished to ourselves and other companies in an attempt of getting similar rights are also wished to your Company.

Meanwhile the community made an application for the prospecting rights during the same period that Genorah was trying to get the Department to award them the rights to prospect on the land concerned. However, the community’s initial application was faulty and exchanges between the community and the Department continued in attempts to rectify these defects. Meanwhile the Department awarded the rights to Genorah, but kept this secret from the Bengwenyama community. The Constitutional Court takes up the story:

What is surprising and perplexing is that during these continuing exchanges between the Community and Bengwenyama Minerals on the one hand and the Department on the other the Department made no mention of the fact that prospecting rights on the farms had already been awarded to Genorah. What is even more perplexing is that the prospecting rights were granted over the Community‘s land without any notice to the Community.

The Act requires consultation in regard to the granting of prospecting rights — also consultation with the owners of the land. These consultation requirements are indicative of a serious concern for the rights and interests of landowners and lawful occupiers in the process of granting prospecting rights. As the Constitutional Court pointed out, the granting and execution of a prospecting right represents “a grave and considerable invasion of the use and enjoyment of the land on which the prospecting is to happen”.

One of the purposes of consultation with the landowner was to see whether some accommodation was possible between the applicant for a prospecting right and the landowner insofar as the interference with the landowner‘s rights to use the property is concerned. This required the parties to engage in good faith to attempt to reach accommodation in that regard. Failure to reach agreement at this early consultation stage might result in the holder of the prospecting right having to pay compensation to the landowner at a later stage. Genorah did not comply with these requirements for consultation in terms of the Act, so the decision to grant the prospecting rights were set aside on this ground.

Because section 104 gave the community preferent rights to be granted a prospecting licence they also had a right to a fair hearing before anyone else was granted such a licence. This never happened and the community was never given a hearing, let alone a fair hearing. As Justice Froneman pointedly notes:

The Department was at all times aware that the Community wished to acquire prospecting rights on its own farms. It gave advice to the Community over a long period of time in this regard, to the extent of requiring better protection for the Community in the investment agreement. It continued dealing with the Community and Bengwenyama Minerals in relation to their application brought on prescribed section 16 forms without informing them of the fact that approval of that application would end their hopes of a preferent prospecting right. There is no explanation from the Department for this strange behaviour.

The Court therefore also set aside the decision of the Department because the community never received a fair hearing as required by the Promotion of Administrative Justice Act (PAJA) read with the provisions of the Mineral and Petroleum Resources Development Act.

The Constitutional Court was also less than happy with the manner in which the Department treated this community throughout the process in which Genorah and the Department set out to cheat deprive the community of their mineral rights. In remarks that hint that other factors might have played a role in this flagrant disregard for the rights of the community who owned the land, Justice Froneman remarked as follows:

They [the community] were not properly assisted in what was obviously an effort to acquire prospecting rights on their own property. Genorah was allowed to lodge financial guarantees late; they were not. They were not told of the grant of the prospecting rights to Genorah, which effectively put paid to their own application. Their internal appeal was responded to only after four months had elapsed. The Community was entitled to adequate notice of the nature and purpose of the administrative action that was proposed in relation to the Genorah application. It was entitled to a reasonable opportunity to make representations in relation to the Genorah application. Once the administrative decision was taken the Community was entitled to a clear statement of the administrative action. It was entitled to adequate notice of any right to a review or internal appeal. It was entitled to adequate notice of the right to request reasons in terms of section 5 of PAJA. It was entitled to reasons. None of this was done or complied with by the Department and, finally, the Community‘s appeal was ignored for four months before it was told to bring a review application in court. This is not the way government officials should treat the citizens they are required to serve.

The decision to grant the prospecting rights to Genorah was therefore set aside and the State and Genorah were ordered to pay the community’s cost. Although the Constitutional Court judgment is careful not to make any allegations that corruption may have occurred, its use of words such as “strange”, “perplexing” and “surprising” and its finding that Genorah was given preferential treatment (when the preferential treatment was legally required to be given to the community) all suggest that there might have been more to this case than mere incompetence on the part of the Department.

Hopefully our media will investigate exactly who owns and who manages Genorah and whether political connections might have influenced this scandalous behaviour on the part of the government. Whatever the true facts, what this case demonstrates is that the granting of prospecting rights is an area that is ripe for corruption and nepotism. Recent media reports of such rights having been granted to ANC front company, Chancellor House, supports this conclusion. And for the owners of farms over which such rights have been granted this case might suggest that if they were not consulted they have possible legal remedies to overturn the corrupt granting of prospecting rights, essentially by the ANC to the ANC.

On public opinion and the Constitutional Court

Nov 16th, 2010
by Pierre De Vos.
73 comments

I am in the process of writing a paper on the effect of public opinion on the decisions of South Africa’s Constitutional Court. Two preliminary questions arise. First, to what extent should public opinion inform the decisions of the Constitutional Court? Second, to what extent does public opinion in fact influence the decisions of the Constitutional Court?

Clearly, public opinion cannot be said to determine the outcome of each case that comes before the Constitutional Court. If that had been the case, the Court would never have declared the death penalty unconstitutional. Neither would it have ordered Parliament to extend the same rights and status enjoyed by heterosexual married couples to same-sex  couples who wish to formalise their relationships. Neither would the Court have found in favour of the right of prisoners to vote in elections.

However, some observers argue that public opinion does sometimes play — perhaps a difficult to define — role in the decisions of the Court. In S v Jordan the majority of the Court rejected arguments that a law that criminalised sex work but left the clients unpunished, unfairly discriminated against women — despite the fact that the vast majority of sex workers are female and the vast majority of the clients of sex workers are male. Did the opposition to sex work by the vast majority of South Africans not perhaps play a role in this decision?

And what about poor Mr Prince, whose right to freedom of religion (and hence his right to smoke dagga in conformity with the tenets of his Rastafarian religion) was not vindicated by the Court despite the fact that he forms part of a vulnerable and despised minority group?

In S v Makwanyane, the first case ever heard by the Constitutional Court, all eleven judges found that the death penalty was unconstitutional. One of the arguments placed before the Court to try and justify the imposition of the death penalty was that the vast majority of South Africans supported the death penalty and that this fact had to be given due consideration by the Court when deciding on such an important issue of public policy. Justice Arthur Chaskalson rejected this argument contending as follows:

The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence. Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

This is a difficult question to get one’s head around. As Justice Chaskalson pointed out, the Court has a duty to protect the “worst and the weakest amongst us”. If it merely followed the majority opinion on every issue, there would not really be any significant role for the Constitutional Court in enforcing the provisions of the Bill of Rights and the Constitution would become pretty meaningless. Public opinion therefore does not and should not dictate individual decisions of the Constitutional Court.

But the Court does not operate in a political vacuum and it is reliant on the support of others to ensure its long term institutional survival. It does not have an army or police force at its disposal and cannot raise taxes and hence its position can seem pretty tenuous. If it does not have external support from powerful forces in society, it may find it difficult to make its decisions “stick” or even to survive in tact as a relatively principles institution that protects those who cannot rely on the political process for protection.

Perhaps one way to understand the field in which the Constitutional Court operates, is to distinguish between different kinds of opinion blocks and to argue that the Court requires support from at least some of these blocks to safeguard its institutional independence and survival. While public opinion is not crucial, the opinion of all power blocks in society does and should play a role in the way in which the Court operates.

In a one party-dominant democracy like South Africa, one such block would be the political elites aligned to the governing party. Perhaps the unpopular death penalty and same-sex marriage decisions could be at least partly explained by the fact that the ANC and its allies supported these decisions — even though the vast majority of South Africans opposed it.

This does not mean that the Constitutional Court cannot make decisions that are not supported by the ANC. After all, the ANC does not operate in a political vacuum either. The ANC derives its legitimacy and its ability to govern the country with some authority not only from the fact that the majority of voters support it during elections. It also relies on the support (or at least acquiescence) of big business, an independent and free media, civil society, lawyers and other judges and the international community.

It is therefore in the interest of the ANC to accept decisions of the Constitutional Court when such decisions are supported by some of these groups or where these groups support the Constitutional Court as an institution and would defend its right to make decisions based on its interpretation of the Constitution. As long as these powerful blocks support the Constitutional Court as an institution, it is in the ANC’s own interest to respect the decisions of the Court – even when it does not support a specific decision of the Court. Unless the ANC is prepared to destroy its own legitimacy as a political party or unless it is prepared to sabotage the country for short term political gain (as happened in Zimbabwe) it has no other choice but to accept decisions of the Court that it does not agree with.

But this would only hold true if the Court has sufficient support from either the voters or from other  important power blocks. Surveys show that the Constitutional Court does not enjoy unqualified support from the majority of South Africans. Its institutional strength comes in part from support by civil society and other powerful blocks in our society. If it consistently handed down decisions that were legally implausible, displayed a naked political agenda and appeared unprincipled, the Court might lose support of many of these actors.

The Court may also strengthen its position by become more activist and by becoming a more adventurous pro-poor institution. The Supreme Court of India is often said to have gained much institutional legitimacy because of its interventions on behalf of the poor. It has taken on the state and governing parties and other powerful role players to help vindicate the rights of poor and destitute communities and has gained much popularity in the process. It would now be difficult if not impossible for the governing party to curtail the powers of the Indian Supreme Court.

If I am correct, it would be important for the Court consistently to hand down well-reasoned decisions that are legally plausible and progressive. It would also be important for the Court to avoid creating the impression that the Court has been captured by the governing party or by other powerful dominant forces in society (like big business or other elite interests).

Even if a specific decision might not be supported by the majority of voters or by the ANC elite, it might actually help to strengthen the institutional position of the Court as it might help to garner support from civil society, the trade union movement, the legal profession, big business or the population at large who might begin to see the Court as an independent and reliable institution who can deal honourably with complex and controversial issues outside the party political arena.

I suspect that judges will deny that they ever think about these issues. And it is far from clear that legal academic Theunis Roux is correct when he seemingly argues that Constitutional Court judges consciously veer between principle and pragmatism in order to secure the court’s institutional legitimacy. Yet, the jurisprudence of the Court suggests that the judges do struggle with finding a balance between respecting the power of the democratic branches of government while handing down principled and legally plausible judgments. Acutely aware that it is unelected, it does not want to become a co-governing branch of government. At the same time it understands that it has a duty to interpret and enforce the Constitution and that this might sometimes tread on the toes of the other branches of government.

What is a court to do? Handing down well-reasoned, credible and principled judgments that display some understanding of the history of our country and of the present social and economic context in which the Court operates, and shows sufficient concern for the plight of the poor, the marginalised and the destitute would probably be a good bet. Consistently handing down unprincipled judgment that will not be legally credible and will alienate it from civil society, lawyers, judges, the independent media and the majority of ordinary citizens in an effort to placate the ANC will probably be counter productive for the Court in the long run.

But maybe I am wrong. These are just preliminary thoughts and I would be interested to hear what the thoughtful contributors to this Blog have to say on the matter.

On punishing the poor for not paying rates

Nov 15th, 2010
by Pierre De Vos.
58 comments

Can middle and upper middle class people in South Africa demand better services from their municipality because they happen to contribute a larger portion of the municipality’s revenue than the poor? Put differently, can a municipality refuse to provide constitutionally and legally mandated services to a particular area because the people in that area are poor or even destitute and cannot pay the same rates and taxes than those who live in the more leafy suburbs?

Do we live in a dog-eat-dog world in which the rich and the politically well-connected can “buy” better services from the state, while the poor are left to their own devices and are forced to suffer or even die in silence?

This might sound like a set of ridiculous questions to ask. After all, in a constitutional state founded on the values of human dignity and equality, one would assume that the state would not be allowed to discriminate against the poor and marginalised merely because they do not pay the same amount of rates and taxes than the rich. (Of course, because we all pay Value Added Tax, which is a profoundly regressive tax, poor people usually contribute a larger proportion of their total income to taxes than the rich, but that is a story for another day.)

Yet, all over South Africa (whether an area is controlled by the ANC or the DA) middle and upper middle class people are often better served by the municipal, provincial and national government than the poor could ever hope to be. Schools in such areas mostly provide a better education to its learners, streets and parks are better maintained, refuse collection and other municipal services are superior and far fewer people are serviced by far better run police stations (although even these far better run police stations do not always provide a professional and effective service to the community).

There are many reasons for this unequal provision of services. In order to allay the fears of white South Africans and to prevent all of them from emigrating to Australia and taking their money and expertise with them, because many politicians live in these middle and upper middle class areas and send their children to the schools in such areas and rely on the police for protection in these areas (well, unless they are very important indeed, in which case they have their own VIP protection and blue light convoys), because tourists frequent these areas and their lives and safety are considered more important than the lives and safety of the poor and destitute, because of the deeply entrenched historical patterns of unequal spending which have not been addressed, because of the power and influence of the rich due to their access to (and influence on) the media and on the politicians who make decisions regarding resource allocation, because of all these and many more reasons poor people get social grants from the state (if they are lucky) while the rich usually get the better if not ideal services.

While politicians often talk about their deep concern for the plight of the poor and declare their undying love and respect for the poor, they have — as yet — not embraced a radical programme to shift spending on health, education, basic services and policing away from the privileged areas towards areas where poor people live. Some changes have occurred, but the radical shift required to create a truly fair and equitable society has not happened.

It is not often, though, that a politician is honest or stupid enough to admit this. One such politician is one JP Smith, who is the Mayoral Committee Member for Community Safety in Cape Town. (Two weeks ago I made a rather unflattering reference to Mr Smith’s physical appearance, which led him to phone me. He sounded close to tears, deeply hurt by my flippant comment. I shall therefore refrain from commenting on his appearance and will rather focus on the utter callousness and idiocy of his most recent statement.)

Mr Smith is quoted in this morning’s newspaper as refusing to deploy additional metro police units in Khayelitsha, as residents there “do not pay rates”. The Councillor is quoted as saying that he would not “squander more resources on the area” as this would mean taking resources away “from other areas where people do pay their rates”, and asks “why should a group of people who resort to violence be prioritised?” This was in response to questions arising from the inadequate police response to violent protests that have affected thousands of residents in Khayelitsha for the past month.

This statement, to put it mildly, cannot be describe as the politically most astute statement ever made by a politician. As a member of a party trying to overturn the perception that one’s party only caters for middle and upper middle class whites and that one’s party has no concern for the plight of poor Africans, this statement is about as wise as a statement by a German politician that the Holocaust never happened or that Hitler was not such a bad guy. Don’t the DA politicians go to a political school or a re-education camp – or something – where they are taught the basic rules about how not to alienate the vast majority of voters in the country?

The statement — if true — also displays a disturbing lack of respect for and understanding of the Constitution. Section 11 of the Bill of Rights provides that: “Everyone has the right to life.” Section 12 provides that: “(1) Everyone has the right to freedom and security of the person, which includes the right─ … (c) to be free from all forms of violence from either public or private sources”.

These provisions need to be read in the light of section 7(2) and 8(1) of the Constitution. Section 7(2) provides that: “The State must respect, protect, promote and fulfil the rights in the Bill of Rights.” Section 8(1) provides that: “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.”

In Carmichele v Minister of Safety and Security, the Constitutional Court confirmed that in some circumstances the inclusion of section 7 and 8 of the Constitution means that there would be a positive component to these rights which obliges the State and its organs to provide appropriate protection to everyone through laws and structures designed to afford such protection. This principle was further elaborated on in the Rail Commuters case where the Court, in a slightly different context, held that organs of state — which include municipalities — have a positive obligation to ensure that reasonable measures are in place to provide for the security of persons and the protection of their lives and their property as guaranteed by the sections of the Bill of Rights quoted above.

What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer — the closer they are, the greater the obligation on the duty-bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result. The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer. Thus, an obligation to take measures to discourage pickpocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb. A final consideration will be the relevant human and financial resource constraints that may hamper the organ of state in meeting its obligation. This last criterion will require careful consideration when raised. In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bald assertion of resource constraints. Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state will need to be provided. The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision-maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.

In other contexts, the Constitutional Court has stated that when considering whether the state has acted reasonably the particular vulnerability of those affected had to be taken into account. People who are poor (and hence do not pay as much rates and taxes as the rich) are particularly vulnerable and the state has a specific duty to take reasonable measures to protect them. They need more protection, not less, because they are poor and vulnerable and a municipality has a special duty to take steps to protect them.

I might be wrong, but I suspect that not many residents in Khayelitsha engage the services of ADT or Springbok security. I do know, having engaged the station commander of Harare Police station in Khayelitsha about their lack of action against known perpetrators of horrific homophobic violence against lesbians, that the services provided by my local police station in Sea Point (where Mr Smith happens to be the councillor) are far, far superior to those services provided by the police in Khayelitsha.

The people of Khayelitsha are particularly dependent on the state to protect them from the violent protests of others that disrupt their lives and threaten their well-being, their property and even their lives. The Police Service is not providing this protection and one would have hoped that the Metro Police — controlled by the DA City council — would step up to the plate and at least would try and assist in this regard. Because many of its residents are poor and cannot contribute as much to the rates and taxes of the city, the city has a more urgent duty to take steps to protect the people of Khayelitsha from harm.

A press release of he Social Justice Coalition underlines the urgency of the matter:

Since the protest action commenced, at least twenty vehicles have been stoned and set alight causing public transport to come to a halt for many weeks. Residents are being intimidated by protestors. A local fire station was stoned. Municipal services ceased to operate, leaving refuse to collect in the streets and pathways, posing significant health risks to residents. The fire department has been unable to respond to fires, leaving shacks to burn. Innocent bystanders have been shot at with rubber bullets by police responding to protests. Last week, a bus carrying school children was attacked with stones leaving several passengers injured, and there was an attempt to burn down a crèche. Another vehicle carrying unmarked exam papers was set alight. These are just a few incidents, which serve to illustrate how comprehensively the unrest has affected residents. The situation has intensified over the past week, and is now a serious crisis which requires an urgent response including specialised police units.

The DA itself has argued that these protests are not supported by the vast majority of the residents. The ANC ward councillor for the area has implied that the protests might be related to political jockeying for positions and that the actions are not supported or perpetuated by the vast majority of residents.

Yet, Mr Smith has decided that all the residents must be punished (for being poor and black and not voting for the DA?), because a small band of violent protestors have decided to take the law into their own hands. This must be done because the local residents do not pay as much rates and taxes as the rich people living in Fresnay or Bishops Court. In effect, Mr Smith believes that the DA City council has every right to punish poor Africans for being poor and for being part of a community in which some people are resorting to violent protests.

It does not take a rocket scientist to conclude that this is not a reasonable attitude (although it might take a person with at least a basic understanding of, and respect for, the basic human dignity of all people). If decisions about the allocation of policing resources are taken solely on the basis of whether the residents pay rates and taxes or not, the city council is patently acting in an unreasonable and unconstitutional way. The Constitutional Court has conceded that municipalities have some discretion to decide how they wish to allocate resources. For example, allocating more policing resources to protect tourists that bring in substantial revenue might offend our sense of what is wise or just, but it would probably not be found to be unreasonable.

But the amount paid by residents in rates and taxes can never justifiably determine whether they deserve to have their property and their lives protected or not. The fact that Mr Smith thinks that it can, is rather scary and suggests that Mr Smith has not embraced the fundamental values enshrined in our Constitution and that his continued services as a Mayoral Committee member for Community Safety in the city of Cape Town itself poses a threat to our democracy.

And there I was, listening to this guy telling me last week over the phone that he was really a soft and cuddly kind of do-gooder and almost believing him. How naive and gullible I can sometimes be.

← Earlier Posts Newer Posts →