Constitutional Court’s conservative slip showing?

The majority judgment in the male rape case handed down yesterday, reveals a different kind of Constitutional Court, a Court that is both institutionally and socially more conservative than previously thought. It also reveals a court not familiar with its own jurisprudence or at least not respectful of that jurisprudence.

The majority judgment stated that a distinction should be drawn between the Court’s power to declare invalid legislation, and the Court’s power to develop the common law. The former is a power to check the exercise of power by the legislature to ensure that legislation conformed to the Constitution. The latter power, according to the Court, has always vested in the Court and is exercised incrementally as the facts of each case requires.

This move is rather surprising, given the fact that almost ten years ago the Constitutional Court declared invalid the common law crime of male on male sodomy. There was no talk of the incremental development of the common law in the sodomy case because the Court endorsed the view that if the common law contravenes the provisions of the Bill of Rights – as the definition of rape certainly does – then it has a duty to declare that provision invalid.

Now the Court seems to say that the common law will not ever be declared invalid – that move is reserved for legislation – and will only be changed if the specific facts before the Court requires it. The majority also seems to say to conservative lawyers: don’t worry, this is not threatening because courts have always done this kind of incremental development of the common law. But this message seems to disregard the fact that we now have a Constitution that requires development of the common law and that it is not and cannot be business as usual. The Court’s power has been extended and it has an ethical and legal responsibility to use that power to enforce the Constitution.

This judgment represents a deeply conservative move by the Court. First, it suggests that in certain circumstances the Court will be reluctant to upset the common law status quo too much and that it therefore does not really believe all that talk about a transformative Constitution. The problem with a transformative Constitution is, of course, that it actually requires the common law to change fundamentally and this Court seems scared to go down that road. Legal certainty über alles!

Second, it seems to suggest that when the common law breaches the Constitution by, for example, discriminating against a group and demeaning them and affronting their human dignity, the Court will not help the class of people who are so demeaned and affronted, unless they from part of the very narrowly defined interest group before them. The bigger class of people in the same predicament will have to suffer until the day when someone can scrape together the money and lawyers to bring a case to Constitution Hill.

As Justice Langa argues indirectly in a footnote in his minority decision, this line of reasoning would have led the court in the same-sex marriage case to have declared the common law definition of marriage unconstitutional only to the extent that it did not allow two women to get married – because two women (and not two men) brought the case before the Court.

As I said below, this seems deeply irresponsible and disrespectful of the rights of people who do not always have the power and finances to take their case to the Constitutional Court. It suggests that there might be another reason for the decision, namely an unease on the part of the majority of judges with radical legal change and an unease, further, with recognising that rape is not only a women’s issue. Is this perhaps a conservative kind of formalism/feminism at work?

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