Judiciary

President Zuma and the separation of powers

Jul 11th, 2011

The remarks made on Friday by President Jacob Zuma in front of an audience of judges at the Access to Justice conference in Johannesburg, has elicited much comment. Given the manner in which President Zuma became President after corruption charges were inexplicably dropped against him, his appointment of the tainted Menzi Simelane as National Director of Public Prosecutions and the utterances by some of his supporters about so called “counter-revolutionary judges” - made in the period when Zuma was being pursued on corruption charges - it is perhaps understandable that not everyone would trust President Zuma’s bona fides on the issue of an independent judiciary and the supremacy of the Constitution.

However, it is important to keep a clear head and not to overreact to what the President has said. In South Africa we have a tendency to interpret statements according to the preconceived template constructed by our fears, suspicions and prejudices – and often do not properly hear and understand what a political opponent might have said. At the same time this is a pivotal issue for our democracy and it is therefore important to look at the words of the President carefully to see whether it makes sense and whether it can be squared with our system of separation of powers and constitutional supremacy.

President Zuma - quite correctly, in my view - stated that one must distinguish the areas of responsibility between the judiciary and the elected branches of government. Although our courts have often said that there is no bright line boundary between the three branches of government and that it is not always easy to distinguish between the work done by the three branches, it has always maintained that some aspects of decision making is more appropriately left to the non-judicial branches of government. There is therefore no disagreement between the judiciary and the President on this point.

President Zuma then continued:

The Executive, as elected officials, has the sole discretion to decide policies for Government. This means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.

Although this statement is not a model of clarity and can be interpreted as meaning that judges cannot issue orders that would affect the ability of government to make the policies it sees fit, I take it to mean that the executive – rather than the judiciary – is the appropriate branch to formulate policy which can then be tested by the courts for constitutional compliance. If one assumes that the President accepts that government policies can be declared unconstitutional and that Courts can tell the executive that some policy choices are constitutionally invalid, then this view seems correct.

Courts cannot formulate policy, but of course, judicial decisions will often affect the policy choices a government is required to make. The decision in the Cape High Court in the Makhaza toilet’s saga is a case in point. As the court had found that providing open toilets to residents of Makhaza infringed on their rights, this radically circumscribed the policy choices on sanitation open to the City of Cape Town. As our Constitution empowers courts to make orders that will vindicate the rights of ordinary citizens, in principle there is nothing wrong with this course of action,

This was made clear in the Treatment Action Campaign case where the government’s lawyers – perhaps under pressure from the tea-guzzling, garlic and beetroot-eating, Minister of Health – argued that even where a court finds that government policies fall short of what the Constitution requires, the only competent order that a court can make is to issue a declaration of rights to that effect. That leaves government free to pay heed to the declaration made and to adapt its policies in so far as this may be necessary to bring them into conformity with the court’s judgment.

This, so the argument went, is what the doctrine of separation of powers demands. Government lawyers contended that under the separation of powers doctrine the making of policy is the prerogative of the executive and not the courts, and that courts cannot make orders that have the effect of requiring the executive to pursue a particular policy.

In the TAC case the Constitutional Court rejected the argument that it could not make orders that would have policy implications for the government. The Court stated as follows:

This Court has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.

Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of state can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so.

Especially in social and economic rights cases courts will be required to evaluate state policy and to give judgment on whether or not it is consistent with the Constitution. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant “appropriate relief” that are – in the wording of section 172(1)(a) – “just and equitable”. As the Court stated in the TAC case:

We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.

The President’s argument about policy formulation being left to the executive may therefore be seen as a bit naive and simplistic as it may be read as assuming that court judgments must never impact on government policy formulation. In a constitutional state that would be impossible. However, one could also interpret the passage generously, in which case the President can be assumed to have said nothing more than that the executive will always have the final say on what policy to formulate and implement – as long as the policy complies with the Constitution as interpreted by the judiciary.

What was perhaps more worrying is that the speech may be read as indicating that President Zuma resents the fact that all executive action is subject to the discipline of the Constitution and that in a constitutional democracy with a supreme Constitution the executive is not free to act as it sees fit and to adopt the policies of its choice as it sees fit and implement those policies as it sees fit. He also seems to suggest that when political opponents raise constitutional issues to score political points and/or approach a court to vindicate the constitutional rights of ordinary citizens or to uphold the Rule of Law and the Constitution, a court should not entertain such questions. This is clearly wrong.

President Zuma stated that the executive “must be allowed to conduct its administration and policy making work as freely as it possibly can” and then continued:

The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections. Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.

The problem with this statement is that it – wrongly – assumes that one can always make a distinction between “political disputes” on the one hand and constitutional questions on the other. Often, opposition parties or civil society groups will challenge the constitutionality of a legal provision or of action by the executive or an organ of state and they have every right to do so. Often such challenges will deal with issues that are highly political but that may also raise constitutional questions. The mere fact that unconstitutional action by the executive is criticised by opposition parties who – as is their right – might exploit this alleged unconstitutional action for political gain in order to show up the government of the day, does not preclude any court from declaring such action unconstitutional.

Political disputes and constitutional disputes often overlap: Is the provision on which the President relied to extend the term of office of the Chief Justice constitutionally valid? Did the Judicial Service Commission act lawfully when it decided not to investigate the complaint agianst Judge President John Hlophe? Is a municipality entitled to evict poor people from buildings in the inner city of Johannesbsurg as part of a programme of gentrification? Can the President fire the head of the intelligence service? Can Parliament pass a law to force “coloured” workers to move to provinces where they are not in “oversupply”. Is the policy on forcibly installing pre-paid electricity meters in poor, black, areas of Johannesburg constitutionally valid? All these questions are BOTH political (in the sense that it deals with governance issues) AND constitutional in nature.

Our courts have a right and a duty to declare action or inaction by the government or organs of state unconstitutional if it does not comply with the Constitution. It is irrelevant whether the case happens to have been brought to the court by a political party or whether the issue raised before the court is politically charged. What a court has to do is to declare invalid unconstitutional behaviour – no matter whether that unconstitutional behaviour had been endorsed by 2400 delegates at an ANC conference at Polokwane, or by 12 million voters during a general election. This is what it means to live in a constitutional democracy. The sooner everyone gets used to this, the better.

Where a court declares the actions or failure to act on the part of the executive to be unconstitutional, the court is not helping opposition parties or civil society to co-govern the country. The court is merely upholding the Constitution. The executive can prevent political opponents from politically embarrassing the governing party and the executive, by making sure that its actions always comply with what is required by the Constitution. Of course, for that to happen the executive would need good legal advice, which I fear, is often not provided. But maybe that is an issue for another day.

Courts have a pivotal role to play in upholding the Constitution. When they do this, they help to protect everyone – including the poor, marginalised and vulnerable – from abuse of power by venal, tardy, overwhelmed or heartless government officials. They also help to hold the executive to account and to protect our democracy in the name of the people. Just like the other two branches of government, a properly functioning judiciary must therefore also be seen as representing the interests of the people and when one talks about the separation of powers one should be careful not to suggest that the judiciary has less legitimacy merely because its judges were not directly elected by about 35% of the citizens who bothered to vote for the majority party at the last election.

On the Constitutional Seventeenth Amendment Bill

Jul 5th, 2011

by Pierre De Vos.

18 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jun 16th, 2011

by Pierre De Vos.

36 comments

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

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

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

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

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

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

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

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

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

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

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

On the term of office of the Chief Justice

Jun 7th, 2011

by Pierre De Vos.

34 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is not the end of the matter, though.

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

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

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

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

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

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

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

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

What now for Judge Aikona Motata?

May 23rd, 2011

by Pierre De Vos.

26 comments

News that the Judicial Conduct Committee (JCC) has found that race remarks made by judge Nkola Motata constituted a prima facie case of gross misconduct, might confuse many readers who are not familiar with amendments to the Judicial Service Commission Act. These amendments changed the manner in which the JSC deals with complaints of misconduct against judges. These amendments might well assist the JSC to avoid the kind of embarrassing legal defeats it has suffered over the years regarding its handling of complaints, as it sets out in great detail how complaints against judges should be dealt with.

The Act now establishes a Judicial Conduct Committee (JCC), who must receive and consider all complaints against judges. The Committee comprises of the Chief Justice (who is also the chairperson of the Committee), the Deputy Chief Justice, and four other judges, at least two of whom must be women, designated by the Chief Justice in consultation with the Minister. These four judges are appointed for a term of up to two years. The Act makes clear that in the event of an equality of votes being cast by the Committee members present at a meeting, the person presiding at that meeting has a deciding vote in addition to his or her deliberative vote.

It was this Committee (comprising only of judges) who have decided to refer the complaint against Judge Motata to a Judicial Conduct Tribunal for a full hearing. This is what happens, I guess, when politicians and political appointees are not involved in decisions about complaints against judges — it helps to de-politicise the handling of the complaint.

As the JCC comprises only of judges, the judiciary retains some control over the disciplining of judges, which seems appropriate to me. The Chief Justice will usually have a deciding vote if those members of the JCC present at a meeting are deadlocked. The establishment of Judicial Conduct Committee will therefore remove some of the politics out of the JSC’s consideration of complaints against judges.

Any person may lodge a complaint against a judge with the JCC, alleging incapacity on the part of a judge giving rise to a judge’s inability to perform the functions of judicial office in accordance with prevailing standards, or gross incompetence, or gross misconduct, as envisaged in section 177(1)(a) of the Constitution.

It is important to note that the Act for the first time allows for the consideration of ”lesser” non-impeachable offences not mentioned in the Constitution, including “any wilful or grossly negligent breach of the Code of Judicial Conduct” (which has been drafted by the Chief Justice in consultation with the Minister of Justice) and a failure to declare registrable interests. Accepting, holding or performing any office of profit or receiving any fees, emoluments or remuneration or allowances in contravention of the Act, is now also prohibited, but would usually not on its own constitute an impeachable offence.

(The latter two provisions could be called the Oasis/Hlophe amendments as they deal with some of the issues raised during Judge President Hlophe’s original brush with controversy.)

The JCC may also investigate any wilful or grossly negligent failure to comply with any remedial step proposed by the JCC in cases where it had previously found that a judge had been guilty of a serious but non-impeachable offence.

Where the JCC makes a finding that the complaint prima facie indicates incapacity, gross incompetence or gross misconduct on the part of the judge, the JJC may refer the matter to the Judicial Conduct Tribunal (JCT) or may decide that it does not constitute an impeachable offence, in which case it will refer it to the Chairperson (usually the Chief Justice) for an inquisitorial inquiry. In the latter case the Chairperson may then impose remedial steps on the judge after conducting a hearing.

If the JCC decides that there is a serious case to answer that may lead to impeachment, it will refer the matter to the Judicial Conduct Tribunal which consists of two judges, one of whom must be designated by the Chief Justice as the Tribunal President; and one person who is not a judge but whose name appears on a list of persons who have been approved by the Chief Justice, acting with the concurrence of the Minister of Justice. The JCT is therefore dominated by judges — not by politicians or non-judges.

The JCT will then hear evidence and in an inquisitorial process try to determine where the truth lies. The aim would be to get to the truth behind the complaint and there would be no onus on any of the parties to prove or disprove any fact. In other words, the formal rules that apply in an accusatorial system would not apply and the aim of such an inquiry would be to get to the bottom of the complaint against the judge. This is important as this would make it impossible for the Tribunal to reject a complaint merely because a judge provides a different version of events than the complainant. At such a hearing the judge would be able to lead evidence and have witnesses cross examined. The Tribunal may also subpoena witnesses and order them to produce any documents relevant to the inquiry.

The catch here is that the Tribunal will usually do its work in secret — which is perhaps a reason why the JSC would want to deal with the complaint against Judge President Hlophe in terms of the new rules. However, the Tribunal President may in the public interest and for the purposes of transparency, determine that all or any part of a hearing of a Tribunal must be held in public. This decision must be taken in consultation with the Chief Justice. As is the case with many other aspects of these amendments, the role of the Chief Justice is pivotal. The whole system now depends on the integrity and wisdom of the Chief Justice, which is why — at present — it will probably work much better than the previous politicised JSC process.

The Tribunal must then report to the properly constituted JSC on its findings and must also provide the JSC with all the relevant documents. The JSC can then decide to accept or reject the findings of the Tribunal as the JSC is constitutionally required to decide whether it wants to recommend impeachment of a judge to the National Assembly.

If JSC rejects the findings of the Tribunal, it will obviously delegitimise itself and the judiciary as a whole, so even though the JSC is not above politics it is going to be very difficult for the JSC to reject a finding made by a Judicial Conduct Tribunal. Such a decision by the JSC to reject the factual and legal findings of the Tribunal would, in effect, be mean that the JSC would be replacing a legal and factual decision with a purely political decision. This will cause severe harm to the judiciary and would obviously destroy the legitimacy of the JSC.

Where does this leave Judge Nkola Motata?

Well, Judge Motata will now probably face a full inquiry by the Judicial Conduct Tribunal (if news reports are correct), and the Tribunal will have to investigate the complaint, which relates to remarks Motata made after he crashed his car into a wall in Johannesburg while drunk. An audio recording of the events was played in the Johannesburg Magistrate’s Court during his drunk driving trial. Among other things, Motata seemed to have channelled his inner Julius Malema and said with reference to Richard Baird, owner of the house where the crash happened: “No Boer is going to undermine me. This used to be the white man’s land, but it isn’t anymore.” Motata also allegedly told members of the Johannesburg metro police that “they should not support the white man.”

His fate now rests in the hands of two judges and a lay person. It will be interesting to hear who will sit on the Tribunal. Obviously, a finding that a judge is racist must surely lead to a recommendation of impeachment. Some conservative critics of the JSC and of transformation of the judiciary might well cheer on the Tribunal in a display of schadenfreude as they would love to see the downfall of a judge who happens to be black and just had one cup of tea too many and said what many other people think.

But they should think twice before they rejoice about any such possible finding. Unlike in Kenya where the new Constitution requires a vetting of all judges for re-appointment, many judges in South Africa were appointed before 1994 and have never been vetted to see if they comply with basic requirements of honesty and adherence to values of non-racism. It would be surprising if some of these judges (as well as judges — both black and white — appointed after 1994) do not privately express racist beliefs or ideas based on racial prejudices that would make them unfit for judicial office if expressed publicly.

A finding against Judge Motata – a finding which is by no means certain and which I do not pre-empt — might therefore send a welcome message to judges of all races who harbour prejudices based on race, sex, gender, religion or sexual orientation. Whatever happens, the way in which the Tribunal and the JSC deal with the complaint against judge Motata presents an opportunity to improve perceptions about the JSC and, ultimately, the judiciary.

Finally the truth might be revealed

Mar 31st, 2011

by Pierre De Vos.

128 comments

In a stunning (but to some of us not surprising) judgment handed down today, a unanimous bench of 5 judges of the Supreme Court of Appeal (SCA) (Streicher JA, concurred in by Brand, Cachalia, Theron and Seriti JJA) found that the decision of the Judicial Service Commission (JSC) that the evidence in respect of the complaint by the Constitutional Court against Judge President John Hlophe does not justify a finding that Judge President is guilty of gross misconduct and that the matter accordingly be “treated as finalised”, constituted an abdication of the JSC’s constitutional duty to investigate the complaint properly and was therefore unlawful and invalid.

In essence the SCA found that the JSC had not done its duty as required by the Constitution because it attempted to sweep this matter under the carpet. By assuming that because there were two versions of what happened — one presented by Hlophe and another presented by Justice Jafta and Nkabinde – that cross-examination of the witnesses who presented these conflicting versions would serve no purpose and hence that no further and proper investigation was required, the JSC did not act lawfully. As the judgement states:

It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

It is important to note that this judgment should not be seen as pre-judging the issue of whether Hlophe did indeed attempt to influence the judges of the Constitutional Court. Judge Hlophe is therefore not necessarily the big loser of today’s judgment (although he was slapped with a cost order). We do not know for certain what happened when Hlophe went to speak to Jafta and Nkabinde as there are two diametrically opposed versions of these discussions. If Hlophe’s version is the true one, he may even emerge as the winner in this sad and sorry saga. But what we do know now is that it is the job of the JSC to find out what happened. It is their failure to do so that came under attack today.

The winner today was not so much the judges of the Constitutional Court or Freedom Under Law (FUL). Instead, the judicial system and the citizens of South Africa were the ultimate winners today. After all, as the SCA noted, it is in the interest of every South African citizen that the JSC should properly and lawfully deal with every complaint of gross misconduct by a judge that may threaten the independence and impartiality of the courts and may justify the removal of that judge from office. Should the JSC shirk its duty in this regard, it can have grave repercussions for the administration of justice.

The judgement does leave the JSC with some egg on its face though. It shows up the JSC decision not to pursue the complaint against Hlophe as a deeply flawed one and finds that the reasons provided by the JSC for its decision were clearly unjustifiable.

Recall that the JSC decided to dismiss the complaint (by the Constitutional Court judges) and the counter-complaint (by Judge President Hlophe) because the majority of its members were of the view that the evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP did not establish and, at a formal enquiry, could not establish that Hlophe JP had attempted to improperly persuade them to decide the cases in Mr Zuma’s favour. It found that Jafta AJ’s evidence alone could not establish grounds for a finding of gross misconduct and that the evidence of Nkabinde J which contradicted that of Hlophe JP was immaterial to the matter at hand.

The SCA found this latter finding of the JSC irrational as Hlophe JP contradicted almost everything that Nkabinde J said. It follows that the JSC considered virtually everything that Nkabinde J said, thus virtually everything on the strength of which she drew the inference that Hlophe JP tried to influence her, to be immaterial in respect of the question whether he tried to influence her.

It cannot conceivably, rationally be considered to be immaterial to the question whether Hlophe JP tried to influence Nkabinde J that Hlophe JP said, when making an appointment to see her, that he had a mandate, that, when he visited her, he said that the reason why he was there was that a concern had been raised that people in the Constitutional Court did not understand our history, that he said, when asked who those people were, that ‘he has connection with some ministers’, that he said that the question of privilege should be decided properly because the prosecution’s case rested on it, that Nkabinde J reprimanded him for speaking about a case he was not involved in, that he said that there was no case against Mr Zuma and that Mr Zuma was being persecuted, that he said that some of the people implicated in the arms deal whose names appeared on a list he had obtained from National Intelligence were going to lose their jobs when Mr Zuma became President. These were the facts which the JSC had to consider together with Jafta AJ’s evidence, to determine whether Hlophe JP attempted to influence them. Once it had been determined that he did attempt to influence them the JSC had to decide whether his attempt to do so constituted gross misconduct of such a nature that it may justify his removal from office.

The problem for the JSC was that in the absence of cross-examination of the witnesses, its finding and reasons for the finding just do not add up. As the SCA points out, the JSC applied the criminal standard applicable at the end of a criminal trial, namely proof beyond reasonable doubt, to dismiss the complaint, at a stage when neither of the conflicting versions of the two judges on the one hand and Hlophe JP on the other hand had been tested by cross-examination.

Although the finding that it could not reject Hlophe JP’s version was quite correct, this did not mean that no-cross-examination was required:

By disallowing cross-examination that result was made inevitable. It would have been highly irregular to reject his evidence without having given him an opportunity to cross-examine his accusers. Utilising this procedure for the final resolution of a complaint of misconduct by a judge will always lead to a dismissal of the dispute where the conduct alleged by the accuser is disputed by the judge because the judge’s version can never be rejected without having given him an opportunity to cross-examine his accusers. The procedure adopted was therefore not appropriate for the final determination of the complaint.

The requirement of proof beyond reasonable doubt (the only reasonable inference) was similarly not appropriate. Not even in a criminal trial is proof beyond reasonable doubt required before the trial has run its course and an investigation of a complaint of gross misconduct is not a criminal enquiry but more in the nature of a disciplinary enquiry where proof on a balance of probabilities is required at the conclusion of the enquiry

As many of us pointed out at the time, this reasoning of the JSC did not seem plausible. Courts frequently have to decide where the truth lies between two conflicting versions and they often do so where there is only the word of one witness against another and neither of the witnesses concedes the version of the other. Although a court may, after cross-examination, still be unable to decide where the truth lies, “that possibility does not entitle a court to decide the matter without allowing cross-examination and it does not entitle the JSC to do so”.

The only credible option open to the JSC is to re-open the hearing, to call all the appropriate witnesses and to allow cross-examination of those witnesses — including the judges of the Constitutional Court and the Judge President. This procedure was not followed and this led to the finding that the procedure used was unlawful. If cross-examination had been allowed, it would have put the JSC in a position to decide whether the version by Hlophe JP or the version judges of the Constitutional Court who made the allegations about his alleged attempt to interfere with their work was the correct one. Such a finding would, in effect, require it to decide who had lied in this case.

If the JSC now revisits the matter as required by the SCA and if it makes the appropriate finding about whose version is truthful after cross-examining the witnesses, one would assume that the party or parties who are found to have lied would then be found to have been guilty of gross misconduct, which would trigger a recommendation of impeachment. This process may well be painful for all concerned. But as the SCA pointed out, sweeping the question under the carpet is not in the interest of the judiciary, the administration of justice and ultimately the citizens of South Africa.

The Empire Strikes Back

Feb 3rd, 2011

by Pierre De Vos.

106 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let the conversation begin.

A picture tells a thousand words

Jan 12th, 2011

by Pierre De Vos.

22 comments

The first time I encountered the practice was many years ago when I visited Morocco. Pictures of the country’s supreme leader, the then King of Morocco (who was later succeeded by his son), could be found everywhere: not only in government buildings, but in every tea shop, hotel and carpet sellers stall. It was as if the pictures were placed everywhere to remind everyone that Big Daddy was watching them.

Of course, in apartheid South Africa, pictures of the Prime Minister and the relevant self-important Cabinet colleague (with the obligatory silly Homburg hats), could be found in every government department. And I remember once clearing out the boxes of junk from my father’s house and stumbling on a big black and white framed picture of “Doktor Verwoerd” (alongside a framed picture of the Voortrekker Monument) amongst the discarded ashtrays (in the form of wagon wheels) and plates (commemorating the NG Kerk Warmbad’s 75th anniversary) and old newspapers bringing news that South Africa was leaving the Commonwealth (1960) and that South African boxer Arnold Taylor had become the WBA Bantamweight boxing champion of the world (1973).

(These portraits had been long forgotten, of course, because after 1994 very few white South African ever admit to having supported Verwoerd or having voted for the National Party. Surely none of those ex-Nationalists now serving in the DA and the ANC would want us to remember that they were enthusiastic supporters of apartheid.)

But even in apartheid South Africa, where Afrikaners generally revered the Prime Minister as a demigod sent by Our Father in Heaven Himself to keep the Volk safe from die swart gevaar and the communists, the picture of the Prime Minister could be found only in government buildings (and in private homes, of course). Naively I had thought that our new democratic and revolutionary ANC government would dispense with such idolatry. Who in the ANC, I thought, would want to imitate the apartheid government and treat government Ministers as if they were not the servants of the people but rather Very Important People who had to be feared and obeyed?

Well, I was wrong. After all, we did not have a true revolution in South Africa in 1994. The state remained intact and we had a “transition” in which the National Party handed over the political (but not the economic) power to the majority (who happened to support the ANC), while the state and all its structures (and the bad apartheid era habits of the state apparatus) remained. Today it is unclear whether the ANC transformed the state or whether the deeply embedded state culture managed to curb the more egalitarian habits (or was it mere rhetoric?) of the ANC and whether the culture of the apartheid state did not insinuate itself into the heart of the ANC controlled government.

So, soon after 1994 pictures of Nelson Mandela and his cabinet appeared in government buildings. Because it was Nelson Mandela, it kind of warmed my heart and I did not object. But these days whenever I visit a government department and I see big colour pictures of our President and of the relevant Minister (or in the Western Cape, pictures of Helen Zille) looking sternly down at those who enter, I do not feel at ease. In a democracy, governments (and with it Presidents and Cabinet Ministers) are supposed to come and go, but those pictures seem to suggest otherwise.

I am, of course, too sensitive about this. The existence of those pictures can easily be justified on the basis that the cabinet minister (or the President) is the political head of the Department one is visiting and is hence accountable for what happens there. Having a picture of the President or Cabinet member can therefore be seen as a reminder of the accountability of our government Ministers to the ordinary public. If that Home Affairs official treats you with contempt because you are not rich (or white) it is the relevant Cabinet Minister in that picture who should be held accountable.

That is exactly why it is completely inappropriate that pictures of President Jacob Zuma and Justice Minister Jeff Radebe adorns the foyer of the Western Cape High Court. Our Courts are not part of the government and (unlike officials in the Department of Justice) our judges are not accountable to the President or the Minister of Justice. It is worth quoting extensively from section 165 of our Constitution, which states:

The judicial authority of the Republic is vested in the courts.

The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

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

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.

So, Courts are subject to the Constitution and the law — not to the authority of the Minister of Justice. While the Minister ensure the smooth running of the justice system, individual judges and the judiciary as an institution are not accountable to the Minister, either for individual decisions or for the day to day running of the courts. This is what judicial independence entails.

Those pictures on the walls of the High Court tells a different story though. To the uninitiated litigant or accused entering the Cape High Court, those pictures might very well suggest that the Courts are not truly independent as they are under the authority of the President and the Minister and accountable to them.

Justice must not only be done but must also be seen to be done. And this can only happen when courts are not only independent (as guaranteed in our Constitution) but also seen to be independent by ordinary citizens entering a court building. Where pictures of members of the executive adorns the foyer of a court building, the danger is that some ordinary citizens will begin to believe that the courts are accountable to the executive and that judges will rule in a manner that will please the executive – regardless the facts of the case or the law applicanble to that case.

It was therefore unwise to place these pictures in the foyer of the Western Cape High Court. One can only hope that either the Judge President or the Chief Justice will take immediate steps to rectify this mistake in order to safeguard the image of the judiciary and to ensure that no one would be fooled by these pictures and would begin to believe that our courts are not independent.

This is not a decision that can be left to government officials. The relevant leaders of the judiciary need to take steps to rectify the matter. Hopefully either the Judge President or the Chief Justice will act swiftly and will do the right thing to continue jealously to guard the image of our judiciary.

Should Freedom Under Law appeal the Hlophe judgment?

Dec 23rd, 2010

by Pierre De Vos.

22 comments

A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state, a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

On public opinion and the Constitutional Court

Nov 16th, 2010

by Pierre De Vos.

73 comments

I am in the process of writing a paper on the effect of public opinion on the decisions of South Africa’s Constitutional Court. Two preliminary questions arise. First, to what extent should public opinion inform the decisions of the Constitutional Court? Second, to what extent does public opinion in fact influence the decisions of the Constitutional Court?

Clearly, public opinion cannot be said to determine the outcome of each case that comes before the Constitutional Court. If that had been the case, the Court would never have declared the death penalty unconstitutional. Neither would it have ordered Parliament to extend the same rights and status enjoyed by heterosexual married couples to same-sex couples who wish to formalise their relationships. Neither would the Court have found in favour of the right of prisoners to vote in elections.

However, some observers argue that public opinion does sometimes play — perhaps a difficult to define — role in the decisions of the Court. In S v Jordan the majority of the Court rejected arguments that a law that criminalised sex work but left the clients unpunished, unfairly discriminated against women — despite the fact that the vast majority of sex workers are female and the vast majority of the clients of sex workers are male. Did the opposition to sex work by the vast majority of South Africans not perhaps play a role in this decision?

And what about poor Mr Prince, whose right to freedom of religion (and hence his right to smoke dagga in conformity with the tenets of his Rastafarian religion) was not vindicated by the Court despite the fact that he forms part of a vulnerable and despised minority group?

In S v Makwanyane, the first case ever heard by the Constitutional Court, all eleven judges found that the death penalty was unconstitutional. One of the arguments placed before the Court to try and justify the imposition of the death penalty was that the vast majority of South Africans supported the death penalty and that this fact had to be given due consideration by the Court when deciding on such an important issue of public policy. Justice Arthur Chaskalson rejected this argument contending as follows:

The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence. Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

This is a difficult question to get one’s head around. As Justice Chaskalson pointed out, the Court has a duty to protect the “worst and the weakest amongst us”. If it merely followed the majority opinion on every issue, there would not really be any significant role for the Constitutional Court in enforcing the provisions of the Bill of Rights and the Constitution would become pretty meaningless. Public opinion therefore does not and should not dictate individual decisions of the Constitutional Court.

But the Court does not operate in a political vacuum and it is reliant on the support of others to ensure its long term institutional survival. It does not have an army or police force at its disposal and cannot raise taxes and hence its position can seem pretty tenuous. If it does not have external support from powerful forces in society, it may find it difficult to make its decisions “stick” or even to survive in tact as a relatively principles institution that protects those who cannot rely on the political process for protection.

Perhaps one way to understand the field in which the Constitutional Court operates, is to distinguish between different kinds of opinion blocks and to argue that the Court requires support from at least some of these blocks to safeguard its institutional independence and survival. While public opinion is not crucial, the opinion of all power blocks in society does and should play a role in the way in which the Court operates.

In a one party-dominant democracy like South Africa, one such block would be the political elites aligned to the governing party. Perhaps the unpopular death penalty and same-sex marriage decisions could be at least partly explained by the fact that the ANC and its allies supported these decisions — even though the vast majority of South Africans opposed it.

This does not mean that the Constitutional Court cannot make decisions that are not supported by the ANC. After all, the ANC does not operate in a political vacuum either. The ANC derives its legitimacy and its ability to govern the country with some authority not only from the fact that the majority of voters support it during elections. It also relies on the support (or at least acquiescence) of big business, an independent and free media, civil society, lawyers and other judges and the international community.

It is therefore in the interest of the ANC to accept decisions of the Constitutional Court when such decisions are supported by some of these groups or where these groups support the Constitutional Court as an institution and would defend its right to make decisions based on its interpretation of the Constitution. As long as these powerful blocks support the Constitutional Court as an institution, it is in the ANC’s own interest to respect the decisions of the Court – even when it does not support a specific decision of the Court. Unless the ANC is prepared to destroy its own legitimacy as a political party or unless it is prepared to sabotage the country for short term political gain (as happened in Zimbabwe) it has no other choice but to accept decisions of the Court that it does not agree with.

But this would only hold true if the Court has sufficient support from either the voters or from other important power blocks. Surveys show that the Constitutional Court does not enjoy unqualified support from the majority of South Africans. Its institutional strength comes in part from support by civil society and other powerful blocks in our society. If it consistently handed down decisions that were legally implausible, displayed a naked political agenda and appeared unprincipled, the Court might lose support of many of these actors.

The Court may also strengthen its position by become more activist and by becoming a more adventurous pro-poor institution. The Supreme Court of India is often said to have gained much institutional legitimacy because of its interventions on behalf of the poor. It has taken on the state and governing parties and other powerful role players to help vindicate the rights of poor and destitute communities and has gained much popularity in the process. It would now be difficult if not impossible for the governing party to curtail the powers of the Indian Supreme Court.

If I am correct, it would be important for the Court consistently to hand down well-reasoned decisions that are legally plausible and progressive. It would also be important for the Court to avoid creating the impression that the Court has been captured by the governing party or by other powerful dominant forces in society (like big business or other elite interests).

Even if a specific decision might not be supported by the majority of voters or by the ANC elite, it might actually help to strengthen the institutional position of the Court as it might help to garner support from civil society, the trade union movement, the legal profession, big business or the population at large who might begin to see the Court as an independent and reliable institution who can deal honourably with complex and controversial issues outside the party political arena.

I suspect that judges will deny that they ever think about these issues. And it is far from clear that legal academic Theunis Roux is correct when he seemingly argues that Constitutional Court judges consciously veer between principle and pragmatism in order to secure the court’s institutional legitimacy. Yet, the jurisprudence of the Court suggests that the judges do struggle with finding a balance between respecting the power of the democratic branches of government while handing down principled and legally plausible judgments. Acutely aware that it is unelected, it does not want to become a co-governing branch of government. At the same time it understands that it has a duty to interpret and enforce the Constitution and that this might sometimes tread on the toes of the other branches of government.

What is a court to do? Handing down well-reasoned, credible and principled judgments that display some understanding of the history of our country and of the present social and economic context in which the Court operates, and shows sufficient concern for the plight of the poor, the marginalised and the destitute would probably be a good bet. Consistently handing down unprincipled judgment that will not be legally credible and will alienate it from civil society, lawyers, judges, the independent media and the majority of ordinary citizens in an effort to placate the ANC will probably be counter productive for the Court in the long run.

But maybe I am wrong. These are just preliminary thoughts and I would be interested to hear what the thoughtful contributors to this Blog have to say on the matter.

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On public opinion and the Constitutional Court

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