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Constitutional Court

On the term of office of the Chief Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is not the end of the matter, though.

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

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

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

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

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

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

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

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

An easy solution to the Hlophe appeal problem

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Lady DA-DA and the shower head man

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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?

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