Criticism of Courts

On changing the Constitution

Mar 23rd, 2012

Recent statements by politicians about the need to review the judgment of the Constitutional Court with a view to assess the need for changes to the Constitution, is often accompanied by assurances that the South African Constitution has already been amended 16 times. It is argued that the Constitution was a compromise document foisted on the people of South Africa by evil right-wingers, that the document has become a stumbling block to the effective governing of the country and hence has become a hinderance to the economic transformation of the country. Over the past year many ordinary folk, taking its cue from those talking about changing the Constitution, have taken up this whispering campaign against the Constitution.

There are two problems with this line of reasoning. First, the mere fact that the Constitution has been amended 16 times is irrelevant, as the number of amendments is not what is in issue. Rather what is in issue is the nature of any proposed amendments. Are they good for democracy and for the country or are they bad? Would they insulate the governing party from scrutiny when it flouts the law and the Constitution or would it enhance oversight and democratic accountability for any governing party? Would amendments rob citizens of their rights and their ability to have those rights enforced by the courts, or would it make it easier for citizens to enforce their rights? Would amendments hamper economic transformation by protecting the corrupt in government and the private sector, or would it advance transformation by ensuring open, accountable and transparent government with the requisite oversight powers for the courts?

What those who argue that the Constitution has been amended 16 times do not say, is that almost all of these amendments passed so far have been mere technical amendments of no real substantive or political effect. Where substantive amendments have been made, this has tended to weaken the Constitution and the checks and balances in it, instead of strengthening it, and as such was criticised by many in academia and civil society.

But most amendments have been entirely uncontroversial.

Thus the first amendment dealt with the oath of office to be sworn by the Acting President. Amendment two, inter alia, changed the name of the South African Human Rights Commission to that of Human Rights Commission. Amendment four was needed to confirm that a provincial legislature remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next legislature. The fifth amendment, inter alia, was aimed at allowing a proclamation calling and setting dates for an election of the National Assembly to be issued either before or after the expiry of the term of the National Assembly. And on it goes.

So far only four sets of amendments of some importance and political relevance have been made to our Constitution. The sixth amendment stated that the head of the Constitutional Court (and not the head of the Supreme Court of Appeal) will become the Chief Justice of South Africa and also provided for the extension of the term of office of a Constitutional Court judge by the legislature. The second part of this amendment was highly controversial as it potentially affected the separation of powers and the security of tenure of Constitutional Court judges and was vigorously opposed by academics and civil society groups. It did not help that Parliament unconstitutionally tried to delegate the power to extend the term of office of a Constitutional Court judge to the President, a provision that was first relied upon by President Jacob Zuma when he wanted to extend the term of office of former Chief Justice Sandile Ngcobo.

The eighth, ninth and tenth amendments were passed to introduce the highly contentious floor crossing provisions, which allowed members of national and Provincial Parliaments and Municipalities to cross the floor during two window periods — as long as more than 10% of the members of the party crossed the floor. These provisions insulated the ANC from floor crossing (as it would have required between 25 and 30 ANC members to cross the floor together) but decimated smaller parties where even 1 person could easily cross the floor.

In 2009, after the Polokwane conference and in the face of threats of factionalism within the ANC, the fourteenth and fifteenth amendments were adopted to abolish the floor crossing, thus protecting the ANC from possible floor crossing defections by the losing factions of party elections at national, provincial and local government level.

The twelfth and thirteenth amendments provided for the elimination of cross-border municipalities by changes to the boundaries of certain provinces. These were highly contentious as citizens living in KwaZulu-Natal and Gauteng did not want to be moved to worst performing provinces of the Eastern Cape and North-West respectively. Despite valiant efforts by the people of Matatiele and Merafong, and despite some promises made to the contrary before national elections, the ANC used its then two-thirds majority to force these communities into provinces they did not want to go to.

Every proposed amendment to the Constitution must surely be evaluated on its merits. Amending the Constitution is not per se a problem. Only those proposed amendments to the Constitution that will protect the governing elite at the expense of citizens or will undermine the very nature of our Constitutional democracy, will be problematic. Each proposed amendment will have to be judged on its own merit.

Which brings me to the second problem with this talk about amending the Constitution. Those who argue that the Constitution must be amended because the Constitution has become a stumbling block to the effective governance of the country and hence in effect prevents social and economic transformation, are rather vague about how the Constitution should be amended.

There seems to be two general arguments circulating and being whispered about in this regard. First, some among us are upset that the courts can review and set aside decisions by the President, other members of the executive and other organs of state, when such decisions are not authorised by the Constitution or the law, do not comply with the Constitution or ordinary law or when these decisions are not rational (in other words, when the decisions are arbitrary, made in bad faith or capricious). This argument is based on the premise that those in government should not be bound by the law and should, in effect, be above the law.

For example, if the Constitution or an ordinary piece of legislation requires the President to appoint a “fit and proper” person to a position and he then decides to appoint somebody to that position who has been found guilty of corruption or murder, so the argument goes, it is not for the non-elected members of the judiciary to declare such an appointment invalid merely because the appointment did not meet the minimum requirements set by the law.

Such an argument is no more than an argument for lawlessness. Of course, in such a case there is nothing that prevents the legislature from amending the relevant legislation (or the Constitution – if the requisite majority can be mustered to do so) to abolish the requirement that only a “fit and proper” person should be appointed to the job. What cannot ever be accepted in a constitutional democracy, is a situation where the law and the Constitution can be flouted at will, with no recourse open to the courts to check this flouting of the law.

A second argument is made that the Constitution is a compromise document agreed on by the Constitutional Assembly in line with the 34 Constitutional Principles contained in the interim Constitution and as such lacks legitimacy because it contains many anti-transformation provisions.

Of course, the interim Constitution contained a provision that would have allowed the final certified Constitution to be submitted to voters in a referendum if two-thirds of the members of the Constitutional Assembly could not agree on the text. If at least 60% of the voters approved of the draft Constitution in a referendum, it would have taken effect. The ANC and the NP both avoided this by agreeing on the text. The fact that a referendum was never enforced suggest that the ANC was worried that its version of the Constitution would not obtain a 60% majority in a referendum. Instead both parties, after extensive public participation, agreed to a document which it could live with – although almost all commentators have since argued that the ANC out negotiated the National Party and secured a Constitution that was far closer to its original plans than they could have dreamed about.

In any case, it is unclear which provisions of the Constitution hinders social and economic transformation in South Africa. The property clause is often singled out in this regard, but as I have pointed out several time before that section does not require a “willing-buyer willing-seller” land reform process. Neither does it require the payment of market value for all land expropriated for purposes of land reform. Those who claim that the Constitution obstructs social and economic change has not yet been able to point to any other provisions in the Constitution that mitt be objectionable. This is probably because there are none.

Ours is not an exclusively liberal Constitution. Although it contains a system of government based on the separation of powers and checks and balances as well as all the traditional liberal human rights like freedom of expression, it also contains a set of social and economic rights that places a positive duty on the state to take reasonable steps to provide better and more expansive access to housing, health care, education and other social and economic rights. Moreover, the Constitution applies, to a large degree, horizontally also binding private individuals and institutions like businesses. This aspect is based on the view that the human rights of an individual can be trampled on not only by the state but also by powerful private interests and by individuals.

My question would be: which sections of the Constitution exactly are those that hinder transformation? In my view there are no such sections to be found in our Constitution. Those who argue that it might be time to amend the Constitution to effect social and economic transformation need to say which sections they find objectionable. We can then have a sensible debate about this question. In the absence of such clear proposals and arguments, the mutterings and whispers about the need to change the Constitution can be treated as ill-informed and self serving drivel by those who are seeking a scapegoat to avoid accountability for governance failures over the past 18 years.

My challenge to those who whisper and grumble about the need to change the Constitution is this: either put your cards on the table so that we can debate the issue or stop your self-serving campaign to discredit the Constitution. In the absence of concrete proposals one will have to assume that those who talk about changes to the Constitution are not interested in the well-being of South Africans, but rather in retaining power and access to tenders by scapegoating the Constitution.

Another brilliant idea by our political youngsters

Mar 2nd, 2012

by Pierre De Vos.

123 comments

Criticism of members of the judiciary and the supposed “undemocratic” nature of our constitutional system with its supreme Constitution, enforced by an independent and impartial judiciary, is intensifying.

This is not surprising.

In a one-party dominant democracy in which access to state power also potentially provides undeserved access to immense financial wealth, acquired legally or illegally through the tender process or through high-end government jobs (with its accompanying perks), independent institutions (especially powerful independent institutions staffed by people of integrity) can easily be seen as a mortal threat to the acquisitive ambitions of the looting classes.

In order to maintain their political dominance and in order not to lose all legitimacy in the eyes of ordinary citizens, the looting classes need to draw a veil over their venal actions, by uttering platitudes about their abiding concern for the poor (on whose behalf they so enthusiastically sip champagne) and by expressing concerns about the slow pace of transformation and the “undemocratic” nature of those independent institutions that stand between them and the enjoyment of immense wealth and, perhaps as an afterthought, political power.

After all, no one wishes to spend 15 years in jail (or, in a best case scenario, a few years in a prison hospital), so it is imperative that the “right” person heads the National Prosecuting Authority and the “right” person heads the office of the Public Protector in order to immunise the looters from criminal prosecution for corruption. And of course, it can turn into a terrible bother when cheeky judges declare invalid an Act of Parliament or an appointment of the President, especially when these judgements threaten to destroy the carefully crafted legal mechanisms and structures put in place to protect the political leadership and those who are close enough to the leadership to benefit financially from an emerging kleptocratic state.

It is therefore tempting to dismiss all the talk of a review of the powers of the courts and the expressed yearning for a return to a system of parliamentary sovereignty in which Parliament would be able to make any law – no matter how drastic it infringes on the rights of ordinary voters and no matter how much unbridled power it grants to any of the politicians who “serve” in the Executive – as nothing more than the self-serving attempt at grabbing and consolidating unchecked power.

But this would be wrong. Given South Africa’s apartheid history in which the vast majority of citizens were disenfranchised and given the general distrust in legal processes and in members of the judiciary amongst many voters, arguments about the essential undemocratic nature of judicial review may well have some traction amongst ordinary voters who may not realise that the judiciary – for better or for worse – can (at the moment, at least) probably be trusted far more than can the politicians for whom we vote out of a sense of nostalgia for a better time (that might never have been) and out of a fear of a return to white domination and oppression.

So when the Young Communist League issues a statement demanding that judges become accountable to “the people”, one may take it slightly more seriously than one would normally have done. The statement makes for fun reading, so I quote a sizable part of it here:

We have recently called for the transformation of the judiciary as part of our National Lekgotla resolutions and have stated strongly that our judges are not perfect and that since they are human; they are bound to err, to be biased and influenced by various social and political ambiances… [W]e have found it to be our revolutionary duty to highlight that the members of the judiciary must in exercising their duty understand and respect the political authority of the legislature and the executive; as the powers vested in them are mandated and legitimised by members of society through a democratic process enshrined in our constitution.

We have called for a judiciary system that is accountable to the people and that we will campaign for amendments in the Constitution for the judiciary to be subjected to popular and democratic elections. If the judiciary, like the other branches of government serves the public, then the public must determine who should serve in such offices at all levels of the judiciary.

There are judgements that necessitate that the judiciary be transformed as they leave much to taste relating to transformation of our state and society; it cannot be normal that the courts serve as stumbling blocks of transformation and hide under the protection of the media. The judiciary is not immune from public scrutiny and its independence should never be elevated above the other branches
of government which are democratically elected by the people and are accountable to the people.

Unfortunately the young comrades did not provide any examples of specific judgments of, say, the Constitutional Court, which might have left “much to taste” and which might have acted as a stumbling block to transformation (however defined). Perhaps it has in mind the Mazibuko judgment (which I had previously criticised) where the Constitutional Court endorsed the “pay-as-you-go” water policies of the City of Johannesburg – despite the fact that section 27(1)(b) of the Constitution guarantees for everyone the right of access to water.

But that policy was implemented, as I said, by the democratically elected City Council of Johannesburg (run by the ANC, who is in alliance with the Communist Party) in line with the water policies of the democratically elected national government (a government in which Communist Party serves and whose perks – including long stays in the Mount Nelson and revolutionary free travel to Cuba – its leader seems to enjoy rather a lot). It is therefore unclear how the election of judges would make such judgments more “transformed”. The case nicely illustrates that the problem is not the judges at all, but rather the neo-liberal policies of the very government in which the Communists continue to serve and continue to benefit from.

The problem is that the voters have actually elected this government who has implemented these anti-transformation policies. One can never trust the bloody voters to do the right thing, ne? What is needed, so it seems, is to take a leaf out of the book of Berthold Brecht, and demand that the electorate be replaced. In his poem, The Solution, Brecht mocked an unnamed Communist regime’s pretensions to being democratic in the following manner: “After the uprising of the 17th June/ The Secretary of the Writers Union/ Had leaflets distributed in the Stalinallee/ Stating that the people/ Had forfeited the confidence of the government/ And could win it back only/ By redoubled efforts./ Would it not be easier/ In that case for the government/ To dissolve the people/ And elect another?”

Perhaps the young comrades also did not realise that in a constitutional state (in which the judiciary is required to interpret and enforce the Constitution and thus to check the power of the other branches of government to ensure that those branches do not abuse their power or infringe on the rights of citizens), elected judges would be superfluous. Why have another elected branch of government if that branch is going to do no more than confirm the policies (like the neo-liberal policies around the pay-as-you-go supply of water) devised by the other elected branches of the state.

But, to be fair, at first glance I did not realise how brilliant this plan might turn out to be. As the young comrades pointed out, the problem with judges is that “they are bound to err, to be biased and influenced by various social and political ambiances”.

Goodness, I for one would not want to have any case about the constitutionality of an act by the President heard by judges influenced by various social and political “ambiances”. That is why the election of judges might turn out to be a brilliant idea. After all, at present the other branches of government are staffed by elected officials and we all know that they never err, that they are never biased and that they would never think of being influenced by social or political “ambiences”. No one who has ever attended a debate in the National Assembly would be able to deny that these elected representatives are always impeccable objective and diligent and that their decisions are always correct and never influenced by the wrong kind of “ambiences”.

Who would not want to take their chances in court with an elected judge – as long as that elected judge demonstrates the high degree of objectivity, and the unfailing ability always to make the correct decision, for which our members of Parliament are so well known (give or take a hundred or so Travelgate crooks).

I only have one question: how are we going to protect these elected judges from exposure to social and political “ambiances”? Oh, of course, we only need to lock them up where they can be kept safe from the corrupting influences of the Sowetan and the Mail & Guardian and ETV News to keep them safe from such dangerous influences. Then we can wheel them out whenever a show trial, I mean a constitutional decision, demands it. That will leave plenty of time for the well-connected to loot the state and to spend their money on worthwhile projects – like champagne drinking appreciation classes, visits to drug mule girlfriends in foreign prisons and attending revolutionary parties organised by Kenny Kunene or the intellectual heirs of Brett Kebble.

PS: Apologies for the frivolous nature of this post. I just could not resist it.

Mixed signals on the review of our courts

Feb 29th, 2012

by Pierre De Vos.

105 comments

The government yesterday sent mixed signals about its previously announced intention to “review” the decisions of the Constitutional Court when it released a “discussion document” which (laudably) affirmed its respect for the independence of the judiciary and the notion of the separation of powers, but (worryingly) seemed to question the wisdom of retaining a distinctly adversarial system of judicial review.

This antagonism towards an adversarial kind of judicial review seems to be focused primarily on cases where the courts were not enforcing social and economic rights and where the judicial review of government action would signal a failure on the part of the judiciary to “co-operate” with the other arms of government in pursuit of (unnamed) constitutional values or goals.

Speaking at a media briefing yesterday, Minister of Justice Jeff Radebe announced the release of a discussion document on the transformation of the judicial system and the role of the judiciary in a developmental state (Pdf document) to frame a “national dialogue” on this programme of “further transformation”. These documents are conceptually incoherent and its authors seem to be confused, as it tries to marry a consensual model of separation of powers with a model that retains (some form of) judicial review for an independent judiciary. One cannot have both a consensual model of separation of powers and an independent judiciary that acts as a true check on the exercise of power by the other branches of government. Suggesting that one can, is at best misinformed and at worst misleading.

This conceptual confusion probably flows from the fact that the government of the day is retreating slightly from its position taken in November last year about the need for a serious review of Constitutional Court decisions. This retreat might have been caused by the public outcry about the perceived intention of the government to interfere with the powers of the courts to review and set aside acts by the other branches of government.

It might also be animated by the sinking realisation that both the proposed review of the Constitutional Court and any possible amendments to its powers will be impossible to implement. After all, who will actually be able to peruse all the documents before the Constitutional Court in every single case ever heard by that court to make a sensible assessment of its performance? And in the absence of such a wide ranging perusal of all relevant documents, any review of the Court will be nonsensical and meaningless as it will not tell us anything about whether the court fulfilled its mandate (or whether it was, for example, hampered in its task by the tardiness of the lawyers who appeared before it or the dismal quality of the papers before it).

The discussion document talks about a need for “further transformation of the judicial system”, but fails to indicate what such further transformation would be aimed at or how it might look. The review clearly does not relate to the current package of constitutional amendments and laws before Parliament aimed at streamlining the courts and enhancing the powers of the Chief Justice. This is because the Minister stated that the current reforms will be finalised before the review is actually concluded. It is therefore unclear what “further transformation” (over and above the current package of amendments and Bills) is envisaged by the government. However, answering questions at the media briefing yesterday Minister Radebe refused to rule out further amendments to the Constitution, suggesting that the government is keeping its options open and that the outcome of this review will depend on which faction in the cabinet gets the upper hand.

In the discussion document and in the speech delivered by the Minister at the media briefing, the government re-affirmed the longstanding commitment of the ANC towards the respect for human rights. The Minister also stated that the envisaged further transformation of the judiciary is underpinned by the separation of powers and an independent judiciary.

Arguing that the values contained in the Constitution – including that of an independent judiciary and the rule of law (but significantly not including the supremacy of the Constitution and judicial review) – are also the values that the ANC has consistently stood and fought for, the Minister stated that the ANC-led government would defend these values at all cost. The Minister recognised that the judiciary had an important role to play in transforming the state and society and in safeguarding and protecting the Constitution and its values through its “constitutionally entrenched judicial authority”.

However, it is not as clear from the Minister’s speech as it should be that the ANC-led government’s continued commitment to the separation of powers and an independent judiciary includes a continued commitment to the principle of the supremacy of the Constitution and the powers of the courts to review and declare invalid not only those provisions of legislation which are in conflict with the Constitution, but also those actions by the executive which infringe on human rights, are not authorised by law or fail to comply with the requirements of rationality and non-arbitrariness which are inherent in a system based on respect for the Rule of Law.

In fact, it is clear that the government is at best uneasy with the notion of an independent Constitutional Court that acts as a vigorous but necessary check on the other branches of government. It would prefer a court that works with government to achieve a common goal – rather than a court that vigorously and in an “activist” manner checks the powers of the other two branches of government and embarrasses the legislature and especially the executive by sometimes declaring some of their actions unconstitutional and invalid.

Judges, suggested Minister Radebe, must exercise their power of judicial review “with great circumspection”. The three branches of the state, claimed Minister Radebe, “are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa”. Whether this would mean that one branch – the judiciary – would retain the necessary power to trump the other branches when those branches failed to act in compliance with the Constitution or ordinary law (and hence would retain the power to declare invalid unconstitutional laws and unlawful and unconstitutional acts by the President and other members of the executive), is not as clear from this statement as it should have been.

To be fair, the discussion document affirms that the modern concept of constitutionalism rests on two main pillars:

First, the existence of certain limitations imposed on the state, particularly in its relations with citizens, based on certain clearly defined sets of core values. Secondly, the existence of a clearly defined mechanism for ensuring that limitations on the government are legally enforceable. In this broad sense, constitutionalism has a certain core, irreducible and possible minimum content of values with a well-defined process and procedural mechanisms to hold government accountable.

As the discussion further notes, there are some debate about the degree to which judges should be empowered to “interfere” with the decisions of the other branches of government:

Striking a balance between policy and law becomes necessary in the current times where courts are increasingly placed in a situation where they have to pronounce on matters of public policy. The interface between the courts’ power of judicial review and the policy terrain that is the purview of the Executive and the Legislature becomes even more delicate in the South African situation where the Constitution enshrines a justiciable Bill of Rights. It is in this context, in particular in the interpretation of the socioeconomic rights in the Bill of Rights, that judicial power should, by necessity, be vested in a mechanism independent of the legislative and executive powers of the government, with adequate guarantees to insulate it from political and other influences.

The government seems to have realised that – as a matter of practical politics and constitutional design – it will not be possible at present to address its unhappiness with the courts who strike this balance differently than the government would have wanted them to, as the government will not be able to reduce the powers of the courts to review and set aside unconstitutional or other unlawful acts by the legislature and the executive.

Instead, there are passages in the document which suggest that the government is hoping that it will be able to water down the independence of the judiciary by creating mechanisms that will help to break down the strict separation between the judiciary on the one hand and the other two branches of government on the other. The conceptual incoherence comes to the fore in these passages which, quite frankly, I find rather frightening. This is because the passages suggests a fundamental lack of understanding and/or respect for the separation of powers and the system of checks and balances in a constitutional democracy. The document thus makes the following extraordinary claim:

The importance of the legislative, executive and judicial branches of the state to cooperate and act interdependently in exercising their distinctive constitutional obligations for the common good of the country cannot be over-emphasised. Government must function as an integrated, singular unit in pursuit of the vision set out in the Constitution. Formidable state machinery, acting in unison, is a requisite to overcome the colonial and apartheid legacy of inequality, and the deprivation of the majority of our people. The principle of separation of powers envisages a system of mutual co-existence and interdependence by all three branches of the state.

Of course, if the three branches were to act in complete unison as an integrated singular unit “for the common good” (a common good defined by those politicians who happen to be in power), it would be difficult to see how one branch of that government would consistently declare invalid the acts of the other branches of the government with which it works in unison. At best the branches will debate the constitutional issues at stake beforehand and the two political branches will alter course to ensure compliance with the Constitution. At worst the two political branches will be able to prevail politically on the judiciary to re-interpret the provisions of the Constitution to give the legislature and executive more leeway to do as they please.

This vision of the three branches all working as an integrated whole towards a common goal (defined by the political party in government) therefore seems to be at odds with a modern notion of a separation of powers in a constitutional state in which the courts retain the power vigorously to check the power of the other two branches of government. The document quotes from a chapter in a Canadian Law Commission Report entitled “Interdependence not independence: Institutional and administrative dimensions of judicial independence”, written by Richard Simeon to support its view. Simeon argues for the need for interdependence and the collegiality of effort for the effective coordination and consolidation of programmes of the state towards a common vision. With reference to the American Constitution (but not in line with the South African jurisprudence) Simeon makes the claim that no clear lines can be drawn between the branches of government:

The doctrine of separation of powers is often invoked to justify the institutional independence of the Judiciary. But sometimes forgotten is the other core of the principle of the US Constitution, checks and balances. The American constitutional design does not envision the three branches as existing in splendid isolation from each other. Rather, tyranny is avoided by having each branch check and balance each other – in other words to be interdependent. The relationship among them is indeed ‘indelibly political’. A blend, as a US judge puts it, of ‘separateness, but interdependence, autonomy, but reciprocity’. At any time there is a dialogue, or negotiation with the other branches about… budget, jurisdiction, size, procedures, and administration.

What the document fails to say is that the chapter from which it quotes was written by a political scientists (and not a judge or a lawyer) and that the author introduced his remarks by saying that he was talking as someone concerned with public administration, a person who believed that the constitution was not of much help in any discussion about the relationship between the branches of government. It also does not mention that this view flies in the face of the view taken by the Canadian Supreme Court (which is indeed staffed by real judges, not political scientists) in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) judgement, a case in which that court made the following statement directly at odds with the views expressed by the discussion document:

under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. … The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration….

What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.

In the light of the above the proposal in the document regarding the closer co-operation between branches and the need for the branches to engage with one another in order to co-ordinate its activities so that it can operate as a single unit, is deeply troubling. The following proposal is therefore a non-starter and any judge – including the Chief Justice – who values judicial independence should reject it out of hand. The document namely proposes that one aim of any review would be to facilitate:

the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to benefit society at large.

Of course these proposals are not only conceptually incoherent, and in conflict with the understanding given to the separation of powers by judges and lawyers in other modern democracies, they are also doubly problematic in a country like South Africa with a one party dominant democracy in which the legislature and the executive (as well as the institution tasked with appointing judges) are dominated by one political party and where there is little chance that another party will take control of these branches of government or of the JSC in the medium to long term. In a one party dominant democracy, a proposal for the creation of mechanisms to allow for “debates” between the three branches of government, is a proposal to infuse party political concerns into the relationship between the three branches of government.

While the decisions of judges cannot be divorced from politics and while many judicial decisions will have political consequences, the infusion of party politics in the relationship between the legislature and executive on the one hand and the judiciary on the other will render a fatal blow to the principles of respect for the separation of powers and the independence of the judiciary as it will lead to an inevitable exertion of political pressure on the judiciary – as the Canadian Supreme Court warned so clearly.

The question that arises from this discussion document is the following: will the leadership of the judiciary go along with the proposals to infuse party politics into the relationship between the three branches of government or will they resist and fight for their independence and for their constitutionally conferred power to check the other two branches of government?

Why so little trust in the judiciary?

Feb 28th, 2012

by Pierre De Vos.

48 comments

In 2006, several years after the disastrous invasion of Iraq by the US military, a survey found that almost 50% of Americans believed that Iraq had weapons of mass destruction when the U.S. invaded that country. This belief was false as no weapons of mass destruction were ever found. In the same year Rick Santorum, who is running neck and neck with Mitt Romney in the nomination for the Republican Party’s Presidential candidate, also claimed that the US had found weapons of mass destruction in Iraq after its invasion of that country.

A poll of South Carolina voters conducted by Winthrop University last year showed that only 24 percent of Republicans and Republican-leaning independents in that state believed President Obama was “definitely” born in the United States. (Obama was born in Hawaii which became part of the US about 60 years ago.) Only one in three of those same voters correctly identified Obama’s religion as Christian. Nearly the same proportion, 29.5 percent, believed that Obama is “Muslim.”

It should therefore come as no surprise that South African’s views on the impartiality of the judiciary and its transformation are, at best, mixed. Like its US counterparts, large numbers of South African voters seem to be ignorant and superstitious. The survey, conducted by TNS, found that only 31% of respondents in metro areas of South Africa believed that the judiciary is impartial and unbiased while 31% felt exactly the opposite. A very large number of respondents – 38% of them, in fact – indicated that they did not know whether the judiciary was impartial and independent, suggesting a large amount of ignorance or at least uncertainty amongst South Africans about the judiciary.

It is perhaps also not surprising that 38% of respondents agreed with the statement that “judges were biased towards the government”, while only 27% disagreed. The “don’t know” response was again very high at 36%. Given the relentless attacks on the judiciary by some members of the ruling party (and, it must be said, given attacks by Helen Zille on the credibility of some judges) and given the fact that the government often loses cases before the courts because of criminally bad legal advice or even worse legal representation, and given the electoral dominance of the ANC, I am surprised that the number of people who believe the courts are biased against the government is not higher.

People who do not follow the finer technical legal points of judgments and never read court judgments – depending on the SABC or on The Voice for its information about the judiciary instead – would be forgiven for equating the many legal defeats of the ANC-led government (or the DA-led Provincial government in the Western Cape) with “bias” on the part of the judiciary. In the absence of reasoned analysis about why a law was declared invalid or why an act by the President, Premiers or cabinet ministers were declared invalid, and without a deep appreciation of the principle of constitutional supremacy, a ruling against any ANC or DA politician or ANC or DA-dominated body could easily be confused with “bias” on the part of judges.

I find it surprising that only 38% of respondents indicated that they believed the judiciary was biased. This means that many supporters of both the ANC and the DA who might be upset that “their” government has lost yet another case nevertheless believe that the judiciary is impartial and independent.

Unfortunately the survey did not distinguish between the Constitutional Court, High Courts and magistrates’ courts. Previous surveys were interesting in this regard as it indicated a much higher level of trust in the Constitutional Court – especially amongst black South Africans – than in other courts in South Africa. It is therefore unclear whether attacks on the Constitutional Court by members of President Zuma’s inner circle and by supporters of Judge President John Hlophe as well as the ugly spat about the appointment of a new seemingly under-qualified Chief Justice have not taken a toll on the credibility of the Constitutional Court.

I would guess that these attacks and controversies might well have taken its toll on the image of our highest court. This is because ordinary members of the public do not study the many pro-poor and pro-transformation judgments of the Constitutional Court and might be unaware of the fact that the Constitutional Court often rules against the powerful and in favour of the socially and economically marginalised. It also does not help that the SABC and other news media do not always report in sufficient depth about these rulings.

For example, a few months ago in the Blue Rout Trading case the Constitutional Court ruled in favour of inner-city residents of Johannesburg who were going to be left homeless after eviction by a private company. This made the City Council of Johannesburg very unhappy but was an unashamed pro-poor and pro-transformation judgment, suggesting that the anti-transformation impulses in this case emanated from the ANC-led Municipality and not from the Constitutional Court.

Interestingly, the issue of transformation yielded a 42% “don’t know” response with 34% of metro adults feeling that there has not been enough transformation in the judiciary and 24% feeling that there has. The question is of course what the respondents understood with the concept of transformation. Did they understand the term to mean a change in the racial (and – as an afterthought – the gender) composition of the judiciary or did they understand the term to mean the appointment of judges infused with progressive values enshrined in the Constitution?

If respondents understood transformation in its first meaning, then their perception was clearly mistaken. All leadership positions in the judiciary are now filled by black judges and only about 40% of judges remain white. Of course, in High Courts and on the Supreme Court of Appeal there are many judges (black and white, male and female) who are deeply conservative, pro-big business and anti-gender equality, so if one has a broader understanding of transformation the respondents to the survey who felt that there was insufficient transformation on the bench might well have a point.

Despite these explanations, it must be worrying that so many South Africans either have no opinion or believe that judges are not impartial and independent. This suggests that any attempts by politicians to interfere with the powers of the judiciary or to interfere with its work will be less unpopular than it should be in a functioning constitutional democracy. Judges have no army or police force and neither do they have the power of the purse. Judges are also not elected and do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

But without support from the broader public for an independent and impartial judiciary that is free from interference by the other branches of government or from big business interests (like the Oasis company), it is not clear that the judiciary in its present form will survive an onslaught by the tenderpreneurs and their political backers who see the judiciary as a threat to their kleptocratic interests. Both members of the judiciary (with the Chief Justice in the lead) and members of the media therefore need to reflect on how they can better inform the public about the way in which the judiciary operates and how it protects the rights and interests of ordinary citizens – including the social and economically marginalised members of society.

Why the Traditional Courts Bill might be unconstitutional

Feb 15th, 2012

by Pierre De Vos.

17 comments

The Law, Race and Gender unit at UCT has produced the following video explaining why aspects of the Traditional Courts Bill tabled last month may be unconstitutional.

An unambiguous attack on constitutional democracy

Feb 14th, 2012

by Pierre De Vos.

117 comments

In 1934 the Appeal Court in the case of Sachs v Minister of Justice; Diamond v Minister of Justice had to consider the validity of a banning order issued by the Minister of Police. Banning orders, which prohibited a person from being present in specific areas because the Minister was satisfied that the person “is in the area promoting feelings of hostility between the European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand”, was a powerful tool used by the authorities to restrict the political activities of those opposed to the policies of the government. In rejecting the challenge to the banning order, Stratford ACJ made the following statement about the nature of parliamentary sovereignty in South Africa:

[O]nce we are satisfied on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a Court of law to curtail its scope in the least degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the Courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its away, and that it is the function of courts of law to enforce its will.

Regardless of the spin later put on his words by presidential spin doctors, President Jacob Zuma’s latest comments about the judiciary reflect a yearning to return to this system of Parliamentary sovereignty. President Zuma said that there was a need to review the powers of the Constitutional Court because judges were not “special people”, but fallible human beings. As proof of this statement he pointed to the phenomenon of split judgments, saying:

How could you say that (the) judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court, we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with… There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case? That’s what has made the issue to become (one) of concern.

Judges were “influenced by what’s happening and who are influenced by you guys (the media)”, Zuma said. If the decisions of Parliament and the executive could be challenged, there was nothing wrong in questioning the decisions of the judiciary, he said.

Of course, President Zuma is correct that judges are fallible human beings and that different judges might view a legal question differently. (What he did not mention is that judges are usually slightly more intelligent than the average politician and usually far more honest. After all, as far as I know, no South African judge has ever faced bribery and corruption charges in court; no person has ever been convicted in South Africa for bribing a judge; and no judge has had to resign because he went to visit his drug dealing girlfriend in a Swiss jail on state expense.)

Reasonable lawyers often differ about what a legal provision or a judicial precedent might mean in a particular case. That is why lawyers take cases to court: most of them believe that they have some chance of winning their case or of getting a better deal for their client (even if they do lose the case). If they thought they had no chance of swaying the judge this way or that, they would not bother to submit papers and present oral arguments to court. They only believe that because reasonable people could differ on the correct interpretation and application of the facts or the law.

There is therefore nothing strange about different judges in the same court sometimes disagreeing with one another and writing a majority and minority opinion. Unlike some politicians, South African judges usually do not disagree with one another because they took bribes from different parties before the court or because they have another direct interest in the outcome of a matter. They do so because there is a genuine intellectual disagreement between the judges about the meaning of a legal rule or principle.

When this happens judges write different judgments in which they motivate why they took the view they took and these judgments can then be analysed and critiqued, thus keeping judges accountable for their decisions (unlike politicians, who are not held accountable for each decision they take, but are only held indirectly accountable by their party who might or might not gain more votes in the next election).

There is therefore also nothing wrong with criticising judicial decisions. Even sharp criticism of judicial decisions that engages with the legal arguments developed in a judgement must be welcomed, as such criticism and analysis ensure some form of accountability for the judiciary. (Of course, if a politician whose friend was convicted of bribing that politician argues that a specific majority decision handed down by the Constitutional Court is wrong, one might well take that opinion of the politician with more than a pinch of salt.)

But President Zuma’s claim that the powers of the Constitutional Court need to be reviewed because those judges sometimes hand down split decisions makes no sense whatsoever. Either the Constitutional Court has the power to interpret and enforce the provisions of the Constitution, or this power is taken away via a constitutional amendment. It is not possible to tinker with the powers of judicial review currently enjoyed by the Constitutional Court. Where a majority of judges, whose independence is guaranteed, are not allowed to review and set aside acts of Parliament or the executive, one does not have a constitutional democracy under the Rule of Law but a different system in which people enjoy rights by the grace of the majority party.

One can, of course, abolish the powers of the Constitutional Court to declare invalid legislation or acts of the executive, returning to a system of Parliamentary sovereignty which was in place during the apartheid years when the Sachs case was decided. This would mean that we would no longer live in a country in which the human rights of everyone is protected by the courts and President Zuma would then be free to act in accordance with even the most draconian legislation which would not be revieweable by the courts.

If one favoured a system, say, in which individuals could legally be arrested and detained without bringing them to trail, in which political opponents could be silenced with legally imposed “banning orders”, in which women or any unfavoured group (say, somebody who speaks Xhosa instead of Zulu or is disabled instead of able bodied) could legally be discriminated against by the government, then this system would obviously look particularly attractive.

But that is not the system on which the ANC had agreed years before the current Constitution was drafted. Recall that in 1989 in the Harare Declaration the ANC committed itself to the kind of system of judicial review that is currently in place in South Africa, affirming that in a democratic South Africa:

All shall enjoy universally recognised human rights, freedoms and civil liberties, protected under an entrenched Bill of Rights. South Africa shall have a new legal system which shall guarantee equality of all before the law. South Africa shall have an independent and non-racial judiciary.

There is no context which can explain away the words of the President about a need to review the powers of the Constitutional Court. Poor Mac Maharaj issued a statement in which he pretended that the President’s words could be interpreted to mean something completely different from what he actually said. But the statement about a need for a review of the Constitutional Court’s powers leaves no room for ambiguity or a different interpretation based on context. There is therefore no way to interpret President Zuma’s statement other than as an attack on the principles underlying a constitutional democracy.

In fact Maharaj’s statement added fuel to the fire by suggesting that the executive should be able to influence the judges. He stated that President Zuma’s statement that the powers of the Constitutional Court should be reviewed:

must therefore not be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution. This is an exercise that falls within the mandate of the Executive of formulating and reviewing policies of government which seek to advance the transformative character of our Constitution. It is anticipated that the outcome of this exercise will not only assist in developing value-based solutions to address the legacy of the past but will contribute in shaping our evolving constitutional jurisprudence.

This statement does not only fail to explain away the shocking attack of the President on our constitutional democracy, but signals that the Presidency has a rather strange understanding of the principle of the separation of powers and the independence of the judiciary. How the study by the executive of the judgments of the Constitutional Court could “contribute to the shaping of our evolving constitutional jurisprudence” without an attempt by the executive to intimidate the judges is unclear.

Judges have a constitutional duty to be impartial and independent. They cannot be swayed or influenced by the views of the executive who might wish to shape their jurisprudence. So if the executive aims to “shape” the decisions of the Constitutional Court, then it is aiming to interfere with the independence of the judiciary and hence to undermine one of the pillars of the constitutional democracy. This means that even the spin by the Presidency trying to excuse the inexcusable, displays a shocking lack of respect for our system of separation of powers and checks and balances.

One cannot interfere – legally, at least – with the supremacy of the Constitution and the independence of the judiciary without changing various provisions of the Constitution, including the founding values in section 1 which states, inter alia, that the “Republic of South Africa is one, sovereign, democratic state founded on the values of … supremacy of the constitution and the rule of law.” Such an amendment would require a 75% majority in the National Assembly, something the ANC would not be able to muster – even if they managed to bribe a few small parties to support its anti-constitutional scheme.

This suggests that (in the absence of a coup d’état) President Zuma’s wish that the powers of the Constitutional Court should be reviewed and amended is never going to fly. He will just have to take his chances in the courts (as he has done on many previous occasions, often with great success) when various cases that could affect his corruption and bribery prosecution comes before the judiciary. Meanwhile, he should really think before he talks.

When silence should not be an option

Jan 10th, 2012

by Pierre De Vos.

34 comments

It is safe to say that the late Professor Barend van Niekerk, the campaigning legal academic and a prominent human rights and anti-apartheid activist (who died in Bolivia in 1981) was not much admired or liked by National Party leaders like HF Verwoerd or BJ Vorster (or, one assumes, by their slavish supporters). He was twice prosecuted (and once convicted) for contempt of court and was also privately sued by a former Minister - all because of his fearless criticism of the apartheid judiciary and the justice system.

In the case of S v Van Niekerk (1970 (3) SA 655 (T)) he was unsuccessfully prosecuted before the High Court in Johannesburg for publishing an article entitled “Hanged by the neck until you are dead” in the South African Law Journal the previous year. Prof Van Niekerk had obtained the opinions of several practising lawyers about the imposition of the death penalty by South African courts and concluded from the data collected that:

Whatever conclusion one may draw from the results of these two questions the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is “conscious and deliberate”.

This narrow escape did not deter Prof Van Niekerk from speaking out and towards the end of 1971 he gave a speech at a protest meeting organised to protest against the Terrorism Act and a specific trial at that time being conducted in Durban in terms of this Act. Most of the witnesses called by the State to testify in this trial had been detained for long periods by the police and any reasonable person (which apparently did not include the majority of South African judges at the time) would have been deeply suspicious that they only agreed to testify because they were tortured.

In his speech at the protest meeting, Prof Van Niekerk criticised the vast majority of South African lawyers for remaining silent in the face of the application of this draconian piece of legislation, arguing that lawyers “should realise that by remaining silent in the face of what they know to be inherently unjust, cruel and primitive they are indeed sullying themselves and the reputation of their profession”. (Whether these words have any relevance for South Africa today, I will leave to the conscience of every reader — including those readers who are busy doing fee-paying legal work as I write this.)

He also argued that the very purpose of the detention clause of the Terrorism Act was to procure evidence by way of torture and asked whether in “the face of the grotesqueness of the situation as regards the application of the Terrorism Act” whether the time had not come for judges “to stand up more dynamically in the defence of the hallowed principles of the rule of law…”, which would require them to handle with caution all evidence procured in solitary confinement, thus practically robbing such evidence secured under detention of “all creditworthiness”.

In convicting Prof Van Niekerk, the Durban High Court found his words to have constituted an “invitation to Judges to embark upon a conscious refusal to give credit, in practically all cases, to evidence obtained in the manner referred to, as a means of killing or rendering ineffective those parts of the Terrorism Act which make such things possible, and in doing so to approach their duties in a manner which is incompatible with their duty, C and the oath which they took, to do justice without prejudice”.

The judge based his conviction of Van Niekerk on the ground that although he had not actually intended to bring some influence to bear upon the judge trying the terrorism case then before the court, the above-mentioned “invitation” nevertheless had a tendency to influence that court, and thus to obstruct the course of justice. The conviction was later confirmed by the Appellate Division in a judgment written by then Chief Justice Ogilvie Thompson, who held that the test to be applied for contempt of court was “whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding”.

Those dark days are long past and today no academic or lawyers will be convicted for contempt of court for making the kind of statements that Prof Van Niekerk made back in 1971. The constitutional guarantee of freedom of expression, read with the various provisions safeguarding the independence of the judiciary have made it very difficult to secure a conviction in this kind of contempt of court cases. In the Midi Television judgment handed down a few years ago, the Supreme Court of Appeal also explicitly rejected the dicta of the Appellate Division in the Van Niekerk case, stating that:

What is required by all those tests (implicitly, even if not always expressed) before a ban on publication will be considered is a demonstrable relationship between the publication and the prejudice that it might cause to the administration of justice; substantial prejudice if it occurs; and a real risk that the prejudice will occur. In my view nothing less is required in this country and to the extent that the pre-constitutional decisions of this court in Van Niekerk …. might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies. But merely to ask whether there is indeed a risk of prejudice that meets those criteria does not end B the enquiry. For as I indicated earlier, the limitation must not only be directed towards a permitted end, but must also be no more than is necessary to achieve its permitted purpose.

Robust criticism of court judgments in the media and by legal academics and even politicians are now the order of the day and when a judge makes statements (in his or her judgments or in extra–curial writing) that are sexist, racist, homophobic or that otherwise displays a lack of respect of the founding values of our Constitution, it is to be expected that lawyers, journalists and legal academics will criticise that judge harshly.

A failure to speak up would constitute a betrayal of the lawyer’s ethical duty spoken about by Prof Van Niekerk all those years ago. Every patriotic citizens who believes that it is important to defend the Constitution and the democracy it has brought into existence may well feel compelled from time to time to criticise court judgments and the actions or omissions of certain judges who do not measure up to basic ethical standards we have come to expect from judges.

Of course, not everyone sees the matter in this way. During the Judicial Service Commission (JSC) interview with the current nominee for the position of Chief Justice, Minister Jeff Radebe blasted Justice Mogoeng Mogoeng’s critics (who had raised concerns about his suitability for appointment because of statements he had made in his judgments and about his intimate involvement in a deeply homophobic church) stated that there had been a “vicious campaign against your person and dignity”. And last week, at the funeral of the late Judge Fikile Bam, the Chief Justice himself complained bitterly because “sitting and retired judges criticise their serving colleagues and do so viciously without offering alternative solutions to perceived wrongs”.

These comments raise anew questions about where one should draw the line and when criticism of court judgments and of judges would overstep the mark. Surely, where criticism of a judge, his or her behaviour inside or outside a court and the reasoning used by a judge in his or her judgments, relate directly to the fitness of that judge for judicial office or to the question of whether the judge respects the constitutional values of freedom, equality and human dignity, it will be difficult to imagine that such criticism would constitute contempt of court.

This rule may not apply to sitting or retired judges who should normally not comment on the judgments of other judges or on cases that might still come before a court. But when the Rule of Law is threatened or the independence of the judiciary or the constitutional system itself is under attack, then judges — both retired and sitting — might well have an ethical duty to speak out and not to remain silent like so many lawyers did in decades of apartheid rule. When to speak out will always be a difficult ethical issue and different judges will draw the line differently, but surely not speaking out may sometimes be far more unethical than speaking out (and then offending one’s former or current colleagues on the bench)?

The criticism of members of the judiciary might well be experienced as “vicious” by those judges who are not used to being criticised or who are particularly insecure and thin-skinned. Some criticism might well overstep the mark, especially where the criticism is extremely personal in nature and where it has no bearing on what the judge had actually done or said.

If I were to write that judge X was a drunk or that judge Y was a womaniser (without having credible evidence to back this up and without this being pertinent at all to the ability of that judge to act in an independent and impartial manner and according to the highest ethical standards) I would suspect that my criticism would go beyond what is acceptable in a constitutional democracy. But if I analysed the judgement written by judge X and concluded from this analysis that judge X is a sexist or a homophobe, I should be at liberty to say so – as long as I provide cogent reasons for my argument.

Not saying anything and keeping silent in the face of egregious ethical breaches by a judges or in the face of displays of extreme prejudice in the form of racism, sexism, homophobia or xenophobia by a judge, would often be cowardly, not professional and ethically correct. Whether a judge criticised in this manner experience the criticism as vicious or not will, from an ethical perspective, be neither here nor there.

It must be acknowledged that judges are often in a difficult position as they are not supposed to answer their critics and should really only speak through their judgments. They might feel that some criticism by other judges, lawyers or legal academics or by the media is unfair or off the mark and might bristle at know-it-all lawyers and academics who argue that they have gotten the law wrong or that they have written a judgment that demonstrates a decided lack of respect for women, black people or gay men and lesbians.

But in a constitutional democracy — unlike in Barend Van Niekerk’s apartheid South Africa — they would normally not be able to invoke the criminal law to have the critic charged with contempt of court. And a good thing this is too, because in the absence of robust criticism of judges, the constitutional dialogue between judges, lawyers, academics and the executive would end and judges would not feel that they are in any way accountable for their judgments.

And if judges — retired or currently serving — never speak up about perceived moves to undermine the Rule of Law and the constitutional democracy itself, one may well warn them (just as Barend Van Niekerk warned lawyers back in 1970) that through their silence they might indeed be “sullying themselves and the reputation of their profession”.

PS: I am in no way implying that the draconian and oppressive system under which Prof Van Niekerk laboured can be compared with our constitutional democracy and the legal system we work under now. What I am arguing is that silence is not always the right option and that truly wise and brave judges, lawyers and academics will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

The perils of criticising a court judgment

Dec 12th, 2011

by Pierre De Vos.

193 comments

Is the Supreme Court of Appeal (SCA) judgment declaring the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) unlawful and unconstitutional bad in law and will it be overturned by the Constitutional Court? Prof Ziyad Motala, a law professor in the United States, thinks the decision is bad in law and has hinted that the Constitutional Court should overturn the SCA decision which is nothing more than “politics masquerading as law”.

Writing in the Sunday Times yesterday, he argued that the SCA’s “reliance” on the adverse findings against Simelane made by the Ginwala Enquiry was misplaced. Prof Motala contends that the SCA judgment suggested that the Ginwala Enquiry findings against Mr Simelane “represent objective truths and something the President was bound by”. This was wrong because the SCA, he argued, conspicuously ignored questions about the nature of the Ginwala Enquiry. If the Enquiry was not an independent and impartial tribunal under the Constitution (which it clearly was not), then the probative value of its findings would be limited.

Prof Motala — correctly in my view — zooms in on the most difficult aspect of the case, namely the fact that there was no clear finding by an independent and impartial tribunal before the SCA which had concluded that Mr Simelane is not a “fit and proper person with due regard to his or her experience, conscientiousness and integrity” as required by section 9 of the NPA Act.

The SCA considered the findings of the inquiry to be an objective truth and not something for the President to assess. The court pays lip service to the core values of the Constitution such as the rule of law and legality. The ultimate decision and the reasoning, which underpins the result, are extraordinarily brazen. It signifies an abject dereliction of the court’s judicial function and lack of respect for the core values of the Constitution. The inquiry was neither a court of law nor a competent independent tribunal in terms of what our Constitution or international human rights would require. Instead, it was an ad hoc inquiry led by a political appointee (the former speaker of the National Assembly) selected by a prior President during a period of Machiavellian subterfuge and political maneuverings within the ruling party. The court takes no cognizance of this reality.

The case presented the SCA with a difficult problem. Section 9 of the NPA Act sets out objective minimum criteria that the NDPP must comply with if his appointment is to be deemed to be legally valid. If the appointee is not fit and proper with due regard to his experience, conscientiousness and integrity, the appointment is invalid. But what happens if there are serious questions about whether these minimum requirements have been met by the appointee, but no definitive finding about whether an appointee meets these requirements have been made by an independent and impartial tribunal? What is the duty of the court to enforce respect for the Rule of Law, when the evidence placed before it is inconclusive?

As the SCA pointed out, the Constitutional Court has stated on numerous occasions that the exercise of power by the President is constrained by the principle of legality, which is implicit in our constitutional ordering. Firstly, the President must act within the law and in a manner consistent with the Constitution. He or she therefore must not misconstrue the power conferred. Secondly, the decision must be rationally related to the purpose for which the power was conferred. If not, the exercise of the power would, in effect, be arbitrary and at odds with the rule of law.

Prof Motala argues that the SCA had wrongly relied on the findings of the Ginwala Enquiry (which he argued that court took to be the “objective truth”) to find that the appointment did not meet the objective requirements prescribed by section 9 of the NPA Act. It seems to me that although Prof Motala identified the factual difficulties surrounding the case, he misunderstood the legal reasoning of the SCA (and hence misrepresented the scope of that judgment).

The SCA had not, as far as I can tell, taken the findings of the Ginwala Enquiry to be the “objective truth”. If it had done so, Prof Motala’s criticism would be completely valid. What the SCA did do, was to find that the findings of the Ginwala Enquiry (and the extremely negative comments about Mr Simelane’s integrity made by judges of two different courts) raised serious questions about whether Mr Simelane met the objective requirements as set out in the NPA Act (requirements included in the Act to ensure the independence of the NPA) and that this required the President to follow a systematic procedure to determine whether these findings and comments disqualified Mr Simelane from being appointed NDPP or not.

Because there were serious question about Mr Simelane’s legal fitness for the job, the President had a duty to engage in a real and earnest manner with the issues raised. According to the SCA, his failure to do so was irrational as there was no rational link between the purpose of the exercise of the power (appointing a NDPP who is fit and proper and who will safeguard the independence of the NPA) and the manner in which the power was exercised.

(The Constitutional Court established this principle that the manner in which a power is exercised to achieve a specific purpose is relevant when determining whether the principle of legality had been satisfied in the Albutt case where it found that the President had acted irrationally when he approved the pardoning of apartheid era criminals in order to achieve reconciliation without allowing for consultation with the victims of the criminal offences. By failing to allow for a process of consultation with the victims, there was no rational connection between the purpose of achieving national reconciliation and the act of pardoning the apartheid era criminals.)

The SCA argument thus essentially boils down to this: Given the questions raised about Mr Simelane’s fitness to hold office, the principle of legality required the President — at the very least — to undertake a proper enquiry of whether the objective requirements of section 9(1)(b) were satisfied to ensure the independence of the NPA. What was required was for the President to obtain sufficient and reliable information about the candidate’s past work experience and performance; sufficient and reliable information about the candidate’s integrity and independence; and in cases like that of Mr Simelane where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

Where Prof Motala goes wrong, in my view, is by somehow reading the SCA judgment as accepting the findings of the Ginwala Enquiry about Mr Simelane as objectively true and as binding the President to these findings. As far as I can tell, it did not do anything of the sort. As the SCA judgment clearly states:

There may well be answers forthcoming from Mr Simelane on the issues raised by the [Ginwala Enquiry] report, but at the very least they required interrogation [by the President].

What made the appointment irrational and unlawful was that there was not — in the view of the SCA – sufficient interrogation of the various findings and statements by the Ginwala Enquiry and by the judges of two different courts which cast doubt on Mr Simelane’s fitness to hold office. (Requiring interrogation of the findings of the Ginwala Enquiry can surely not be equated – as Prof Motala does -with accepting these findings as objectively true?) Thus, said the SCA, the process followed by the President was not rationally related to the purpose of the appointment — the safeguarding of the independence of the NPA.

It is so that the Constitutional Court may look at all the facts and may find that there was indeed sufficient interrogation by the President of the various adverse findings against Mr Simelane and the various adverse comments made by judges of the High Court and the Constitutional Court about Mr Simelane’s integrity. Or it may find — somewhat contradicting its Albutt decision — that in the absence of a finding by a court that Mr Simelane was fit and proper, the President was not required to follow a more onerous process of actually considering and weighing all the negative comments made about Mr Simelane by the Ginwala Enquiry and by judges of the High Court and the Constitutional Court.

If I was Mr Simelane’s lawyers I would strongly push the first point (the second point seeming to be rather difficult to sustain) by highlighting exactly what President Zuma had done to interrogate the various adverse findings and comments against Simelane and by arguing that the facts demonstrated that the President had indeed followed a procedure that was rationally related to the purpose of his exercise of power.

Now, this might be difficult to show, given the fact that the President had previously argued that as the democratically elected head of the executive he had the absolute power to decide whether Mr Simelane was fit and proper. (And legally this argument was perhaps not the wisest one to have made in the High Court and before the SCA, as it misconstrued the nature of the requirement of s 9 and ignored the fact that section 9 set some minimum objective criteria that had to be met before the appointment of the NDPP could be deemed to be valid.) But a different court may well look at the evidence and conclude that a less onerous form of interrogation was required and that the President had satisfied this less onerous standard of interrogation.

My view is that one could thus easily criticise the SCA judgment on the basis that it had not given due regard to the facts placed before the court by the President and the Minister of justice. What one could not plausibly do without misconstruing the judgment of the SCA, was to argue that the SCA had accepted the findings of the Ginwala Enquiry as objectively true and then lambasting the SCA for playing politics. The latter line of reasoning seems at best to completely misread the judgment and at worst to deliberately misrepresent it for political purposes.

Lest we forget

Dec 8th, 2011

by Pierre De Vos.

177 comments

This Saturday South Africa’s Constitution celebrates its fifteenth birthday. The Constitution was signed by then President Nelson Mandela on 10 December 1996 in Sharpeville. This was only one and a half years after the Constitutional Court started its work in terms of the interim Constitution.

By December 1996 that Court had already declared invalid the death penalty as well as action taken by then President Nelson Mandela. It had confirmed the constitutional validity of the amnesty provisions in the Truth and Reconciliation Commission Act and had sent the final Constitution back for redrafting because the draft had failed to conform to the 34 Constitutional Principles agreed to by negotiators before the 1994 election.

In short, by the time the final Constitution was signed by President Mandela 15 years ago, the Constitutional Court had demonstrated a clear intention to do its job properly by declaring invalid acts of Parliament and actions of the executive which did not conform to the provisions of the supreme Constitution.

President Mandela might well have had reason to be miffed by the Constitutional Court because in the Executive Council of the Western Cape Legislature case it had found that the Parliament had unconstitutionally tried to delegate law making power to President Mandela and that his exercise of powers in terms of this delegation was thus unconstitutional. (This judgment was one of the judgments relied upon by those who challenged the unconstitutional attempts by President Jacob Zuma to extend the term of office of the former Chief Justice Sandile Ngcobo.)

President Mandela might therefore have expressed concerns about the “intrusion” of the Constitutional Court into the realm of “policy making” and might have warned that the work of the Constitutional Court will be assessed to determine whether that court is acting in a way that questions the power of the democratically elected legislature and the executive. Yet, in his speech at Sharpeville 15 years ago President Mandela did no such thing. Instead he said the following.

Friends and compatriots;

By our presence here today, we solemnly honour the pledge we made to ourselves and to the world, that South Africa shall redeem herself and thereby widen the frontiers of human freedom.

As we close a chapter of exclusion and a chapter of heroic struggle, we reaffirm our determination to build a society of which each of us can be proud, as South Africans, as Africans, and as citizens of the world.

As your first democratically elected President I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation`s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people. To the Constitutional Assembly, and to its Chairperson and Deputy Chairperson who guided it through a complex and arduous process, we owe thanks.

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed freedom and justice as their unquenchable aspiration. They pledged loyalty to a country which belongs to all who live in it.

Those who sought their own freedom in the domination of others were doomed in time to ignominious failure.

Out of such experience was born the understanding that there could be no lasting peace, no lasting security, no prosperity in this land unless all enjoyed freedom and justice as equals.

Out of such experience was born the vision of a free South Africa, of a nation united in diversity and working together to build a better life for all.

Out of the many Sharpevilles which haunt our history was born the unshakeable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish.

These principles were proclaimed wherever people resisted dispossession; defied unjust laws or protested against inequality. They were shared by all who hated oppression, from whomsoever it came and to whomsoever it was meted.

They guided the negotiations in which our nation turned its back on conflict and division.

They were affirmed by our people in all their millions in our country’s first democratic elections.

Now, at last, they are embodied in the highest law of our rainbow nation.

This we owe to many who suffered and sacrificed for justice and freedom.

Today we cross a critical threshold.

Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution.

Let us give practical recognition to the injustices of the past, by building a future based on equality and social justice.

Let us nurture our national unity by recognising, with respect and joy, the languages, cultures and religions of South Africa in all their diversity.

Let tolerance for one another’s views create the peaceful conditions which give space for the best in all of us to find expression and to flourish.

Above all, let us work together in striving to banish homelessness; illiteracy; hunger and disease.

In all sectors of our society – workers and employers; government and civil society;
People of all religions; teachers and students; in our cities, towns and rural areas, from north to south and east to west – let us join hands for peace and prosperity.

In so doing we will redeem the faith which fired those whose blood drenched the soil of Sharpeville and elsewhere in our country and beyond.

Today we humbly pay tribute to them in a special way. This is a monument to their heroism.

Today, together as South Africans from all walks of life and from virtually every school of political thought, we reclaim the unity that the Vereeniging of nine decades ago sought to deny.

We give life to our nation`s prayer for freedom regained and continent reborn;

God bless South Africa;
Nkosi Sikelel’ i Afrika;
Morena boloka sechaba sa heso;
God seen Suid-Afrika.

I quote President Mandela’s full speech above to remind us all – on this fifteenth anniversary of our Constitution - of President Mandela’s commitment to the Constitution and the supremacy of the Constitution enforced by a fearless Constitutional Court. Lest we forget.

Constitutional Court once again to the rescue of workers

Nov 28th, 2011

by Pierre De Vos.

26 comments

What happens if a parastatal like South African Airways (SAA) acts in a manner destructive of the rights of its workers and a court intervenes to protect the workers? Would the cabinet see such a move by a court as advancing the socio-economic interests of ordinary citizens and thus advancing the transformation agenda, or, alternatively, would it see the pro-worker decision by the court as unacceptable “interference” by the court in the running of SAA?

The answer is not clear. After all, in a world in which a “pro-transformation” government often acts in an “anti-transformation” manner when the financial interests of some of its donors, benefactors and family members or friends of the President or other cabinet ministers are at stake, the cabinet might well argue — in truly Orwellian manner — that a pro-transformation judicial decision is in fact anti-transformation.

These questions take on an added importance in the light of the seemingly bizarre statement recently issued by the cabinet about the need to assess the judgments of the Constitutional Court “to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

Last week the Constitutional Court, in the case of Aviation Union of South Africa and Another v SAA and Others, handed down a judgment in an appeal from the Supreme Court of Appeal (SCA) in which that court ruled that workers affected by an outsourcing agreement in which part of a business is transferred as a going concern would not be protected — despite the provisions of section 197 of the Labour Relations Act which protected workers involved in an outsourcing agreement — if the outsourcing agreement was terminated and a second outsourcing agreement entered into.

SAA had outsourced maintenance services to a company called LGM for a fixed period (and transferred that part of its business as a going concern to LGM) but this outsourcing agreement was not renewed. SAA was planning to issue tenders for the provision of the services previously provided by LGM. If the interpretation by the SCA had been endorsed by the Constitutional Court, it would have meant that the employees of SAA (and later LGM) who enjoyed protection afforded by section 197 at the stage of the first outsourcing agreement to LGM would be left with no protection if the same business was again transferred in terms of a second or further outsourcing agreement to another company.

The Constitutional Court had already interpreted section 197 in National Education Health and Allied Workers Union v University of Cape Town and Others, (NEHAWU) where it stated that the correct approach to interpreting the section was:

to construe the section as a whole and in the light of its purpose and the context in which it appears in the LRA. In addition, regard must be had to the declared purpose of the LRA to promote economic development, social justice and labour peace. The purpose of protecting workers against loss of employment must be met in substance as well as in form. And, as pointed out earlier, it also serves to facilitate the transfer of businesses. The section is found in a chapter that deals with unfair dismissal. Construed against this background, the section makes provision for an exception to the principle that a contract of employment may not be transferred without the consent of the workers. Subsection (1) says so and it makes it possible to transfer the business on the basis that the workers will be part of that transfer. This will occur if the business is transferred as a going concern.

Section 197 alters the common law which previously provided that the employment contract between employees and the company automatically came to an end when that company transferred a business to another company “as a going concern”. The section thus protects the job security of workers affected by the transfer of a business from one company to another company — in this case as part of an outsourcing agreement. In the Nehawu case the Constitutional Court said that in deciding whether a business has been transferred as a going concern (a prerequisite for section 197 to operate) regard must be had to the substance and not the form of the transaction.

A number of factors will be relevant to the question whether a transfer of a business as a going concern has occurred, such as the transfer or otherwise of assets both tangible and intangible, whether or not workers are taken over by the new employer, whether customers are transferred and whether or not the same business is being carried on by the new employer. What must be stressed is that this list of factors is not exhaustive and that none of them is decisive individually.

There were two judgments in the Constitutional Court case. Both rejected the conservative and exceedingly formalistic interpretation of section 197 provided by the SCA as such an interpretation would have provided far less protection for workers caught up in such outsourcing agreements.

The minority judgment, authored by Justice Chris Jaftha (and supported by Justice Mogoeng Mogoeng and Dikgang Moseneke, amongst others) found that the facts placed before the Labour Court were insufficient to support the finding that the termination of the agreement between SAA and LGM, coupled with the performance of the relevant services by SAA, would constitute a transfer of business as a going concern. This meant that it was not possible to determine whether the protection afforded by section 197 would apply or not. The minority would therefore have referred the matter back to the Labour Court to deal with the factual issues in the light of the proper interpretation of section 197.

The majority, in a judgment written by Justice Zack Yacoob (and supported by Chief Justice Ngcobo and Justices Cameron, Froneman, Khampepe and Van der Westhuizen), differed with this approach. The majority agreed with a broader interpretation of section 197 and also rejected the narrow and legalistic approach of the SCA. However, it disagreed with the minority that a transfer must already have taken place in this case before the applicants are entitled to any relief. The majority also disagreed with the conclusion that the evidence does not justify relief being granted to the Union by the Constitutional Court itself. It therefore found that there was no need to refer the matter back to the Labour Court for further consideration.

The implicit concern of the majority in this case was that an original employer would be able to “get rid” of employees by transferring part of their business as part of an outsourcing agreement for a fixed period, then terminating that agreement without demanding that the part of the business would be transferred back to it or doing so only at a time when workers rights had already been affected.

According to Yacoob, unless SAA or the temporary service provider decided to take over the employees, contrary to the contentions of SAA, the workers would have remained with LGM on the date of the termination of the agreement. LGM might then have had to retrench all the employees.

On the assumption that the transaction with which we are concerned, in particular its cancellation, involves the transfer of a business as a going concern, the workers would have been hard done by on 1 October 2007 [when original agreement was terminated] because they would have been left with LGM. The interim service provider would have sourced its workers and the possibility of the workers at LGM being transferred would be reduced. In my view, the section contemplates a seamless transfer from the old employer to the new one. And this becomes possible only if, when there is a dispute about whether the workers are to be automatically transferred in terms of the transaction concerned, that dispute is determined before the implementation of the agreement.

The majority found that the outsourcing agreement had to be interpreted in a manner that would inevitably activate section 197 at the termination stage of the agreement. It found that LGM did indeed become obliged to assist SAA in transferring certain services to SAA or to a third party. But the agreement went further, the court found. LGM was also obliged to provide SAA with reasonable access to the services, assets and inventory of LGM. LGM became obliged to sell all fixed assets and inventory dedicated only to providing the services in terms of the agreement back to SAA and to transfer or assign all third party contracts to SAA.

In the circumstances, the majority found that the cancellation clause of the agreement contemplated a transfer of the business as a going concern. The only debate was about whether the business as a going concern was to be transferred to SAA or to an interim service provider. As long as there is a transferor, the identity of that entity or person is of no material significance. The agreement contemplates transfer by LGM to SAA or to the interim service provider. It requires a transfer by a transferor, the old employer, to the transferee, the new employer.

The majority therefore made a declaratory order that would safeguard the rights of the employees affected by the cancellation of the outsourcing agreement. It was therefore a judgment that any reasonable person would agree impacted positively on the lives of ordinary citizens (if not on the lives of SAA executives who might receive smaller bonuses as a result of the decision). However, only time will tell whether the independent research institution tasked with assessing the work of the Constitutional Court and the cabinet, will see this judgment in this way.

Criticism of Courts

On changing the Constitution

Another brilliant idea by our political youngsters

Mixed signals on the review of our courts

Why so little trust in the judiciary?

Why the Traditional Courts Bill might be unconstitutional

An unambiguous attack on constitutional democracy

When silence should not be an option

The perils of criticising a court judgment

Lest we forget

Constitutional Court once again to the rescue of workers

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