Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
7 October 2009

Constitutional Court tries to fix its own balls-up

It’s not only State Prosecutor Gerrie Nel that makes “mistakes” (otherwise known as a balls-up). Today the Constitutional Court handed down judgment in the case of Gcaba v Minister of Safety and Security, in effect overturning or “clarifying” previous judgments handed down in Fredericks (in 2002) and Chirwa (in 2007) without actually saying so explicitly.

This remarkable judgment, written by Justice Van der Westhuizen for a unanimous court, seems to lay some of the blame for the “confusion” (read “balls-up”) at the door of “courts judges, legal representatives and academics” (the Constitutional Court, of course, being blameless) for creating “complexity and confusion rather than clarity and guidance”. This is a bit cheeky, to say the least, as the Constitutional Court now seems to want to blame others for the balls-up entirely of the Constitutional Court’s own making.

One has to turn to the last page of the judgment to find an implicit (but oblique) acknowledgment that the Court might be overruling itself. There one finds this gem: “To the extent that this judgment may be interpreted to differ from Fredericks or Chirwa, it is the most recent authority” (and now thus binding precedent).

The question in Gcaba was whether a state employee (in this case a station commissioner in Grahamstown) could approach the High Court to review – on administrative law grounds – a decision not to appoint him to an upgraded post. As this was an employment matter – albeit one involving the state – should he not have been forced to approach the Labour Court instead as the Labour Court was specifically created to deal with labour relations issues in terms of the Labour Relations Act?

The problem was that in 2002 the Constitutional Court in Fredericks (in a unanimous judgment) had found that an employee could approach the High Court (instead of the Labour Court) to have a decision about retrenchments reviewed on administrative law grounds as this claim was based on the constitutional right to a just administrative action.  In Chirwa (to simplify matters slightly) the Constitutional Court might or might not have had second thoughts about the wisdom of this approach, but instead of overturning Fredericks explicitly, it did what judges do when they want to change the law without admitting it: they tried to distinguish the facts of the two cases.

This created much confusion. Some lower court judges interpreted Chirwa as having overturned Fredericks while other judges tried to reconcile the two judgments, grappling with the “complexity and confusion” created, not by lower court judges, legal representatives or academics, but by the Constitutional Court itself!

Now finally the Constitutional Court has taken a stab at fixing the mess by finding that ordinarily the actions of an employer in the public sector would not amount to administrative action and would therefore not be reviewable in the High Court. Ordinary public servants, like members of the SAPS, will therefore not be able to have a decision not to appoint or promote them reviewed in the High Court on administrative law grounds. They will  usually have to  approach the Labour Court – unless they want to rely on other legal grounds like those found in contract law or the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

This view, claims the Court, was consistent with the majority judgment in Chirwa “who did not decide this issue, but indicated a leaning in this directions”. Of course this is a bit disingenuous as the majority in Chirwa merely “leaned” in the direction of finding that on the facts of that particular case the conduct of the employer might not have constituted administrative action. Chirwa did not come close to annunciation the general rule which the Court announced today.

The Constitutional Court furthermore claims that its decision today does not contradict its decision in Fredericks which left open the issue  of whether the actions of the state as an employer would constitute administrative action. I am not convinced that this is correct as the Constitutional Court in Fredericks seemed to accept that when the state acts as an employer it would, to some extent at least, be subject to the requirements of administrative law and hence that such actions could be reviewed in the High Court.

Not being a labour lawyer, I might be missing something, but I must confess I find the reasoning of  the Constitutional Court in the decision handed down today rather unconvincing, overtly defensive and a bit weird (although I agree with the new rule announced today). While it claims that the decision is entirely in line with the two previous judgments, it nevertheless (in the passage quoted above) acknowledges that the judgment might be interpreted as overruling its previous judgments.

The Court also launches into a long lecture on the doctrine of precedent, stating that:

[P]recedents must be respected in order to ensure legal certainty and equality before the law.  This is essential for the rule of law.  Law cannot “rule” unless it is reasonably predictable.  A highest court of appeal – and this Court in particular – has to be especially cautious as far as adherence to or deviation from its own previous decisions is concerned.  It is the upper guardian of the letter, spirit and values of the Constitution.  The Constitution is the supreme law and has had a major impact on the entire South African legal order – as it was intended to do.  But it is young; so is the legislation following from it.  As a jurisprudence develops, understanding may increase and interpretations may change.  At the same time though, a single source of consistent, authoritative and binding decisions is essential for the development of a stable constitutional jurisprudence and for the effective protection of fundamental rights.  This Court must not easily and without coherent and compelling reason deviate from its own previous decisions, or be seen to have done so.  One exceptional instance where this principle may be invoked is when this Court’s earlier decisions have given rise to controversy or uncertainty, leading to conflicting decisions in the lower courts.

Why this lecture? If the Court is to be believed, this judgment does not tamper with its precedents: It merely clarifies its previous judgments so that lower court judges, legal practitioners and academics could be prevented from creating further “complexity and confusion rather than clarity and guidance”.

Maybe its because I am an academic, but I suspect the complexity and confusion is the result of a balls-up by the Constitutional Court. Pity it is not brave and confident enough to admit this.

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