Judiciary

On self-serving and untrue criticisms of the judiciary

Apr 4th, 2012

When US President Barack Obama on Tuesday said that he was confident that the US Supreme Court would not overturn parts or all of his signature health care legislation, some South Africans who blindly repeat the self-serving but blatantly untrue claims of their preferred leaders, might have been tempted to shout: “We told you so.”

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.

JSC will (finally) have to make a decision on Hlophe

Mar 31st, 2012

by Pierre De Vos.

25 comments

As I predicted, the Constitutional Court today dismissed the application of Judge President John Hlophe to appeal against two judgments handed down by the Supreme Court of Appeal (SCA) regarding the decision of the Judicial Service Commission (JSC) not to investigate the charges of gross misconduct against the Judge President.

In the first judgment, the SCA found that the Constitution requires the Premier of the Western Cape to sit on the JSC when it considers disciplinary action against a Western cape judge, with the effect that JSC had to reconsider both the Constitutional Court Justices’ complaint, and Hlophe’s counter-complaint.

In the second case, the SCA set aside the decision of the JSC “that the evidence in respect of the complaint does not justify a finding that HlopheJP is guilty of gross misconduct”, with the effect that the JSC had to reconsider the complaint against Hlophe by the judges of the Constitutional Court. In this second judgment it was pointed out that in a case like this where two versions of an event is presented it is required to cross-examine witnesses and make a determination on the preponderance of probabilities to determine who is lying and who is speaking the truth.

In a unanimous judgment by the Constitutional Court (Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der Westhuizen J, Yacoob J and Zondo AJ writing as “The Court”), it was decided that acting judges could not be appointed to hear the case and that it was not in the interest of justice for the “compromised” Constitutional Court to hear the merits of the two appeals from the SCA judgments.

The Court pointed out that section 167(1) of the Constitution provides that the Court consists of eleven Judges and that the Court usually sits en banc (in other words, with all 11 judges). However, section 167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. The problem in this case arose because six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued (but one acting judge – Ray Zondo - is currently serving on the Court). This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted mediation.

If these Judges were disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum for this Court to hear and determine the matters. Because of this unusual situation all the parties accepted that it was necessary for the Court (even with its possible five “tainted” judges) to decide whether Acting Judges may be appointed to the Constitutional Court in terms of section 175 of the Constitution to hear the application for leave to appeal and the appeal; and, if not, whether the existing judges should adjudicate upon the substantive merits of the applications for leave to appeal.

In terms of section1 75, the President may, on the recommendation of the Minister of Justice and Constitutional Development acting with the concurrence of the Chief Justice, appoint a woman or a man to be an Acting Judge of the Constitutional Court “if there is a vacancy or if a Judge is absent”. Pointing out that the “ordinary meaning of the word ‘absent’ carries some ambiguity”, the Court nevertheless found that:

any possible ambiguity is removed when we consider that the recusal from a particular case does not preclude Constitutional Court Judges from continuing to perform duties of their office. A recused Judge remains required to perform the rest of her judicial duties. The action of recusal is the performance of a judicial duty. The effect of a recusal therefore cannot be considered to be an absence… Recusal leading to a lack of a necessary quorum in this Court is an exceptional occurrence. Vacancies of Constitutional Court posts resulting from retirement, possible ill-health and death are not. Nor are temporary physical absences of Justices of the Court, caused by periods of leave, personal circumstances or some illness unusual. Viewed in a general context, it is clear that the purpose of section 175(1) is to deal with these normal instances of vacancies and physical absences.

This interpretation is supported if one took into account the context of the Constitution as a whole. In this regard one must remember that constitutional provisions relating to the appointment of Judges must be interpreted with due regard to the constitutional imperatives of separation of powers and entrenchment of judicial independence. There was a potential danger to judicial independence and the separation of powers whenever individual judges are appointment to hear a specific case. Mindful of this danger, it is not possible to interpret “absent” in section 175(1) as covering a situation where Constitutional Court Judges recuse themselves from hearing a specific matter.

The next question to be answered by the Court was whether the eight judges (three of them having been involved in lodging the complaint against Hlophe JP) nevertheless had to hear the substantive appeals because of section 34 of the Constitution, which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

The Court found (once again as predicted) that they could not hear the case and pointed out that section 167(6) of the Constitution does not provide litigants with a right to have their case heard by the Constitutional Court. Litigants only have a right to consideration of any application for leave to appeal. As the Constitutional Court found in S v Pennington and Another litigants do not have an automatic right of appeal. Leave must only be granted if the Court concludes that it is in the interests of justice to do so.

A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. All the parties were in agreement that this matter cannot remain pending. There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.

As I have thus argued consistently throughout this process, there is no right for anybody to have their case heard by the Constitutional Court. It is only when it is in the interest of justice to dos o, that the Constitutional Court hears a case (if it deals with a constitutional matter, of course).

This means that Judge President Hlophe’s attempt to stall the investigation into his alleged gross misconduct has finally come to an end. The JSC will now have to consider the matter again and will have to call both Hlophe and the accusing judges who will then be cross-examined to try and determine whether it was Hlophe or the judges of the Constitutional Court who lied.

But of course the JSC has in fact already admitted that it believes it was Hlophe who lied and not his accusers as subsequent to the complaints being made it appointed one of his accusers (justice Chris Jafta) to a permanent post on the Constitutional Court, something it would surely not have done if it had thought that he had lied about the alleged attempt by Hlophe JP to influence the Constitutional Court.

It will be interesting to see how the JSC deals with this hot potato. Who knows, it might even act correctly and restore some of its lost credibility. One lives in hope.

Assessment of judiciary represents a retreat for reactionary forces in government

Mar 27th, 2012

by Pierre De Vos.

43 comments

When cabinet spokesperson Jimmy Manyi announced in November last year that the cabinet had decided to have the decisions of the Constitutional Court assessed to determine how “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”, I wrote that on its face, this statement could be viewed as a positive development.

I went on to questioned aspects of the statement which suggested that “appropriate mechanisms be developed to facilitate … regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals”. This criticism was recently echoed by Acting Deputy Chief Justice Zach Yacoob, who said in a speech delivered at UCT Constitution Week that he could not agree with any suggestion that the two political branches of government had to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it.

Because of statements like these about the need for debates and discussion between three branches of government, statements repeated in the discussion document released last month about the proposed review of the Constitutional Court, concerns were obviously raised about the proposed review of the Constitutional Court. Why assess the Constitutional Court when we all know that the reasons for the lack of economic transformation in South Africa are structural (a huge skills shortage and race-based inequality, amongst them) and political (the deployment of unqualified politically connected people to positions in the state sector)?

This anxiety was further exacerbated by previous irresponsible and uninformed statements made by ANC Secretary General Gwede Mantashe about the judiciary destabilising the government and being used to undermine Parliament as well as the more recent perplexing comment by President Zuma that government did not “want to review the Constitutional Court, we want to review its powers”.

Now the Department of Justice has finally announced the terms of reference for the review, and it is looking good for the judiciary. There are two big surprises in these terms of reference. First, the Supreme Court of Appeal (SCA) has now been included in the review along with the Constitutional Court. Of course, given the fact that the original announcement only spoke about assessing the judgments of the Constitutional Court, there will immediately be questions asked about the inclusion of the SCA in the review so shortly after that court had made an adverse finding (on technical issues) in a case that could affect the future political career of the President of the country. But such fears may be allayed by the actual terms of reference of the proposed assessment.

This brings me to the second big surprise of this announcement, namely the actual terms of reference of this proposed assessment. These terms of reference shy away from the controversial (some would say bizarre) proposals about the fundamental weakening of the separation of powers between the judiciary and the other branches of government in order to “facilitate debates” between the three branches of government to ensure they act towards a common goal. The previous two documents both contained talk of this, but the terms of reference avoid this altogether and focuses on many of the really important issues facing the development of our constitutional jurisprudence.

The assessment will be a mammoth (if not impossible) task to complete, and will require “a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal since the advent of democracy” to try and establish:

the extent to which such decisions have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution; to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity; assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution.

The last aspect of this part of the brief is particularly welcome. Section 39(2) of the Constitution states that when courts develop the common law or customary law, they “must promote the spirit, purport and objects of the Bill of Rights”. Because there are not many lawyers and judges whose expertise lies outside the Constitutional Law field who actually engage with this provision seriously, there has been limited development of the common law, despite this powerful tool provided to lawyers to help mould the common law into a more egalitarian and fairer system or rules that focus more directly on whether the application of common law rules lead to just outcomes in particular cases.

In an article published in 2010 in the South African Journal on Human Rights, Dennis Davis and Karl Klare surveyed judgments over the first 15 years of the new dispensation, and found that although some leading judgments demonstrated the capability of the courts to transform the common law and provided glimpses of a more egalitarian, inclusive, and caring legal infrastructure, the jurisprudence is not without its limitations.

The authors found that the chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of powers issues. The authors argued that while the inhibiting effect of mainstream legal culture was not entirely responsible for these difficulties, it is nevertheless true that concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

It is also welcome to see that the review envisages a study of the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State and would aim to determine:

progress made and challenges encountered in the implementation of the decisions of these courts; legislation, policies and government programmes that have been put in place to give effect to these decisions; and capacity of the state within the available resources to realise the outcome envisaged by such court decisions.

This is indeed a huge and complex task, both in terms of the sheer volume of judgments that would have to be scrutinised but also because of the methodological challenges that will arise in deciding how progress by the State should be measured. How does one measure whether a particular decision about an unreasonable housing policy, say, was indeed implemented by the various departments (including provincial housing departments)? Would the study focus only on national government, or would it also focus on provincial government and local government (where most of the “delivery” happens and where most of the problems in implementing social and economic rights occur)? The terms of reference are unclear on this point.

Of course, one of the biggest problems in South Africa relating to the promotion and protection of the rights in the Bill of Rights is that most South Africans do not have access to courts. Poor people almost never get their cases heard by the Constitutional Court unless they can persuade an NGO’s (not a group of institutions much loved by the government) to take up a case on their behalf. Without NGO’s our jurisprudence would have been much impoverished – both in the field of social and economic rights jurisprudence and more general Rule of Law jurisprudence.

The review therefore requires that a study be conducted on direct access to the Constitutional Court through a comparative study of other jurisdictions, to identify factors that inhibit access to justice in relation to:

the costs of litigation; legislative frameworks, structures and processes that inhibit access; the right of access to the Constitutional Court by indigent and unrepresented persons; and whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.

The Constitutional Court discourages direct access to the highest court as such an approach will fail to ensure that the ordinary High Courts and the SCA deal with Constitutional Law cases and engage vigorously with Constitutional issues. It will also make it very difficult for the Constitutional Court to deal properly with cases that come before it. In the absence of a comprehensive programme to fund human rights litigation ordinary people will often not be able to get to the highest court. Of course, another option is to amalgamate the various Chapter 9 institutions dealing with human rights and to create a super Human Rights Commission that will take up cases on behalf of indigent people whose rights have been infringed by the state or private institutions. This was proposed by the Asmal Report, but the proposal has never been taken up by the government or by Parliament.

Judging from the terms of reference of the assessment of the Constitutional Court (and now the SCA), the government has retreated from its innitial far more problematic position about why the review was needed. Gone is the threatening tone and any mention of the assessment being needed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables”. Gone is any talk of the review being needed to promote “interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.

In short, as is often the case with the ANC-led government, there are obviously two competing views about the judiciary inside the government represented by the various statements about this assessment. The one faction is deeply hostile to the judiciary (after all, judges review and set aside unlawful and unconstitutional actions by the President and unconstitutional laws made by Parliament and judges also convict and send to prison those who have been proven to be corrupt). The other faction understands the importance of an independent judiciary that is eager and empowered to implement the many progressive aspects of the Constitution. The original cabinet statement seemed to be influenced by the first faction, while the latter faction seemed to have had a bigger hand in preparing the terms of reference.

If done well, it might well assist the government to provide better access to justice and to create the mechanism that would help it to better implement progressive court judgments.

It remains an open question whether any institution or a number of institutions will actually be able to complete this review in the 18 month period envisaged by the terms of reference. After all the SCA delivers over 250 judgments each year while the Constitutional Court hands down between 30 and 40 judgments a year. That means the reviewers will potentially have to consider more than 5000 judgments and will then have to ask how all the relevant judgements (selected from these 5000) have impacted on the state and to what extent the state has actually implemented the relevant judgments. Quite frankly, I am not sure this is practically possible at all.

All I can say is: I am glad it’s not a job I will have to do.

Chief Justice instructs judges to attend Christian leadership money spinner

Mar 15th, 2012

by Pierre De Vos.

105 comments

When Justice Mogoeng Mogoeng was “nominated” as Chief Justice by President Jacob Zuma some of us argued that, while it was perfectly normal for a judge to profess his or her religious views (or to be an atheist for that matter), Justice Mogoeng’s continued involvement (as a lay preacher) in a Church that held views that conflicted directly with the provisions of the Bill of Rights would be inappropriate. Now the Mail & Guardian reports that the Chief Justice has used his position as Chief Justice to try instruct senior members of the judiciary to attend a “leadership conference” held by an American evangelist.

The email sent on his behalf reads as follows:

—————-
From: Moekoa Desmond On Behalf Of Sejosengwe Memme
Sent: Tuesday, March 06, 2012 2:48 PM

To: Judge Mogoeng Mogoeng (Contact); Mpati Lex; Ngoepe Bernard; Mthiyane Khayelihle – Judge; Hlophe J – Judge; Musi Hendrick; Mlambo Dunstan; Leeuw Monica; Kgomo Diale; Sangoni Clement – Judge; Davis Dennis; Patel Chimanlal – Judge; Meer Yasmin

Cc: ‘Khwezi Mabaso’; Ngakantsi Boitumelo; Etsebeth Ilonka; Sheldon Astrin; Van Niekerk Sandra; Lemmetjies Gaynor; Mogotsi Reetsang; Malgas Ncumisa; Martin Heidi Deidre; Bihl Rowena; Raleie Motsholathebe; Morar Devika; Opperman Liezl; Motsepe Caroline; Molapo Emily Motlhatlego; Sejosengwe Memme

Subject: Leadership event with Drs John Maxwell and David Molapo

Honourable Judges President/ Heads of Court

Kindly see the attached invitation for your urgent attention. By the direction of the Chief Justice, Heads of Court/Judges President and their Deputies or the most senior judge in the divisions where there are no Deputy Judges President, are hereby requested to be available for the above-mentioned leadership conference.

It will be appreciated if confirmations for attendance can be submitted to the secretariat by end of business on 07 March 2012.

With kind regards

Memme Sejosengwe (Ms)
Secretariat: Heads of Court Forum
Judicial Court Services, Office of the Chief Justice

The flyer for this event depicts the smarmy faces of several blow-dried evangelicals who would be involved in this “leadership conference” hosted by the Hope Restoration Ministries. The conference cost R650 to attend but one is promised 7 DVD’s and a CD as well as a participants manuel if one attends. The flyer, in true commercial style, states that the “total package value is R2745 and that one will saveR2095 if one made use of this special offer.

Even if this event had nothing to do with the promotion of a particular evangelical Christian world view, it would be entirely inappropriate for the Chief Justice to ask senior judges to attend as it is a private business venture and by “requesting” senior judges to make themselves available for this event the Chief Justice is promoting private business interests.

It is also even more inappropriate in a country like ours where people of diverse religious beliefs serve on the bench, for a Chief Justice to send such a “request” to the leadership of the judiciary. More so because this event is a money-making racket for a set of evangelical Christians. Dr John Maxwell says that one must: “Stay focus[ed] on what God has assigned me to do. Keep my mind on what I am doing,” while the Constitution enjoins judges to stay focused on what the Constitution and the law has assigned them to do.

Imagine a senior judge had sent a similar instruction to attend a Muslim “leadership conference” or one hosted by Richard Dawkins, the avowed atheist. It would rightly have created a storm of protest as it would have signalled that the Chief Justice is attempting to influence members of the judiciary to come around to his way of thinking on religious matters. This is no different.

As judges are enjoined by the Constitution to act impartially and without fear, favour or prejudice and as the Constitution does not require judges to embrace a form of evangelical Christianity in order to do their job and as the Chief Justice is not empowered to use his position as Chief Justice to try and advance a business venture of a commercial enterprise, this email is deeply troubling.

Any judge in South Africa can hold any views about religion that he or she wishes. He or she can be a member of the Catholic Church or a devout attendee of Dutch Reformed Church services, can be an atheist, a Hindu or a Muslim or can believe that there is no god at all. What that judge is not allowed to do is to use his position to promote a commercial venture, one that is being run by a person with a particular view of Christian religion.

At the very least the Judicial Service Commission (JSC) should censure the Chief Justice for abusing his office to advance a business venture and for trying to promote a certain religious view within the judiciary. Section 165 states, inter alia that:

4. No person or organ of state may interfere with the functioning of the courts.

5. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

To assist and protect the courts to ensure their independence, impartiality and dignity the JSC has a Constitutional duty to take steps to ensure that this abuse of office never happens again. If they do not, there is a danger that the CHief Justice will again use his position to further a specific evangelical business venture, tarnishing the dignity of the office of the Chief Justice and sending a signal that our judiciary serves not all the people of South Africa but only those who adhere to a specific evangelical Christian view of the world. This would fundamentally erode the independence of the judiciary which is guaranteed not only on formal protections but also by ensuring that the perception does not take hold that members of the judiciary act with a specific religious agenda when it hears cases.

Another blow to the credibility of the JSC?

Mar 9th, 2012

by Pierre De Vos.

100 comments

At first blush it may appear as if South Africa’s judges and senior constitutional lawyers have all been struck by a remarkable bout of humility and lack of ambition – not traits your average lawyer or judge is usually suspected of. Why else would no credible candidate (except Labour Appeals Court judge Ray Zondo) allow him or herself to be nominated for a job on South Africa’s Constitutional Court?

The Judicial Service Commission (JSC) announced yesterday that no one was shortlisted for the vacant position on the Constitutional Court because there were not a sufficient number of suitable candidates to shortlist for this job (despite an extension of the deadline for nomination to the highest court).

Apparently not even Justice Mandisa Maya of the Supreme Court of Appeal (who is currently acting on the Constitutional Court) put her name forward for nomination to the highest court. Neither did any of the other female candidates who might plausible stand a chance of being appointed to the Constitutional Court.

This might seem curious, as currently only two of the eleven serving judges on the Constitutional Court are female. If one were to take seriously the claim by the government and some members of the JSC that they were committed to apply section 174(2) of the Constitution when they considered judges for appointment – a section that states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” – then one would have thought that the JSC would clamour to recommend a number of credible and competent female judges for appointment and that the President would appoint a woman judge to the vacant position.

Section 174(4) prescribes the procedure for the appointment of ordinary judges to the Constitutional Court (that is, Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice):

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.

The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.

The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

This means that when there is one vacancy on the Court (as is presently the case), the JSC must select four appointable candidates and must submit this list of four names to the President who can then select one of the four names nominated by the JSC after the requisite consultation with the Chief Justice (and opposition parties). One assumes that the JSC decided that there were not four appointable nominees and the process was thus aborted. The reluctance of suitably qualified women judges or academics to put their names forward during this round could be explained in several ways.

First, it might be that all the strongest women candidates currently believe that the JSC and the President are not serious about gender transformation of the bench. If this were to be so, the question would arise as to why this perception could have taken hold. Some might argue that the appointment of a Chief Justice (whose previous judgments exhibited a rather lenient approach to sexual violence against women) might have helped to create this perception. The perception could also have been fostered by the previous round of appointments when only one of the four candidates appointed to the Constitutional Court was a woman, despite the fact that several strong female candidates were in the running for appointment.

Second, a perception might have been created that the Chief Justice and the majority of members of the JSC had already decided who it wanted to appoint to the Constitutional Court this time around and that any process in which candidates were interviewed would be little more than a sham aimed at providing some credibility to a formal exercise whose outcome was predetermined. (I have no credible information indicating that such a perception had been created or if it had been created, how it might have arisen and who the preferred candidate might be.)

Third, the fact that so few candidates were prepared to put their names forward for appointment to the Constitutional Court may well be based on a lack of trust in the JSC and the process it follows to decide who to nominate for appointment. Given the way in which it has conducted itself in the past, this body is perhaps suffering from a serious lack of credibility. The sycophantic behaviour of some members of the JSC during the interview conducted last year with the only “nominee” for the post of Chief Justice, might have helped to create this distrust in the ability or willingness of members of the JSC to conduct real and helpful interviews with candidates.

Moreover, the persistent failure by almost all JSC members to engage nominees on their judicial philosophy and their attitudes to the substantive legal issues, may have disheartened most credible candidates who may have felt that their intellectual abilities, their progressive judicial philosophy and their compassion will not be noticed because of a lack of substantive probing questioning put to them and, if it were to be noticed, would play no role in the decision on who to nominate or appoint.

Why do JSC members seldom ask a nominee about his or her views about the role of the courts in transforming the common law by applying section 39(2) of the Constitution to interpret and develop the common law in order to bring it in line with the spirit, purport and objects of the Bill of Rights? Such questioning would provide the JSC with telling information about the transformation credentials of the candidate. Why do members of the JSC almost never ask a candidate about his or her views on “reasonableness review” in social and economic rights cases and whether this standard of review was appropriate? Why are candidates almost never asked how they view hate speech and its limits?

Why are candidates not confronted with questions about the nature of our democracy established by our Constitution? It would be helpful to know whether a candidate is a strong supporter of the view that our Constitution requires a form of participatory democracy and that it requires judges to act decisively to protect and advance the rights of citizens to enable them to participate in our democracy. It would also, surely, be helpful, to know whether a candidate slavishly supports a narrow notion of representative democracy and envisages a limited role for courts in safeguarding the democratic rights of citizens.

Surely both the Chief Justice and the other members of the JSC need to do serious introspection about the process through which Constitutional Court judges are nominated and appointed to the Constitutional Court? Surely one can find a way to balance the requirement to appoint an intellectually curious, highly intelligent, technically competent and principled judge on the one hand, with the requirement to appoint a compassionate, progressive judge imbued with the transformative values of the Constitution on the other?

But to do that, one will have to be prepared to appoint judges that are capable and willing to engage in robust intellectual debates with the members of the JSC and incumbent members of the Constitutional Court (after appointment) and will interpret and apply the Constitution with integrity and in a fearless manner. The question inevitably arise whether the JSC is prepared to nominate and the President is prepared to appoint such judges, or whether they would rather appoint an altogether more timid, conservative and intellectually pliant crop of judges.

Another brilliant idea by our political youngsters

Mar 2nd, 2012

by Pierre De Vos.

123 comments

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

This is not surprising.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mixed signals on the review of our courts

Feb 29th, 2012

by Pierre De Vos.

105 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why so little trust in the judiciary?

Feb 28th, 2012

by Pierre De Vos.

48 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

A 75% majority needed to amend powers of Constitutional Court?

Feb 17th, 2012

by Pierre De Vos.

66 comments

The statement by President Jacob Zuma about the need to “review” the powers of the Constitutional Court has elicited much comment. The Black Lawyers Association (BLA) has issued a welcome statement in which it argued – as I did earlier this week – that an amendment of the powers of the Constitutional Court would mean that we would be abolishing the current constitutional democracy “and remarry the parliamentary sovereignty”. On reflection, I suspect that I was wrong and that the powers of the Constitutional Court can be amended in such a way that we would not return to a system of parliamentary sovereignty, but which would return us to a system in which the supremacy of the Constitution as well as the Rule of Law is not upheld.

Let me explain.

The BLA correctly points out that such an amendment would be unlikely to hold water as it might require a 75% majority of members in the National Assembly to vote for it. The ANC at the moment has 65.9% of the seats in the National Assembly (3 seats short of a two-thirds majority)and the DA, Cope and the IFP (who would presumably all be opposed to such an amendment) holds 28.5% of the seats in the National Assembly. This means that the ANC will not be able to garner the necessary 75% majority to validly change this aspect of the Constitution.

This argument might, at first, seem strange as the powers of the Constitutional Court are contained in chapter 8 of the Constitution and the provisions in this chapter can be amended by a two thirds majority of members of the National Assembly (and six of the nine delegations in the National Council of Provinces). Section 165(5) states that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies”, based on the assumption that an order or decision is made by the majority of judges sitting in a case.

Section 167 of the Constitution sets out the powers of the Constitutional Court, confirming that the Constitutional Court is the highest court in all constitutional matters; that it may decide only constitutional matters, and issues connected with decisions on constitutional matters; and that it makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Section 167(4) states that only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; and may decide on the constitutionality of any parliamentary or provincial Bill referred to it by the President or Premier or Acts referred to it by 30% of the members of a legislature. That Court also has exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution; and to decide that Parliament or the President has failed to fulfil a constitutional obligation.

The pivotal section is probably section 167(5) of the Constitution, which states that:

The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

How could these powers be amended? One possibility is that the Constitution could be amended to remove the power of the Constitutional Court (as well as other courts) to review acts of the President and/or other members of the executive. This would mean that the Constitutional Court would retain the power to declare invalid acts of various legislatures but that it would not be allowed to inquire into whether the President or perhaps other members of the executive have infringed the rights of anyone or have acted in breach of their constitutional or other legal duties.

This would not make Parliament supreme again, but two other very serious and deeply problematic consequences would inevitably flow from such a possible amendment.

First, the executive would become more powerful and we would move in the direction of creating an imperial Presidency (much like the imperial Presidency created by the 1983 tricameral Parliament under PW Botha). This is because, in controversial matters, the majority party in Parliament will try to circumvent judicial review by the courts by delegating more and more power to the President and/or his executive. Although our courts have argued that unlimited delegation of powers by the legislature to the executive is not allowed as it infringes on the separation of powers (hence the declaration of invalidity of the provision on which the President relied to try and extend the term of office of the former Chief Justice), the Parliament would obviously delegate as much power as it legally can to the President.

As the President is not democratically elected (but elected by the National Assembly, which in effect means at the moment that it is elected by just over 4000 delegates at the ANC elective conference), such a move has the possibility of eroding the democratic nature of our system of government.

Second, the President would no longer be subject to the Constitution and the law and would, in effect, be above the law. If the President failed to exercise his powers as dictated by the Constitution or other legislation (as he was found to have done in the Menzi Simelane case) or if he acts in a way that infringes on the rights of others, his actions would not be reviewable and the President would then potentially become a law unto himself.

This would result in an indirect amendment of section 1(c) of the Constitution, which states that our democracy is founded, inter alia, on the value of the supremacy of the constitution and the rule of law. There will no longer be a supreme Constitution and neither will there be full respect for the Rule of Law. Even if section 1(c) of the Constitution is not itself amended, such an amendment to section 167 would result in an effective scrapping of section 1(c). This would, I contend, require a 75% majority in the National Assembly.

If Parliament amended section 167 in this way but relied on a two-thirds majority in the National Assembly in terms of the section 74(3) process, the Constitutional Court would be able to review this amendment and would be able to declare it invalid on the ground that the amendment should have been passed in terms of the section 74(1) process which requires a 75% majority in the National Assembly.

What the Constitutional Court would almost certainly not be able to do is to review an amendment on grounds not related to the question of whether the correct procedure (as prescribed in section 74) was used when the Constitution was amended. Some commentators seem to have suggested that the Constitutional Court can declare invalid a constitutional amendment because it clashes with other provisions in the Constitution. This is not correct. In the floor crossing case the Constitutional Court made this clear when it found that:

Amendments passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.

The curious part of this statement is that the part where the Court stated that there is “little if any” scope for such a review. This phrase probably gestures at the obiter dictum (not binding opinion) by Justice Mahomed in the Premier, KwaZulu-Natal v President of the RSA judgment, in which he raised the possibility that amending the basic structure of the Constitution would itself not be permissible. In that case he stated that:

It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an “amendment” at all.

But this statement was made with reference to the Interim Constitution, which did not contain a super-entrenched founding values section similar to section 1 in the 1996 Constitution. I would think that our Constitutional Court would argue that an amendment of the provisions of section 167 which would remove some powers from the Constitutional Court would amend the “basic structure” of the Constitution, but that the essence of this “basic structure” is contained in section 1 of the Constitution and therefore requires a 75% majority in the National Assembly.

The consequence of this is that the ANC dominated Parliament will not be able validly to amend the Constitution to radically reduce the powers of the Constitutional Court. If it did, the Constitutional Court will declare that amendment invalid. What would happen after that is, of course, anyone’s guess.

An unambiguous attack on constitutional democracy

Feb 14th, 2012

by Pierre De Vos.

117 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judiciary

On self-serving and untrue criticisms of the judiciary

JSC will (finally) have to make a decision on Hlophe

Assessment of judiciary represents a retreat for reactionary forces in government

Chief Justice instructs judges to attend Christian leadership money spinner

Another blow to the credibility of the JSC?

Another brilliant idea by our political youngsters

Mixed signals on the review of our courts

Why so little trust in the judiciary?

A 75% majority needed to amend powers of Constitutional Court?

An unambiguous attack on constitutional democracy

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