Coligny bail (and cabinet reshuffle) judgments show need for reasoned criticism

There is nothing wrong with criticising the reasoning employed by a judge or magistrate in coming to a specific decision. Neither is there anything wrong in arguing that the specific outcome was unjust. But when individuals level wild and unsubstantiated allegations against a judge or a magistrate or when they criticise a judgment without having read it, without any knowledge of the law or without any regard to the reasoning employed by the presiding officer, they undermine the independence of the judiciary.

Judges or magistrates are not infallible. Neither is the law always settled and clear. Different judges – applying the same texts and legal precedent – might interpret the law differently. If the law was perfectly predictable, no one would ever go to court – we would just be able to look at the law and ask any official to apply it mechanically.

For example, a different presiding officer might well have refused to grant bail to the two men accused of murdering a teenage boy in Coligny. As I have no access to the reasons provided by the presiding officer in the Coligny case, it is difficult to say why the magistrate granted bail. Given the racial and class dynamics in small town South Africa, I have my suspicions, but unfortunately magistrate court decisions are not reported so it is difficult to test my suspicions properly.

What I do know is that section 60(4) of the Criminal Procedure Act contains provisions which would easily have allowed the magistrate to deny bail to the two accused. This section states, in part, that the interests of justice do not permit a presiding officer to release a suspect on bail where it is established that:

in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

It might be that if furnished with the full reasons for the decision, my suspicions that the decision to grant bail was clearly wrongheaded, would be allayed. Or after studying such reasons my suspicions might be confirmed. There would be nothing wrong with me engaging with the reasons of the magistrate and arguing that he got it terribly wrong in this case.

The same logic applies to criticising the decision by Vally J in Democratic Alliance v President of the Republic of S A; In re: Democratic Alliance v President of the Republic of S A and Others. This is the decision in which the North Gauteng High Court ordered President Jacob Zuma to provide the record of all documents and electronic records (including correspondence, contracts, memoranda, advices, recommendations, evaluations and reports) that relate to the making of the decisions to fire Pravin Gordhan as minister of Finance as well as the reasons for the decision.

As is the case with any other judgment, it would be possible to argue that the decision was wrong.

One could do so on non-legal grounds, arguing, for example, on political grounds that the settled constitutional principle that the exercise of all public power is subject to the constitution and can be reviewed for rationality, is wrongheaded.

One could, for example, argue that in order to govern the country effectively Presidents should not have to justify decisions they make to the public because too much democracy was a dangerous thing. One could also argue that Presidents should not have to worry that any decisions they take would be reviewed and set aside by a court of law.

Following this line of reasoning, one would be able to argue that it would be much better to live in a country where some decisions of the President are not subject to the discipline of the Constitution. In other words, one would be able to argue that it would be good thing for some of the President’s decisions to be above the law, regardless of whether the decisions were taken in bad faith or for a corrupt purpose. I would not make such an argument, but I assume some within the patronage faction of the ruling party would be able to do so with a straight face.

One could also argue – on legal grounds – that the existing precedent from the Supreme Court of Appeal (SCA), which judge Vally was required to follow and thus necessitated the decision he took (and which he cited in his judgment), were wrong and should be overturned by the Constitutional Court.

This argument would have to show why the SCA was wrong when it held in 2012 in Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others (in the so-called “Spy Tapes” judgment) as follows:

In the constitutional era courts are clearly empowered beyond the confines of PAJA [Administrative Law review] to scrutinise the exercise of public power for compliance with constitutional prescripts. That much is clear from the Constitutional Court judgments set out above. It can hardly be argued that, in an era of greater transparency, accountability and access to information, a record of decision related to the exercise of public power that can be reviewed should not be made available, whether in terms of Rule 53 or by courts exercising their inherent power to regulate their own process. Without the record a court cannot perform its constitutionally entrenched review function, with the result that a litigant’s right in terms of s 34 of the Constitution to have a justiciable dispute decided in a fair public hearing before a court with all the issues being ventilated, would be infringed.

The argument would also have to show that Maya DP (the Deputy-President of the SCA) was wrong when she held earlier this year in Helen Suzman Foundation v Judicial Service Commission (a judgment also cited by Vally J in his judgment in the present case) that:

By facilitating access to the record of the proceedings under review, the rule [rule 53] enables the courts to perform their inherent review function to scrutinise the exercise of public power for compliance with constitutional prescripts. This, in turn, gives effect to a litigant’s right in terms of s 34 of the Constitution – to have a justiciable dispute decided in a fair public hearing before a court with all the issues being properly ventilated. Needless to say, it is unnecessary to furnish the whole record irrespective of whether or not it is relevant to the review. It is those portions of a record relevant to the decision in issue that should be made available. A key enquiry in determining whether the recording should be furnished is therefore its relevance to the decision sought to be reviewed.

One would also have to show why the Constitutional Court was wrong when it held in 2014 in Turnbull-Jackson v Hibiscus Coast Municipality that:

Undeniably, a rule 53 record is an invaluable tool in the review process. It may help: shed light on what happened and why; give the lie to unfounded ex post facto (after the fact) justification of the decision under review; in the substantiation of as yet not fully substantiated grounds of review; in giving support to the decision­ maker’s stance; and in the performance of the reviewing court’s function.

Furthermore, one would have to show why President Jacob Zuma was wrong when he acknowledged in papers submitted to the Constitutional Court in a different matter that any exercise of power by him (including the appointment and firing of cabinet ministers) has to meet the test of rationality. In an affidavit deposed to by the President in that matter before the Constitutional Court (also cited by judge Vally) President Zuma states:

It stands therefore to reason that the Constitutional power to appoint and dismiss Ministers is that of the President, which power he or she exercises as head of the Cabinet. I am advised in this regard there are no constitutional constraints on the President on how that power is to be exercised or the process by which the power is to be exercised, as long as the exercise of such power is rational.

What no reasonably informed person with a modicum of integrity would be able to claim was that the way judge Valley dealt with the matter showed prima facie evidence of the corruption in the justice system.

The judgment by Vally J amply demonstrates (and anyone who has taken the time to read the judgment handed down earlier this week would know this) that he was merely following the binding precedent of higher courts when he ordered President Zuma to provide the record of all documents and electronic records (including correspondence, contracts, memoranda, advices, recommendations, evaluations and reports) that relate to the making of the decisions to fire Pravin Gordhan as minister of Finance as well as the reasons for the decision.

To argue that the judgment showed prima facie evidence of the corruption in the justice system is therefore at best entirely ignorant of the law and at worst deliberately dishonest. I leave it to readers to decide which.

It is important that South Africans of all stripes and political persuasions (not only lawyers or legal academics) engage vigorously and critically with court judgments. Informed and reasoned criticism of court judgments by lawyers and other citizens is one way in which judges and magistrates are held accountable. (Another is the appeals process, which allows higher courts to hold lower courts accountable for their decisions.)

But it is rather unhelpful when the criticism is not based on any reasoned argument or any analysis of the law and are purely made to advance the naked factional or economic interests of some.

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