Constitutional Hill

Supreme Court of Appeal

Full High Court bench of FIVE judges?

Aug 19th, 2008
by Pierre De Vos.
36 comments

This post is for the legal nerds out there who might be amused or amazed by the idea of five High Court judges sitting on the bench at the same time.

I hear that the High Court started hearing the application by Judge President John Hlophe against the Judicial Services Commission (JSC) and the Constitutional Court today with a full bench of FIVE judges. The five judges presiding over the hearing are Deputy Judge President Phineas Mojapelo, Judge Antonie Gildenhuys, Judge Seun Moshidi, Judge Rami Mathopo and Judge Dirk Marais.

This seems like a very surprising and unprecedented move and demonstrates the complex situation in which the High Court finds itself. Usually a full bench of the High Court consists of three judges while a full bench of the Supreme Court of Appeal consists of five judges.

The Constitution does state in section 173 that High Courts have the inherent power to protect and regulate their own process, but the Supreme Court Act states that a full bench of the High Court consists of three judges.

But section 13(1)(a) of the Supreme Court Act does provide for the hearing of a case not by a full bench but by a “full court” consisting of so many judges as the Judge President or his or her second in command may determine. This section states:

Save as provided in this Act or any other law, the court of a provincial or local division shall, when sitting as a court of first instance for the hearing of any civil matter, be constituted before a single judge of the division concerned: Provided that the judge president or, in the absence of both the judge president and the deputy judge president, the senior available judge of any division may at any time direct that any matter be heard by a full court consisting of so many judges as he may determine.

Deputy Judge President Mojapelo was therefore legally perfectly entitled to appoint a bench of five judges to hear this very important – even earth shattering – case. In fact, it seems like a rather wise move on his part as it allows a bench of five judges to hear the case and if they agree on the outcome, the decision will have somewhat more legitimacy than it would otherwise have had.

Maybe those practicising lawyers out there could let us know if they have ever encounter a High Court bench made up by five judges. None of my colleagues I have spoken to has.

Even though there are five judges sitting in this case, it does not solve the bigger constitutional problem, namely what happens if one of the parties want to appeal the judgment. It can be appealed to the Supreme Court of Appeal (SCA) but it cannot be appealed to the Constitutional Court as the CC is a party to the case.

I assume this must mean that the SCA will have to be considered the highest court of appeal in this matter. That is, if the High Court decides that they have the jurisdiction to hear the application of Judge President Hlophe at all.

Unprecedented stuff, that is for sure.

Should the SCA and the Constitutional Court be merged?

Jul 22nd, 2008
by Pierre De Vos.
31 comments

Last year I attended a seminar where a judge of the Supreme Court of Appeal (SCA) inadvertently made a strong case for the merger of the SCA and the Constitutional Court. He argued quite forcefully that the courts should not be merged because the SCA deals with all aspects of law – from Company Law to Tax Law to law of Contract – and that the Constitutional Court judges just do not have the expertise about these aspects of the law to do a proper job of dealing with appeals on these matters.

As I sat there listening to the senior SCA judge, I was wondering whether he has ever read sections 8 and 39 of the Constitution. After all, section 8(1) states that the Bill of Rights applies to all law and also binds the judiciary, while section 39(2) states that when interpreting legislation, and when developing the common law or customary law every court must promote the spirit, purport and objects of the Bill of Rights.

This means that the Constitution – and not Voet or Grotius or some other weird Roman Dutch authority – now becomes the source for any development of the law. It is therefore the logic and values of the Bill of Rights – and not the logic and values of the common law – that should guide judges when they interpret or develop the law. If one grasps this, it becomes impossible to argue with a straight face that there is a bright line between “hard law” (tax law, company law, law of contract or delict) on the one hand, and the wishy-washy human rights law on the other.

Maybe some judges of the SCA (and many academics) have not yet internalised this revolutionary development in our law and may thus benefit from the wisdom of colleagues on the Constitutional Court. Sitting in the same-tea room might assist them to come to grips with the new legal order in South Africa in a way that the cold Bloemfontein air does not.

I am therefore ambivalent about the latest ANC proposals for a possible merger of the SCA and the Constitutional Court. Do we really need an SCA when all law and the doing of law are now supposed to be infused with the values of the Constitution? Is it not just an expensive extra forum for appeal for big companies with deep pockets? If we really want to provide more people with access to courts would it not be better to streamline the system and merge the two top courts in the country as the ANC is now proposing?

One argument against such a move would be that the Constitutional Court is the highest court tasked to make final decisions on extremely important issues of great political significance. It is argued that they should therefore be well-resourced and that they should be given the time to carefully consider each case before they deliver a judgment with far-reaching consequences. I agree with this line of thinking (I think!).

Another argument against a merger relates to fears about the ANC’s commitment to judicial independence. Is this proposal not just a way to pack the Constitutional Court with pro-ANC (or even worse pro-Zuma) judges? This, to my mind is not a good argument because the SCA is less transformed than the Constitutional Court and its judges therefore more likely to strike down legislation or government action than the present crop of judges on the Constitutional Court.

But we do have a problem that the ANC proposals seem to want to address, namely that ordinary citizens can hardly access the courts due to the expense. If one wants to defend one’s rights, one will often have to first go to the local High Court, then to the SCA and only then to the Constitutional Court and one will have to employ a lawyer who knows what she is doing. This will cost hundreds of thousands of Rands – which most of us do not have.

I am not sure by merging the two top courts we will solve this problem though as access to courts will remain out of reach for most South Africans: to most it will make no difference whether the legal Bill is R500 000 or R1 million.

One way of helping individuals to vindicate their rights would be through a beefed up, better resourced, Human Rights Commission with a strong legal aid component. This would require an amalgamation of the various human rights bodies like the Youth Commission, Commission for Gender Equality (CGE) and the Commission for the Promotion and Protection of the Rights of Cultural and Linguistic Communities into one super human rights commission.

The chances of this happening is rather slim, not only because of the vested interests of those who staff the useless bodies like the CGC that will resist such a move, but also because of resistance by the government. Which government wants a well-run and well-resourced human rights body taking them to court for breaching the rights of poor citizens? Most governments would be suspicious of such a body and would rather avoid being taken to court all the time for disregarding the rights of its citizens.

No wonder a proposal is made rather to merge the two top courts – its a spectacular move that appears to address the problem without actually addressing it. A perfect, cynical political move worthy of Sir Humphreys in Yes Prime Minister.

Racial tension at the SCA?

Mar 25th, 2008
by Pierre De Vos.
3 comments

Carmel Ricard reports in The Weekender on a decision of the Supreme Court of Appeal (SCA) to overturn the murder conviction of Jewell Crossberg, a Limpopo farmer who killed a man and then claimed he was shooting at baboons and suggests there are racial tensions to be viewed between the majority of judges and the minority opinion written by a black judge.

This week, however, the appeal court upheld Crossberg’s appeal , finding by a four-to-one majority that he had not deliberately shot to kill Dube or anyone else, but that he had been criminally negligent.

The court said there was a “fundamental misconception” that Crossberg’s defence was that he had mistaken the deceased for a baboon; that was not, in fact, the true nature of what Crossberg had claimed in his defence.

He had said he had fired two shots into the bush to scare off baboons he had seen crossing the road. He also claimed the shots were fired at sunrise, while driving east , and he could not see well.

In addition to clarifying the “baboon” issue, the majority of the court strongly criticised the state’s handling and presentation of the case against Crossberg. However, three decisions were written in connection with the appeal outcome, and they disclose significant tension between members of the bench about the correct approach to the matter and the outcome.

But Justice Danston Mlambo disagreed with this decision and wrote a minority opinion,

Navsa’s decision, supported by three of his four colleagues, was followed by a second judgment, written by Judge Mlambo, which adopted the opposite position. In his dissenting decision Mlambo said his colleagues’ criticisms of the state were misplaced and Crossberg had suffered no substantial prejudice because of the missing statements.

In his view, the farmer did not see a troop of baboons in the vicinity because there were none. Humans could be “effortlessly distinguished” from baboons and it was clear Crossberg had always known he was shooting at people and not animals. He would therefore have dismissed the appeal and upheld the murder finding.

Ricard seems to suggest that because the minority opinion was written by a black judge and because the case was seen as racially charged this suggests that there were racial tension amongst the judges. This may or may not be true but it is difficult to say by just reading the judgments.

It does suggests though that different judges can look at the same evidence and come to a completely different conclusion and that perhaps this process may be influenced by the perspective of the  individual judge. Whether they drive a Porsche say, or not, might thus be relevant….

Serious slap in the face for the SCA

Feb 18th, 2008
by Pierre De Vos.
2 comments

I have been rather critical of the Supreme Court of Appeal (SCA) in the past and have argued that it has not always embraced the values of the Constitution and the changes the advent of the new Constitution requires in our legal culture. But in recent years the SCA has improved and I was therefore surprised by the ANC resolution to downgrade this court.

Here is my take on this matter published in the Mail & Guardian on Friday.

Why are lawyers such reluctant revolutionaries?

Oct 29th, 2007
by Pierre De Vos.
12 comments

I was interviewed on Radio Sonder Grense (RSG) this morning when the interviewer asked me to name the one greatest event or development of the past 13 years from a constitutional law perspective. (Note to readers: this is my Xolela Mangcu moment, trying to show off!).

Surprising myself I said it was the fact that the Constitutional Court had introduced a new positive attitude towards uncertainty into our law. Instead of mindless reliance on precedent, every case is now really decided from scratch. This has the potential to open up the law and allows judges to acknowledge and rectify mistakes.

I am not sure the Constitutional Court judges have shown a particular willingness to acknowledge mistakes – in conferences I have attended some of the judges have been rather defensive about criticism of their judgments. However, I do think the Constitution has introduced a fair amount of uncertainty into our law and I do think it is a great and wonderful thing.

Most lawyers – especially the non-academic, practicing kind – get a bit anxious about the fact that section 39(2) of the Constitution now requires judges when interpreting legislation or developing the common law or customary law to take into account the values enshrined in the Bill of Rights.

In principle this means that every single common law rule can now be subjected to critical scrutiny and can be changed if it is found not to be in line with the values of the Bill of Rights. It also means that judges cannot merely refer to previous precedent but must ask questions about the values underlying a specific common law rule.

This means that it becomes more difficult to uphold the fiction that judges only apply the law and do not make it. It also in theory forces judges and lawyers to confront the fact that legal rules are based on certain values and that those values can be either good or bad.

For example one of the founding principles of the law of contract is that a contract is a document entered into freely by two or more people and that the two parties have equal power in entering into a contract. This is of course a preposterous fiction that benefits the rich and powerful and ignores the vulnerability of the disempowered party.

In the past when judges upheld this principle there was no need for them to acknowledge that freedom of contract is a deeply political concept based on assumptions underpinning the free market and capitalism. Now any judge that takes seriously the injunction of section 39(2) will have to think about his or her own views on the political economy of South Africa.

Given the inclusion of social and economic rights and a substantive notion of equality in the Constitution, such a judge may well conclude that the rabid free market assumptions underlying the principle of freedom of contract is not to be squared with the values of the Constitution. Even if such a judge did not come to this conclusion he or she would have had to admit that the law is not just this neutral, value free set of beautiful principles handed down all the way from Grotius and Voet.

At least it brings a bit more honesty into the judicial process. Of course, exactly because it requires more honesty, many judges have tried to shy away from the implications of section 39(2) and have not fully engaged with the way in which the Bill of Rights demand a rethink of the most basic premises of the common law.

Many academic articles have been written about the way in which some of the judges of the Supreme Court of Appeal have tried to avoid the legal revolution implicit in section 39(2). But perhaps some lawyers have also failed in their task by not bringing innovative and forceful arguments to the courts where it could benefit their clients.

I heard Judge Dennis Davis lament the other day that there must be something terribly wrong with our legal education because even young lawyers have failed to harness the full potential of the Constitution. Perhaps because we still teach the law in compartments and often do not see how the Constitution has replaced Voet and Grotius and the grundnorm of the common law, newly qualified students fail to make full use of the Bill of Rights.

A legal revolution awaits us. Pity most lawyers are such reluctant revolutionaries.

Jacob Zuma’s tax problem….

Sep 14th, 2007
by Pierre De Vos.
1 comment
The Supreme Court of Appeal (SCA) yesterday ruled that the right to use loans interest-free is ‘gross income’ which ‘accrues’ to a taxpayer and that one must therefore pay tax on that benefit. This means, amongst other things, that people who receive bribes and then claim that those bribes were not bribes at all but merely interest free loans from friends, may have a tax evasion problem.

During the trial of Schabir Shaik much was made of the fact that the more than R1 million that Shaik gave to Zuma was a loan which Zuma was intending to pay back. But experts showed that if interest were to have been charged on these loans Zuma would have found it impossible to pay back the money. In any event the Court found that the “loan agreement” presented to it was fake and that the money was indeed given as a bribe.

If Zuma is charged again his legal team will have to think carefully about how they explain the fact that Zuma received this large amount of money from a convicted fraudster and why he has not paid any of it back – with or without interest accruing.

If they claim this was a loan to Zuma and they cannot show that the loan was serviced by the accused or that interest was being charged on the loan, they may convince a court that Mr. Zuma was not guilty of corruption, but they will then face a charge of tax evasion.

But if the money was not an interest bearing loan and it was not a non-interest bearing loan, it must have been a donation. Why would anyone donate more than one million Rand to a friend in a very influential position. Why would such a person accept such a donation? Surely it is difficult not to assume that the “donation” was given and the money taken because the arrangement was mutually beneficial to the two men.

Sisulu lost the plot

Sep 13th, 2007
by Pierre De Vos.
4 comments

I have always liked Housing Minister Lindiwe Sisulu. She seemed intelligent, hard-working and, for a cabinet minister, not without a modicum of wisdom and compassion. Her recent statements on the N2 Gateway fiasco have been so astoundingly stupid and arrogant that I have now changed my mind.

In Parliament on Monday she threatened to remove protesters from Joe Slovo informal settlement from the housing waiting list.

If they choose not to cooperate with government, they will be completely removed from all housing waiting lists.

There are so many things wrong with this statement that it is hard to know where to begin. Section 26 of the Constitution says that everyone in South Africa has a right of access to housing and that the state has a duty to realise this right progressively, given the available resources. Moreover section 33 of the Constitution states that “everyone has the right to administrative action that is lawful, reasonable and procedurally fair”.

This means that neither the Minister nor her officials can legally remove anyone from a housing list that is supposed to give people a shot of accessing housing, without a fair hearing. I can direct the “honourable” Minister to the judgment of the Supreme Court of Appeal in Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others.

When the Eastern Cape government unilaterally cancelled the disability grants of thousands of residence, the SCA in that case slammed the Eastern Cape government and declared their actions illegal. Writing for the Court, Justice Edwin Cameron commented that the province had:

Conducted the case as though it was at war with its own citizens, the more shamefully because those it were combating were the least in its sphere … The applicants formed part of a group of South Africans with the least chance of vindicating their rights through the legal process.

For the Minster to think that she has a right to unilaterally take away the rights of the very citizens who elected her into office is a shameful disgrace. What has happened to that much abused phrase “innocent until proven guilty”. I assume Mr Jacob Zum and his supporters are as we speak preparing statements of outrage about this abuse of power by the Minster.

But the statement of the Minister is shockingly disrespectful of the Constitution in another way. She seems to suggest that individuals will be punished and their rights expunged if they fail to cooperate with the government. But the Constitution guarantees for everyone the right to freedom of expression, freedom of association and freedom of conscience, which means we have a right, yes a right not to agree or cooperate with the government.

The Minister’s statement speaks of an arrogance that has sadly become all too pervasive among government officials. It reflects an attitude that government knows best and that ordinary people should just shut up and follow government orders – no matter how detrimental those orders may be for a particular individual.

The people of Joe Slovo are not stupid. They do not trust the government because the government has already lied to them regarding the first phase of the N2 Gateway Project. People were promised that they will be moved into the new houses, but this did not happen because they could not pay the high rents being charged.

The erstwhile neighbours of those poor unfortunate souls are now being promised that they will be returned to the permanent structures to be erected on the cleared land, but these structures, we know, will be showcase housing for the benefit of Fifa and the tourists driving from the airport, so they will cost a lot of money and will therefore not be affordable to most of the Joe Slovo residence.

The Minister knows this, her officials know this and the protesting residence know this too. No wonder they are protesting and no wonder they do not want to cooperate. Only people without any self respect agree to cooperate with a government hell bent on taking away your rights.

Good news for press freedom

May 31st, 2007
by Pierre De Vos.
1 comment

Some times the good guys do win. The Department of Transport lost their bid in the Pretoria High Court today to gag Beeld newspaper from publishing information obtained from a leaked management report by the Auditor General on a network audit of the old NaTIS system.

The AG report apparently highlights “maladministration and poor governance” that led to security gaps in the new eNaTIS system. The Auditor General report highlighted “weak passwords and password policies” and “access by users to powerful utility files and even blank passwords allowing anyone to access the system”.

Sias Reyneke, SC, on behalf of Beeld, argued that the Department of Transport had known about the security problems since February when the Auditor General’s report highlighted them – and probably longer – but nothing was done to fix them. “The press should not be blamed for blowing the whistle on the maladministration and poor governance,” he said.

In his judgment judge Dion Basson said that the public’s right to know about possible security problems with the new electronic traffic information system (eNaTIS) outweighed confidentiality concerns over the information. He dismissed the arguments of Minister Radebe’s counsel, Pat Ellis, SC, that by publishing the story Beeld would put confidential information on security gaps in the old NaTIS and the new eNaTIS into the public domain, which could then be misused.

This is great news for freedom of the press. There has been a trend for the government and other aggrieved parties to run to the court to try and stop newspapers from exposing corruption and maladministration. Often this is done after the newspaper – like Beeld in this case – did the right thing by first approaching the aggrieved party for comment.

The outcome in this case is not surprising because it seems to be based on the precedent setting judgment of the Supreme Court of Appeal in Midi Television v Director of Public Prosecutions. Justice Nugent, writing for the full bench, emphasized the importance of freedom of expression for our democracy and developed a very strict test to decide when the exercise of press freedom could be restricted to protect another right or interest.

Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In the Beeld case it was clearly far more important for Joe Public to be informed about the disastrous implementation of the eNaTIS than for the Minister to be saved from acute embarrassment.

The Minister should, however, be taken for task for launching the court application in the first place. In a democracy it is our right as citizens to be informed by the media about both the good and the bad things a government does. By trying to stop us from learning the truth about the eNaTIS balls-up, the minister was attempting a cover-up. He should be ashamed.

Newer Posts →