Criticism of Courts

Constitutional Court more pro-poor than the government

Nov 25th, 2011

Given recent statements by Gwede Mantashe, Secretary General of the ANC, and President Jacob Zuma complaining about alleged “interference” by the judiciary in the work of the elected branches of government (the legislature and the executive), it is perhaps understandable that an announcement by cabinet about a new “assessment on the transformation of the judicial system and the role of the judiciary in a developmental state” will be carried out by a “reputable research institution” created an outcry. As I wrote earlier this week, trust in the ANC government amongst the chattering classes is at an all time low, given daily reports of corruption in our media and given the passing of the Secrecy Bill by the National Assembly.

Only a few minutes after the statement was released my phone started ringing as journalists anxiously sought confirmation that this statement must be read as a full-frontal attack on the independence of the judiciary. Journalists focused especially on the announcement that cabinet agreed to an approach to the transformation of the judicial system that would include an ”assessment of the decisions of the Constitutional Court”, to be “undertaken by a research institution 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”.

However, on its face, this statement could be viewed as a positive development. If a truly independent and reputable research institution conducts such an assessment, it will inevitably find that the decisions of the Constitutional Court – perhaps more than the actions of the legislature and the executive — have by and large impacted positively on the lives of ordinary citizens and have facilitated socio-economic transformation. Where the Constitutional Court has handed down judgments that could be viewed as anti-poor, the decisions have almost always endorsed the policies of the government.

I am thinking, for example, of the Mazibuko judgement in which the installation of pre-paid water meters in Phiri, Soweto were unsuccessfully challenged by the residents of that area. The policy was devised and implemented by the ANC-led Metro government of Johannesburg and in my view discriminated against poor black residence of parts of Soweto. The Constitutional Court declined to intervene because the Metro’s policy was adapted over time.

However, in many other cases, the Constitutional Court has either endorsed transformative policies of the government or declared invalid anti-poor policies and laws passed by the ANC national or provincial governments. In the Grootboom case, the Treatment Action Campaign case, the Khosa case, the Jaftha case, and the Glennister case the Constitutional Court handed down judgments that had the effect of extending social and economic rights benefits to the poor, protected them from discrimination and unfair treatment or placed duties on the government to fight corruption, the very corruption that disproportionately affect the lives of the poor and the marginalised who depend on the honest and efficient state to provide it with the minimum basic goods and services required for them to survive and live a meaningful life.

The most telling case in this regard is the judgment of the Constitutional Court in the case of Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others in which the Constitutional Court struck down sections of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. This Act, passed by the ANC-led legislature in KwaZulu-Natal, represented a full frontal attack on the poor, the homeless and those living in informal settlements. It might well have been passed in an attempt to undermine Abahlali Basemjondolo and to provide the government with legal tools to harass its members. The Act would have required landlords to evict all “slum dwellers” (a term last used by the apartheid government in the 1960ties) and was thus found to breach the right of access to housing guaranteed in the Constitution.

A credible report assessing the work of the Constitutional Court will have to come to the conclusion reached above, answering the very criticism of Mantashe, Zuma and others in the ANC who have convinced themselves that the courts interfere with the abilities of the other branches of government to effect socio-economic transformation. Any other conclusion will not be credible and no academic worth his or her salt would put their name to a report that concludes differently. If the assessment is done properly, it may therefore help to silence critics of the Constitutional Court.

This does not mean that other aspects of the cabinet statement are not worrying as they suggest a complete lack of respect for the separation of powers doctrine, which is inherent in a system of checks and balances in a constitutional democracy with a supreme Constitution. Two statements in particular can be interpreted to mean that the executive wishes to meet privately (read, in secret) with members of the judiciary to “engage” judges and to try and convince them that they should stop finding that the government is in breach of the Constitution. Notably the statement says:

Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution. ….. Appropriate mechanisms be developed to facilitate for regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.

There is nothing wrong with the leadership of the judiciary engaging the executive on issues dealing with access to justice and the better running of the judicial system. The government is elected to provide better access to justice and has to ensure that the system works well. In as much as formal discussions between the branches of government can facilitate the better functioning of our court system and easier access to courts, the move should be welcomed.

However, it is absolutely inappropriate for the executive to engage judges in a way that would even give the appearance that the members of the executive are trying to persuade judges to make decisions in individual cases that are more in line with the policy choices of the government. This would represent a full frontal attack on the independence of the judiciary and the system of checks and balances put in place by our Constitution.

Judges usually do not engage anyone about their past or future judgments (no matter what Judge President John Hlophe might think). They speak through their judgements and engage in this formal sense in a dialogue with the other two branches of government who can then respond appropriately to the judgments of the courts to ensure that they comply with the Constitution. Judges do not and cannot be seen to engage with members of the executive with a view of achieving “synergy” between the views of the executive and the judiciary.

In a constitutional democracy any synergy that exists between the executive and the judiciary is imposed by the various provisions of the Constitution as interpreted by the Constitutional Court. The judiciary is in dialogue with the executive in a formal way through their judgments but they are not “interdependent” with the other branches of government in the way hinted at by the statement (in the sense that they have to meet with the executive and agree on a plan of action on how best to effect transformation without embarrassing the bumbling lawyers appointed by the President and Parliament). If this is what the statement implied, it is wrong and dangerous and the intentions expressed in it would then be proposing an unconstitutional breach of the separation of powers doctrine, which is a doctrine that is deeply entrenched in our constitutional law.

What is needed is for this statement to be clarified. As it stands it can easily lead to the conclusion that the cabinet has a particularly dangerous and unconstitutional view of the relationship between the executive and the members of the judiciary. The judiciary — unlike the legislature and the executive — is completely independent and is required to be seen to be independent from the other branches of government. Secret talks about the transformative goals of the government with a view to “pull together” (which could easily mean, pull in the same direction as the executive – even when it acts in breach of the Constitution) would therefore not be acceptable. Indeed, it would represent a shocking attack against the Constitution itself.

As I suggested, the statement could, at a stretch, be interpreted differently to mean only that the executive would like to engage the leadership of the judiciary to improve access to justice and the efficiency of the courts. If that is the case, this should be made clear. If, however, the cabinet believes that it is appropriate for them to have secret chats with members of the judiciary to ensure policy synergies between them and the judiciary so that judges would not declare invalid the bumbling actions of the legislature and the executive, then the cabinet is shockingly ignorant and is embarking on a road to destroy our constitutional democracy. No judge who respects the Constitution would be party to such talks.

What happened to reasoned debate?

Aug 22nd, 2011

by Pierre De Vos.

96 comments

The debate about the wisdom of appointing Justice Mogoeng Mogoeng as Chief Justice, given the fact that he has had some ethical lapses in the past, that he appears to have a “gender problem”, and that he belongs to a church that holds extreme views – even by the standards of a modern evangelical church – has revealed much about South Africa’s racial fault-lines and about the very different conceptions about democracy of various groups in South Africa.

This Sunday, City Press uncovered an unreported judgment (now online in the Seminar Room) of the nominee in which Mogoeng, reviewing the case of a woman brutally assaulted by her boyfriend, reduced the man’s sentence from 2 years in jail to a fine of R2000. The woman was tied to a vehicle with wire and dragged at a “fairly high speed” behind the car for some 50 metres on a gravel road. The paper says that after hearing the matter on review in 2001, Mogoeng held that the two years sentence of Eric Mathibe was “too harsh by any standards”, noting, among other things, that he had been “provoked” by the complainant.

Mogoeng noted the complainant did not sustain “serious injuries”. She had several abrasions on her stomach, right leg and both knees. The victim was in pain, but Mathibe refused to let her have medical treatment on the day of the incident. He took her to consult a doctor the following day. The trial magistrate defended the sentence by saying assault on women was a problem in the district and that the crime was “barbaric and ancient”. Mogoeng seemingly did not agree, handing down a judgment that would surely upset any self-respecting gender activist. It would be akin to a judge setting aside a jail sentence of a farmer who had seriously assaulted a farm worker and had dragged the farm worker behind his bakkie on the basis that the sentence was too harsh (something, alas, that is not unknown to our judicial system).

City Press and its sister paper Rapport also reported that Mogoeng belongs to Winners Chapel International church, an institution that believes homosexuality is a perversion and members can buy the Bishop’s book on how to get divine deliverance from it. The church was founded and is guided by Nigerian Bishop David Oyedepo, says the report. It believes in faith-healing for various diseases and has published the testimony of a man whose prayers it claims brought a baby into the world after the mother had been pregnant for five years and seven months, but was unable to deliver the child. Mogoeng is said to deliver “pastoral services” for the church, but does not preach.

Of course, one would not have to look very far to find South Africans who share these views. Many men believe that women “provoke” men into raping them by wearing short skirts or high heels. Other men believe women “provoke” men to assault them by not obeying the orders of their husbands or boyfriends or by flirting with other men. And many South Africans have quite strange and even downright weird religious beliefs while others are athiests or are agnostic.

However, the question is not whether these beliefs are widespread, but whether it is appropriate that the Chief Justice of South Africa should hold such beliefs – given the commitments contained in our Constitution. The beliefs of a nominee for Chief Justice should not be problematic merely because they differ from one’s own. The beliefs should be problematic – as they might very well be in this case – because they cannot be squared with the values enshrined in the Constitution, which values the Chief Justice would symbolically be embodying and would be required to uphold – regardless of his personal beliefs.

If one happens to be a right-wing traditionalist or a patriarch one would be hard pressed not to cheer on this possible appointment of Justice Mogoeng as Chief Justice. (That is why the Freedom Front Plus and Inkatha Freedom Party should find it easy to support this nomination.) If one happens to embrace the progressive values enshrined in the Constitution and if one is honest with oneself and not overtly defensive, one would have to admit that one could not – with a clear conscience – support such an appointment. (Cosatu and the SACP should therefore really be deeply worried about the nomination of Mogoeng as Chief Justice.)

Or so it seems.

But this is not how the debate has unfolded. Many seemingly progressive and respected individuals, people whose views one would otherwise take seriously and respect, have sprung to the defense of the nominee on the basis that he was black and hence could not be criticised because it was not allowed to criticise a black nominee as this would “undermine” him or on the basis that he was nominated by the President and hence that it would be insulting to the President to criticise the nomination. Other conservative voices have criticised the appointment – perhaps because they would criticise any decision that our President makes – no matter how wise that decision might be.

Personally I find the reasons for defending the nominee startling, to say the least. Perhaps it says much about the manner in which we have all been infected and tainted by our apartheid past, that so many South Africans are incapable of making a reasoned assessment about the wisdom of the nomination, based on their values and principles and not based on some other kind of misplaced solidarity, prejudice, hatred or defensiveness.

Not all South Africans seem to have been able to escape the effects of the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks. For such individuals – black and white - there is nothing wrong with believing that black South Africans do not deserve the best and that they should be happy to settle for second or third best.

Why else would so many people support the appointment of Mogoeng Mogoeng, whom no person – as far as I am aware – has stated is the best person for the job of Chief Justice? Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the on-going propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke?

By saying this I am in no way trying to minimise the harsh and cruel effects of apartheid. On the contrary, I am taking these effects seriously but asking what can be done to free us all of a deeply ingrained but horribly offensive and corrosive apartheid mind-set that bedevils so much of our private actions and what passes as our public discourse. While many (but by no means all) white people who take part in public debates exude a kind of moral arrogance and superiority that is deeply offensive and hurtful to those who are patronised, subjected to discrimination or ignored, many black South Africans (but by no means all) seem to embrace the mediocrity ascribed to them by those very racists whom we should all surely despise and whose beliefs we should work very hard to undermine.

Secondly, I am really perplexed by the argument that we should not be allowed to comment on the quality of the candidate nominated by the President because that would show disrespect to the President. This view seems, to me at least, deeply undemocratic. Section 174(3) of the Constitution states that the President as head of the national executive appoints the Chief Justice, “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”

The President must consult and then – after consulting – must appoint the candidate of his choice after having taken into account the views of the JSC and the leaders of opposition parties. In 1999, in President of the Republic of South Africa and Others v SARFU and Others the Constitutional Court considered the appointment of Constitutional Court judges under the Interim Constitution, which required, inter alia, that the President had to appoint such judges “after consultation with the Chief Justice“. The court held that :

It follows … that this appointment could only take place in good faith after consulting the Chief Justice and giving serious consideration to his views.”

The heart of the matter – as also confirmed by many other judicial authorities – is that the President must consider other views meaningfully, and give them serious consideration, although it is clear the final decision rests with him. In doing so, the views of the public must necessarily play a role. If, say, the JSC informs the President that his nominee for Chief Justice lacks the gravitas, judicial stature, belief in the values enshrined in the Constitution and/or support of the judiciary as a whole and that such an appointment would be unwise – something the JSC clearly is entitled to do – the President may nevertheless proceed with the appointment.

In the absence of political consequences the President will never take the views of the JSC seriously and in the absence of a democratic debate there can therefore not be meaningful consultation between the JSC and the President. What would force the President to reconsider the appointment he wishes to make is the court of public opinion. But that court – which is conducted in the democratic space itself by all citizens - would only be able to make an informed decision on whether it supports the decision of the President if there is widespread discussion and debate about the merits and the demerits of the President’s preferred candidate.

To suggest, as some have done, that we should not be allowed to discuss – in a considered and responsible manner – whether the nominee is suitable for appointment merely because our “great leader”, our “wise father”, our “benevolent patriarch” has decided that he should be appointed, is profoundly anti-democratic and deeply insulting to the South African voters.

This does not mean that we should gratuitously insult the nominee in the process. I therefore agree with Paul Berkowitz that Zapiro’s cartoon about this matter was a deeply problematic one. As Berkowitz wrote in the Daily Maverick:

This cartoon falls far short of that standard – it may in fact be my least-favourite cartoon of his to date. In contrast to his normal scalpel-sharp analysis, this was a hatchet job. Mogoeng is painted as a sycophant, an obedient servant of the president who is being rewarded for his pliancy.

But surely it is possible to find the middle ground in between the “hatchet job” done by Zapiro on the nominee, and the sycophantic and often completely mindless and anti-democratic arguments put up in defence of Justice Mogoeng’s nomination as Chief Justice? Surely we can talk in a relatively civil and reasoned manner about what characteristics a good judge and a good Chief Justice should possess and then proceed to analyse Judge Mogoeng’s record to determine whether he indeed possesses these characteristics. Surely, in a democracy we all have both a right and a duty to apply our minds to the matter and not to jump to conclusions based on our racial insecurities, our apartheid-imposed sense of shame and self-hatred or our knee-jerk hatred of the President and the ANC?

When we engage in this discussion we are not undermining the nominee. On the contrary, we are treating the nominee with the requisite respect by taking his or her views seriously and by not treating the nominee as a disembodied symbol respresenting a specific race or gender, but as an individual human being with strenghts and weaknesses, with his own ideas and values, with an agency which the apartheid system wanted to deny all black South Africans.

Personally – for reasons provided in this and previous post - I am deeply concerned about the possible nomination of Justice Mogoeng Mogoeng as Chief Justice. In my view there is ample evidence that he is not the best person for the job and that his value system is not in line with that embodied by our Constitution. Unlike the appointment of Chaskalson, Langa and Ngcobo – which I all supported enthusiastically – I cannot support this appointment. Saying so is difficult because it exposes one to attack and accusations of racism, treachery and worse. It also possibly bedevils future interactions with the new Chief Justice and other members of that court. I would have preferred not to have to make this argument, but I would surely have been a coward if I had kept silent. Keeping silent would also have been deeply patronising to the nominee.

But in engaging in this debate it would have been nice to hear reasoned arguments that support the opposite view, arguments which analyse the nominees strengths and attempts to demonstrate why the values displayed by the nominee in his interviews and judgments are admirable and more or less in line with the values embodied in our Constitution.

So far we have been ill-served by those who defend the nomination. Their failure to make reasoned arguments in favour of his nomination impoverishes the debate and disrespects the democratic space which our Constitution envisaged would be used wisely by all citizens with the power to speak so that we can debate the issues and so that those who are required to make these difficult decisions can hopefully make the wisest possible choice.

Justice Mogoeng – an unwise decision

Aug 16th, 2011

by Pierre De Vos.

105 comments

The announcement that President Jacob Zuma has “nominated” justice Mogoeng Mogoeng to take up the position of Chief Justice of South Africa can at best be described as surprising and disappointing. It is as if President Zuma, acting like a spoilt child who could not get his way with the extension of the term of office of the outgoing Chief Justice because he relied on a clearly unconstitutional provision to do so, is now trying to get back at critics by indicating a wish to appoint one of the less suitable candidates to that post.

The “nomination”, if confirmed, will mean that for the next ten years the South African judiciary will be led by a deeply conservative jurist. This could potentially have consequences for the implementation of the transformative vision embodied in the South African Constitution.

I would be surprised if progressive leaders inside the ANC, COSATU and the SACP have been consulted on this decision or, if they have, they supported the decision. There are two main reasons why this decision, while constitutionally permissible, will be viewed by many progressive and pro-transformation champions in our society as one of the most ill-advised decisions our President has made. On the other hand, the decision should be welcomed by many conservatives in both the white and black community who are uncomfortable with the progressive, pro-poor and pro-diversity trajectory of the Constitutional Court.

In any case, the decision says much about the values espoused by our President.

First, it cannot be contested that the nominee is the most conservative judge currently serving on the Constitutional Court. In the case of The Citizen v McBride in a judgment handed down earlier this year by the Constitutional Court, justice Mogoeng dissented from the majority and provided reasons for this dissent which suggest that he has a curious understanding of the way in which freedom of expression operates in a constitutional democracy. In the context of a discussion of the effects of the granting of amnesty by the Truth and Reconciliation Commission (TRC) to those who had committed gross violations of human rights during the apartheid years, justice Mogoeng stated that it was impermissible to use truthful facts to insult, demonise and run down the dignity of self-confessed human rights violators.

Invoking “traditional values and moral standards” — something that the justices on the ultra-conservative wing of the US Supreme Court might do — the judgment seemed to suggest that it was inappropriate in a constitutional democracy to engage in debate that would affront the dignity of any individual. Even in cases where the impugned comments are based on incontrovertible facts (“X is a murderer hence X is a bad person”), would seemingly offend the honourable judge.

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

As a gay man and a vocal champion of respect for difference and diversity, I was also deeply disturbed by the decision of the nominee to distance himself from passages in a judgment in the case of Le Roux and Others v Dey (co-authored by justice Froneman and Cameron), which found that our Constitution affirms the principle that there is nothing wrong with being gay or lesbian and hence that one cannot be defamed if one is called a homosexual.

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the refusal of the nominee to endorse the views of the majority on this point suggests that he does not agree with the long line of precedent on sexual orientation discrimination.

Which brings me to the second reason why I believe this nomination is unwise. The problem is that Justice Mogoeng did not provide us with any reasons for his disagreement with the majority judgment in the Dey case. Justice Mogoeng thus managed to avoid scrutiny of his views by the legal community and by the public on this issue. He thus avoided having to face the kind of accountability that judges are normally subjected to in a constitutional democracy. The principles of openness, transparency and accountability which judges of the highest court should be particularly attuned to, were therefore not served by this silence. Justice Mogoeng therefore unwisely failed to embody the culture of justification demanded by our Constitution, placing a question mark over his judicial temperament and his wisdom.

If this lapse was an isolated occurrence, one might well have argued that it was of little significance. However, during the time when Justice Mogoeng served as Judge President he presided over the case of S v Dube, in which another such lapse occurred. In that case the nominee’s wife was the prosecutor in the case but the judge failed to inform the accused of this fact. The Supreme Court of Appeal (SCA) found that the failure of the then Judge President to recuse himself when his wife presented argument for the State in the court below constituted an irregularity which vitiated the appeal proceedings. The SCA therefore set aside the order of the High Court and referred the case back for re-hearing before a differently constituted bench.

The SCA pointed out that the enquiry to determine whether a judge should recuse him or herself “involves a value judgement of the court applying prevailing morality and common sense”. The SCA stated that:

A cornerstone of our legal system is the impartial adjudication of disputes which come before our courts and tribunals. What the law requires is not only that a judicial officer must conduct the trial open-mindedly, impartially and fairly but that such conduct must be manifest to all those who are concerned in the trial and its outcome, especially the accused. … In this country a judicial officer was held to be disqualified in a case where his wife was called as a witness. In S v Sharp the complainant was the magistrate’s wife. He presided in a trial where his wife testified. The court on review held that the magistrate had a direct personal interest in the outcome of the proceedings and that it was difficult to conceive of a more obvious example necessitating recusal. In the case such as the present, where there is a close relationship between the presiding officer and one of the legal representatives, it appears to be undesirable if not improper for such judicial officer to sit in the matter.

It is worrying that the SCA has made a finding which suggests that the nominee for the highest judicial office in our country lacks the common sense and a sense of the prevailing morality in our society required from a competent and wise judge.

Of course, the President has the right to appoint any fit and proper person who is suitably qualified as Chief Justice. All that is required is for the President to consult with the JSC and the leaders of opposition parties before making and appointment. There is no requirement that the President should heed the concerns of those consulted. It must be made clear that I am not suggesting that the nominee is not a fit and proper person that is suitably qualified for the job.

But in a constitutional democracy the decisions of our President are subject to scrutiny and it is both appropriate and sometimes necessary to criticise the wisdom of decisions made by our President. In my humble opinion this is a case where such criticism — based on the kind of reasoned analysis provided above — is fitting and necessary.

It would be interesting to see if progressive voices inside the ANC and in the ANC alliance partners will turn a blind eye to this deeply conservative decision of the President. Will they support this nomination or will they be principled enough to criticise this decision? Will they point out that their progressive agenda will not be served by this decision and that it has the potential to undermine the transformative power of the Constitution?

Only time will tell.

Judges must keep their cool

Jun 10th, 2011

by Pierre De Vos.

9 comments

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

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

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

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

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

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

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

COURT: It is not in the papers.

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

COURT: No, . . [intervenes].

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

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

MR CARLS: As the Court pleases.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On Lady DA-DA and the shower head man

Apr 19th, 2011

by Pierre De Vos.

52 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How not to criticise a court judgment

Mar 28th, 2011

by Pierre De Vos.

14 comments

Reasonable lawyers may well disagree on whether the majority or minority decisions of the Constitutional Court judgment in the Glenister case (dealing with the unconstitutionality of the Hawks) is the more cogently argued and which of the majority or minority decision reached the desired outcome. Although the public clearly supports the majority opinion (last night on Interface on SABC TV 95% of respondents indicated that replacing the Scorpions with the Hawks was a mistake), this is of little import when lawyers discuss which of these decisions is to be preferred.

Of course, when lawyers discuss these questions one would hope that they would do so with some understanding of the unique nature of the South African Bill of Rights and that their arguments would be based on an honest and fair assessment of the judgment. American Law Professor Ziad Motala took a stab at this in yesterday’s Sunday Times, but alas, I fear his slavish pro-executive views and his rigid ideological commitments tripped him up and led him to misconstrue aspects of the judgment and to present arguments more appropriate for the United States context (with its liberal Bill of Rights) than the South African context (with its post-liberal Bill of Rights).

The same mistake has often been made by both reactionaries and authoritarian critics of our Constitutional Court.

Prof Motala argues that the majority in the Glenister case failed to consider either the text of the Constitution or the principle of the separation of powers in its judgment. “The constitution does not mandate to parliament where to locate the anti-corruption unit,” writes Motala. This is a curious statement which does not seem to conform to the facts as the majority has not ordered the parliament to locate the anti-corruption unit anywhere. It has – appropriately - left this question open to parliament to decide.

Motala also expresses concern at the manner in which the majority dealt with the various international treaties which bind South Africa and which require the SA government to create a sufficiently independent corruption fighting unit. Motala argues that:

the majority ignored all precedent and said international agreements, even though not made self-executing, create an obligation to create an independent anti-corruption entity. What makes the majority approach particularly egregious is there is no single international law text which supports their conclusion on the relationship between the anti-corruption unit and the executive. More importantly, there is not a single precedent from any country in the world which the majority could cite to support their interpretation that international law required an anti-corruption unit in terms of the framework they posited.

Motala seems not to have followed the main argument of the majority. It did not find that the duty to create an independent anti-corruption unit flows directly from South Africa’s international law obligations. Instead the majority argued (as it has done in countless previous cases) that section 7(2) of the South African Constitution places a positive obligation on the state to protect, promote and fulfil the various rights in the Bill of Rights. (Of course, the US Constitution does not contain an equivalent provision to that of section 7(2), so one might forgive the learned Professor for his mistake.)

The majority then found that corruption infringes on the rights to achieve equality, human dignity, freedom and security of the person, administrative justice and socio-economic rights. In order to comply with its positive obligation to protect, promote and fulfil these rights, the state therefore had a duty to create a sufficiently independent anti-corruption entity as only such a body would be able to fight corruption effectively.

International treaties were only used by the majority in order to help the court to interpret the text of the Constitution and to establish the scope and content of the obligation to protect, promote and fulfil this obligation to fight corruption to protect the various rights mentioned above. The majority thus turned to international law as it has done in countless other cases – including the famous Grootboom case – to assist it with its interpretation of section 7(2), read with section 9, 10, 1226,27 and 33 of the Constitution.

When the Grootboom case was decided, there was also not a single precedent from another country referred to by the Court because the text of our Constitution is rather unique. That did not deligitimise the Grootboom judgment – except, of course, in the eyes of the authoritarian left and the liberal right critics of the Court. At the time, critics of the court also claimed that the Court had involved itself in policy making and that it was therefore infringing on the separation of powers doctrine. Manto Tshabala-Msimang’s lawyers tried to put forward this view in the TAC case but this argument was rejected by a unanimous court.

Of course the argument that the Court should not involve itself in “policy matters” is based on a peculiarly liberal notion of separation of powers and on the traditional liberal assumption – now widely mocked by progressive lawyers – that at least in some cases one can draw a bright-line boundary between law on the one hand and policy on the other. But whenever a court is empowered to declare invalid acts of the executive and parliament and where a court can determine whether the other branches of government have fulfilled its positive obligations to protect, promote and fulfil the rights in the Bill of Rights, policy issues will potentially be implicated. It is not the task of the court to decide what policy the other branches of government should adopt, but it is the task of the court to say when policy choices made by other branches do not conform to the requirements set out in the Constitution (as interpreted by judges, of course).

This is exactly what the majority did here. One might disagree with its reasoning or – for ideological reasons – with the outcome of the majority decision, but to do so on the basis that the court involved itself in policy choices, is to misconstrue the nature of the South African constitutional project. Arguing that the text of the South African Constitution ”is clear on the separation of powers” is also perplexing as the phrase “separation of powers” does not appear in the text of the Constitution and the Constitutional Court has argued that it will – over time – develop its own version of the doctrine. The doctrine can therefore not be clear.

Prof Motala curiously claims an absolute certainty about the contours of our separation of powers doctrine, where there is none. He claims that the text of the Constitution is absolutely clear about this doctrine, when it is not. He claims the interpetation of the text by the majority creates “fringe meanings”, which is true, I guess, if one views it from a very particular ideological perspective, but untrue if one happens to support the creation of a truly independent corruption figting unit to protect, promote and fulfill the rights in the Bill of Rights.

The Constitution must be interpreted by the judges and different judges may well interpret different obligations differently, depending on their assessment of the text of the relevant constitutional provision, the socio-political context and of the purpose and structure of the constitutional text. One may well disagree with the specific interpretation of the text of the Constitution made by a judge (because there are almost always more than one credible interpretation of the often open ended provisions of a constitution). But to argue that the majority opinion was ideological (while the minority opinion seemingly was not) and that the majority opinion showed a great distrust for democracy and disdain for political accountability (while the minority did not), is no more than a political statement based on a particular ideological commitment to the relatively unchecked exercise of executive power.

We all have our ideological commitments, of course. Those of us who actually live in South Africa and experience the consequences of corruption and its corrosive effect on service delivery to ourselves and to others, might therefore be slightly more supportive of the majority decision than others who might have decided to leave South Africa to make a better living elsewhere, untroubled by the daily challenges of our society. We will be naive if we did not admit that ideology will often play a role in how we read and critique judgments of the Constitutional Court. I would argue that in this case the ideological choices are rather stark. Some of us might feel uncomfortable to be seen to stand on the side of the often venal political elites – others might not.

Quite frankly the separation of powers argument is a red herring. As Chief Justice Sandile Ngcobo stated at a public lecture last year, while we are still developing this doctrine we should conceptualise our separation of powers doctrine in terms of a dialogue between the legislature and the executive on the one hand and the judiciary on the other. Because the text and structure of our Constitution requires the Constitutional Court to determine whether certain policy choices of the legislature or the executive comply with the Constitution (as it has done in other cases like the Rail Commuters case, the Treatment Action Campaign case, the Khosa case, the Nicro case, and many other cases) one cannot argue in any credible way that when our Court declares invalid legislation that contains policy choices of parliament they overstep the boundaries of the separation of powers doctrine.

The Court must decide what obligations the Constitution impose (as it did here, providing cogent and reasoned arguments which one might or might not agree with, but which cannot be said to be absurd or illogical) and must then leave it to the other branches of government to comply with these obligations. This is exactly what the majority did in this case. It gave parliament 18 months to fix the problem. When it decides how to fix it, parliament will consider different policy options and one will be chosen. Hopefully it will be a policy option that complies with the positive obligations imposed by the Constitution (as interpreted by the majority of Constitutional Court judges). If it does, that will be the end of the matter. If it does not, the dialogue may continue.

Lastly, the complaint by Prof Motala that the majority rested their conclusions on “public perceptions”, seems revealing as it completely misconstrues what the Court had argued. The court – as it has done in several other cases – argued that the test for independence requires one to ask whether a reasonable person would believe that the institution under review is independent. This, however, is not how Motala presented the argument:

A judge should not be looking at opinion polls nor, for that matter, the ballot box in saying what the constitution represents. If we looked at the passions of the majority, the death penalty would have been introduced a long time ago and gay rights would have gone out the window.

This passage unfortunately does not engage in an honest and fair manner with the majority decision. Either Motala did not understand what the court meant or he has deliberately misconstrued the arguments advanced by the majority. It never said the views of the public had to determine what the Constitution meant. All it said was that one needs to ask whether – from the reasonable standpoint of the public – an independent unit has been created. This is the known test in our jurisprudence for determining independence. The fact that Motala does not know this or that he chooses to ignore it, rather discredits his whole piece of hackery.

To conclude, Prof Motala’s piece represents a lost opportunity to engage seriously and honestly with the majority decision. One may well argue that the minority decision – despite reaching an unpalatable outcome which seems to endorse potential political interference in corruption investigations – was legally the more cogent or politically more advisable. One may also argue that it is inappropriate to establish a truly independent corruption fighting unit in South Africa as this might lead to the prosecution and incarceration of one’s friends or of politicians of a party one happens to support. But then one needs to do so honestly and in a way that does not misconstrues the reasoning of the Court.

The silence of Justice Mogoeng

Mar 16th, 2011

by Pierre De Vos.

49 comments

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

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

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

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

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

Paragraph 181 of the Froneman and Cameron judgment states that:

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

Paragraph 189 states that:

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

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

Our Constitutional Court has often suggested that the Constitution “discountenances anti-gay sentiment”. The Constitutional Court has often found that one’s personal choices about engaging in same-sex sexual activity is protected by our Constitution. At first glance, the brief throwaway line in the court’s summary of the judgment quoted above therefore suggests that Justice Mogoeng does not agree with the long line of precedent on sexual orientation discrimination.

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

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

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

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

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

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

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

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

Further reflections on academic criticism of courts

Feb 6th, 2011

by Pierre De Vos.

65 comments

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

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

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

Let me explain.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Empire Strikes Back

Feb 3rd, 2011

by Pierre De Vos.

106 comments

It is always good to have one’s feet held to the fire. Criticism of the legal profession and of legal academics should therefore be welcomed – whether it comes from traditional conservative quarters or from more progressive voices in our society. Criticism (hopefully) encourages self-reflection. Incisive criticism may start a debate, which might help to enlighten us and might improve the way we all engage with the law.

It was therefore great to read that Adv Jeremy Gaunlett had delivered a speech in which he criticised the legal profession for a “lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa”. Gauntlett – who was nominated for appointed to the Constitutional Court and the Cape High Court but has not been appointed to either court – argued that there was a complacency amongst lawyers and legal academics about problems facing the legal system in South Africa.

I think as a general proposition this is correct. Lawyers and legal academics are often far too hesitant to engage with (and speak out about) issues of social injustice and the manner in which our legal system still favours the rich and well connected and disadvantages the poor and those who do not have friends in high places.

However, Gauntlett’s gripe seems to lie elsewhere. He argues that “it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function”.

[O]ther than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court? Those of you who are public lawyers may not agree with it all. You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as “evidenced by an atavistic sentimentality”, “outcome-based” and “mock-Solomonic”. But then we would all benefit if you said so.

Why have you not criticised the refusal by Justice Sachs in the Sidumo case to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a “move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability”? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?

Amongst other things the concern, says Gauntlett, is “the lack of legal clarity”. This kind of reasoning is, of course, plausible. If one adheres to a traditional view of the law, if one does not embrace the transformative vision of the Constitution, if one believes that the common law and other legal rules should remain untouched by the values and norms enshrined in the Bill of Rights, this yearning for “legal clarity” seems logical and necessary.

After all, the assumption that “legal clarity” was a good thing and that it used to be the norm rather than the exception in the pre-constitutional era, is widely shared by traditional lawyers in South Africa. (Of course, the fact that the belief in legal clarity often led judges enthusiastically to enforce apartheid laws or made them shy away from trying to re-work the law to minimise the inhumane effects of the common law and apartheid legislation on the majority of South Africans, is not often remarked upon by the adherents of this view.)

Of course, this view is based on a very particular approach to the law, one that assumes that “legal clarity”, “precision”, and “coherence” are not only ideals that are nice to have but can be (and are) indeed achieved. It takes for granted the correctness and moral superiority of traditional legal culture, which as Karl Klare pointed out in a seminal article in 1998 remains exceedingly formalistic, rule-bound, and more concerned with precedent and systems of logic than with the just outcomes of individual cases and with the achievement of a semblance of justice.

Gauntlett’s critique, it seems to me, is therefore an ideologically based one – although it professes to come from a neutral and apolitical place. If one assumes that traditional formal legal culture is the only acceptable and correct way of doing law, then one might well agree with Gauntlett. If one embraces a transformative vision of the Constitution – in the sense explored by Klare – then one might very well have serious problems with Gauntlett’s views set out above.

I obviously fall in the second category. My critique of lawyers and legal academics would therefore focus far more on the lack of engagement of many lawyers and legal academics with issues of social justice and the lack of critical reflection about the way in which the so called “precise” and “accurate” legal rules Gauntlett talk about often favour the powerful and wealthy in our society.

Gauntlett also highlights problems with the way we choose our judges. He states:

Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?

Of course there have been some serious problems with the appointment of judges. We have appointed quite a few judges who – in my opinion – did not meet the minimum criteria for appointment, including that they should have embraced the progressive values enshrined in our Bill of Rights.

(Incidentally, my colleagues at the Democratic Governance Rights Unit have been submitting assessments about applicants for judicial office for the past two years, so Gauntlett is perhaps not as well informed as he could have been about the appointments process.)

What jumps out at me is the statement that an “objective assessment” of candidates is needed. But if we talk about the need for a transformed judiciary – by which I understand a judiciary which is staffed by judges who are not sexist, not racist, not homophobic, judges who take the social justice demands of our Constitution seriously – then this talk of an objective assessment seems rather strange if not impossible.

For me what would be interesting and worthwhile would be to have a conversation (or even a heated argument) about the ideological assumptions underlying Gauntlett’s critique. We all come from different perspectives and make different assumptions about the nature of the legal system we would like to see in South Africa. These are not uncontested and for me the problem with Gaunlett’s argument is that it attempts to erase or hide the politics and ideology on which his argument is built and pretends to come from a neutral place.

Let the conversation begin.

Braamfontein = 1 : Bloemfontein = 0

Nov 8th, 2010

by Pierre De Vos.

67 comments

When South Africa became a democracy in 1994, the new Constitution replaced the system of Parliamentary sovereignty (in which Parliament could make any law as long as it followed the correct procedure) with that of constitutional supremacy (in which every law had to conform to the requirements of the Bill of Rights). This brought about a legal revolution and gave our courts enormous power to declare invalid Acts of Parliament as well as the power to declare invalid the conduct of members of the executive – including the President.

But in 1994 South African courts were still largely staffed by conservative white men appointed by the apartheid government and the courts therefore lacked democratic legitimacy. To address this problem, it was decided to create a new Constitutional Court as the highest court for all constitutional matters. The Constitutional Court was also given the power to make a final decision on whether an issue was a constitutional matter or not, thereby giving it the power to determine — to some extent at least — the limits of its own jurisdiction. The Supreme Court of Appeal (SCA) — then still called the Appellate Division of the High Court — would remain the highest court for non-constitutional matters, but its power and status had clearly been diminished by the new constitutional dispensation.

Although some of the judges appointed to the Constitutional Court in 1994 served as High Court judges, other Constitutional Court judges were appointed from the ranks of academia. Highly respected human rights lawyers and lawyers who took part in the struggle against apartheid such as Arthur Chaskalson, Albie Sachs and Pius Langa were also appointed without ever having served on the bench. This did not go down well with more traditional lawyers and the majority of apartheid-era judges.

At first, the head of the SCA remained the Chief Justice while the head of the Constitutional Court became the President of that court. But as our constitutional jurisprudence developed, it became clear that the Constitutional Court — and not the SCA — was now the highest and most important court in South Africa and the Constitution was amended to make the head of the Constitutional Court the Chief Justice (and hence the head of the judiciary) while further “downgrading” the SCA by making its head the President of that court.

It was therefore perhaps inevitable that perceptions would arise about tension between the two highest courts in the land. The SCA judges (stuck in Bloemfontein — both physically and metaphorically) were seen as being reluctant to embrace the new constitutional dispensation — even when its own constitutional jurisdiction was extended by the 1996 Constitution. Initially the SCA seemed reluctant to make use of section 39(2) of the Bill of Rights, which requires every court, tribunal or forum to promote the “spirit, purport and objects” of the Bill of Rights when it interpreted any legislation, and when developing the common law or customary law.

The SCA attempted to draw a distinction between “purely” constitutional matters — on which the Constitutional Court would have the final say — and matters relating to the interpretation of legislation and the development of the common law — which it saw as its rightful domain and on which it hoped to retain the final say. But the Constitutional Court seemed to have put a stop to this when it made it clear in the Pharmaceutical Manufacturers case that there was only one body of law in South Africa:

The common law supplements the provisions of the written Constitution but derives its force from it. It must be developed to fulfil the purposes of the Constitution and the legal order that it proclaims — thus, the command that law be developed and interpreted by the courts to promote the “spirit, purport and objects of the Bill of Rights”. This ensures that the common law will evolve within the framework of the Constitution consistently with the basic norms of the legal order that it establishes. There is, however, only one system of law and within that system the Constitution is the supreme law with which all other law must comply.

Game, set and match to the Constitutional Court — or so it seemed. Until the Constitutional Court was asked to interpret section 7(1)(b) of the National Building Regulations and Building Standards Act 103 of 1977 in the case of Walele v The City of Cape Town and Others.

In its judgment in the Walele case, the Constitutional Court used a so called “purposive approach” to interpretation of the section to give this section an expansive meaning that was more protective of the property rights of those who might object to the building plans of their neighbours.

In effect, it found that it was an applicant who sought approval for building plans who had to satisfy the local authority that the area in which it is to be erected will probably not be disfigured; will probably not be unsightly or objectionable; and will probably not derogate from the value of adjoining or neighbouring properties. Moreover, it imposed an obligation on the local authority to ensure the absence of the disqualifying factors before it granted building permission.

The SCA was not amused. It was of the opinion that the Constitutional Court had gotten it all wrong and shortly afterwards the SCA in True Motives 84 (Pty) Ltd v Madhi and Others — using a far more literal and conservative approach to legal interpretation — found that it was the objector to the plans who had to satisfy the local authority about the positive existence of the disqualifying factors and also found that there was no duty on the local authority to ensure the absence of the disqualifying factors. It did so by arguing that the Constitutional Court’s interpretation of section 7(1)(b) was what lawyers call obiter dictum (an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding) and was therefore not binding on the SCA despite it having been made by a higher court.

Justice Jaftha, who has since been elevated to the Constitutional Court but had authored the Walele judgment while acting as a judge in the Constitutional Court, wrote a spirited dissent in the True Motives case. Justice Cameron, who has since also been elevated to the Constitutional Court, signed on to the majority decision in the SCA case in which it ignored the Constitutional Court interpretation of section 7(1)(b) of the relevant Act.

The table was therefore set for a rather interesting judgment when the applicants in the case of Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another raised the question of whether the SCA had ignored the principle of stare decisis (the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions) and had therefore unlawfully overrule the Constitutional Court’s Walele judgment. Jaftha and Cameron, who had been on different sides of this case in the SCA, would now have the opportunity to re-visit the issue as members of the Constitutional Court. And what would they say about the rather surprising argument by the SCA that the Walele interpretation of section 7(1)(b) was not binding on it?

Sadly, the Constitutional Court avoided dealing with the issue directly as it found that the applicants had not, in fact, relied on section 7(1)(b) in its long battle to stop the building of a rather fancy house in Camps Bay. But the Constitutional Court nevertheless proceeded to give the SCA and other courts a sermon on the importance of stare decisis (also called the doctrine of precedent in which lower courts are bound by the precedent set by higher courts).

Stare decisis, said the court in its judgment handed down last Thursday, was important because it ensured “certainty, predictability, reliability, equality, uniformity, convenience”. It then pointedly proceeded to remind the SCA:

The doctrine of precedent not only binds lower courts but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos….

Of course, it is trite that the binding authority of precedent is limited to the ratio decidendi (rationale or basis of deciding) and that it does not extend to obiter dicta or what was said ―by the way. But the fact that a higher court decides more than one issue in arriving at its ultimate disposition of the matter before it does not render the reasoning leading to any one of these decisions obiter, leaving lower courts free to elect whichever reasoning they prefer to follow. It is tempting to avoid a decision by higher authority when one believes it to be plainly wrong. Judges who embark upon this exercise of avoidance are invariably convinced that they are “doing the right thing”. Yet, they must bear in mind that unwarranted evasion of a binding decision undermines the doctrine of precedent and eventually may lead to the breakdown of the rule of law itself. If judges believe that there are good reasons why a decision binding on them should be changed, the way to go about it is to formulate those reasons and urge the court of higher authority to effect the change. Needless to say this should be done in a manner which shows courtesy and respect. Not only because it relates to a higher court but because collegiality and mutual respect is owed to all judicial officers, whatever their standing in the judicial hierarchy.

This extraordinary and pointed slap-down of the SCA by the Constitutional Court will hopefully not go unnoticed by the judges in Bloemfontein. Although the Constitutional Court refrained from expressing an opinion on whether its interpretation of section 7(1)(b) of the Act was part of the precedent that the SCA was bound by or merely obiter dicta, I suspect this passage quoted above was included in the judgment handed down last week to provide the SCA with the opportunity to see the error of its ways and to abide by the principles laid out by the Constitutional Court in the Walele case.

Whatever one’s views on the correct interpretation of section 7(1)(b) of the Act, the SCA’s argument that the interpretation provided of that section by the Constitutional Court was obiter dictum is rather difficult to justify. To this reader, the SCA decided that the Constitutional Court had given a wrong interpretation of the section and proceeded to ignore it – something it could not do as it was bound by the Constitutional Court’s interpretation.

It is not difficult to read the quoted passage above as a pointed criticism of the SCA. After all, the Constitutional Court by implication accused the judges of the SCA of inviting legal chaos by completely disregarding the ratio decidendi of a Constitutional Court judgment — merely because it thought the Constitutional Court judgment was wrong. As Braamfontein and not Bloemfontein now has the final say in the interpretation of legislation, one hopes that the SCA judges will heed the call and will change their “wicked ways”. In the end, this is not a fight they can ever win.

Criticism of Courts

Constitutional Court more pro-poor than the government

What happened to reasoned debate?

Justice Mogoeng – an unwise decision

Judges must keep their cool

On Lady DA-DA and the shower head man

How not to criticise a court judgment

The silence of Justice Mogoeng

Further reflections on academic criticism of courts

The Empire Strikes Back

Braamfontein = 1 : Bloemfontein = 0

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