Constitutional Court

Why provinces have little real power but huge responsibilities

Aug 11th, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the appointment of a Chief Justice

Jul 29th, 2011

by Pierre De Vos.

49 comments

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

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

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

The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A ringing endorsement of judicial independence

Jul 29th, 2011

by Pierre De Vos.

5 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANC Chief Whip gets it wrong (again)

Jul 28th, 2011

by Pierre De Vos.

61 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

Government dropped the ball on Chief Justice

Jul 27th, 2011

by Pierre De Vos.

54 comments

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

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

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

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

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

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

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

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

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

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

What now for the Chief Justice?

Jul 19th, 2011

by Pierre De Vos.

61 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the Constitutional Seventeenth Amendment Bill

Jul 5th, 2011

by Pierre De Vos.

18 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jun 16th, 2011

by Pierre De Vos.

36 comments

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

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

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

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

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

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

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

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

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

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

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

A sense of justice and common sense needed

Jun 14th, 2011

by Pierre De Vos.

6 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judges must keep their cool

Jun 10th, 2011

by Pierre De Vos.

9 comments

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

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

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

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

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

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

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

COURT: It is not in the papers.

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

COURT: No, . . [intervenes].

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

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

MR CARLS: As the Court pleases.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Court

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On the appointment of a Chief Justice

A ringing endorsement of judicial independence

ANC Chief Whip gets it wrong (again)

Government dropped the ball on Chief Justice

What now for the Chief Justice?

On the Constitutional Seventeenth Amendment Bill

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

A sense of justice and common sense needed

Judges must keep their cool

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