Further reflections on academic criticism of courts

Adv. Jeremy Gaunlett’s criticism of legal academics and of the Constitutional Court has elicited much discussion and debate. As I said before, such debates should be welcomed. In South Africa people in positions of influence and power (even academics with very limited influence and rather limited — or no — power) tend to be far too precious about criticism levelled against them.

It is not often that a lowly academic like myself get the opportunity to engage with the “ideas” of a person who is often said to be one of the most eminent and accomplished lawyers in South Africa. In my previous post, which was jotted down between sessions of a symposium which I was attending in Durban, I only touched on some of the problems with Gauntlett’s speech. I thought it might therefore be appropriate to re-read his speech and to engage more fully with it.

What forcefully struck me on a second reading of Gauntlet’s speech, is the rather cavalier manner in which the talk engages with the purported facts on which some of his criticism is based. One would have thought that a highly regarded advocate would get his facts straight and would not make misrepresentations on which he then based some of his criticism. Such tardiness suggests — rather ironically — that when Gauntlett stated that “it is time to end an approach which is insufficiently rigorous”, he was referring just as much to his own speech delivered to law teachers, than to the output of judges and legal academics.

Let me explain.

Gauntlett suggests that, apart from three academics he names, there has been no “probing critique” in the last five years of the work of the Constitutional Court. This is of course an absurd claim. Anyone who reads the various law journals will be familiar with the work of many academics who regularly criticise the judgments of the Constitutional Court on a wide variety of issues.

Admittedly, some of this academic work have a theoretical dimension and might be difficult to follow or to understand if one is not well read in legal theory or the social sciences. Some of it can also seem a bit abstract and can be pretty difficult to digest on a first reading. But this does not mean that the Constitutional Court is not regularly criticised — sometimes in rather intemperate language.

The highly critical articles about the Court’s sometimes shockingly inappropriate judgments dealing with gender issues comes to mind (I have counted 15 articles highly critical of the Volks v Robinson judgment, for example.) The large body of work — including book length manuscripts — which have criticised the Constitutional Court’s timid approach to social and economic rights could not have slipped anyone’s notice who have actually regularly read only one or two of the more prominent law journals. In the labour law field there has been serious criticism by several academics of the Constitutional Court’s eccentric reasoning in a line of cases dealing with jurisdictional issues.

This statement of Gauntlett therefore seems utterly bizarre and completely unrelated to reality — unless one assumes that what he meant was that academics did not criticise the Constitutional Court judgments in the way that he agreed with and in the ideological register with which he agreed. (This is a common problem among some  highly acclaimed practising lawyers who are perhaps a bit more enamoured by their own voices than is healthy and hence talk too much and read too  little in the field which they profess to be experts in.)

A second example of Gauntlett’s rather adventurous engagement with the truth can be found in the following passage:

the contrast for example between the House of Lords where the 12 Lords of Appeal in Ordinary on the last figures I saw 7 had on average 14 years of judicial experience before being appointed to that court; in Canada, 12 years; while in South Africa, fully six of the 11 members of the Constitutional Court had no judicial experience before joining the court with the remaining five averaging four years judicial experience each. Can it be said that certain of last year’s appointments reflect a continuing disregard for discernible judicial excellence?

This statement is, to put it kindly, grossly inaccurate. If he is referring to judges appointed in 1994, he should surely know that Ackermann (10 years service), Goldstone (11 years service), Madala (2 years service), Mahomed (2 years service), Didcott (17 years service) and Kriegler (9 years service) had an average of 8.5 years experience as judges before joining that court. They joined Chaskalson, Langa, Mokgoro, O’Regan en Sachs, who had not served as judges before their appointment to the Constitutional Court.

But maybe he was referring to recent appointments. If he is referring to recent appointments, Gauntlett is shockingly ill-informed. Cameron, Froneman, Jafta, Khampepe and Mogoeng respectively had 15, 17, 8, 8 and 8 years judicial experience before joining the Constitutional Court. This is an average of about 10 years experience each. In other words, the learned advocate has based some of his argument on false statistics.

Gauntlett also complains about the output of the Constitutional Court. He points out that in 2008, the Constitutional Court heard only 22 cases while the Supreme Court of Canada heard 82, the House of Lords 102 appeals in 2005 and 94 in 2006.

Well, this is a curious criticism. It can only serve as valid criticism if one assumes that the Constitutional Court judges should and could have heard more cases but did not do so because they were too lazy or slothful to hear as many cases as the their counterparts in Canada or the venerable House of Lords in the “mother country”. This could be a potent criticism of our Constitutional Court, but then one would have to ask how many applications for leave to appeal were heard by it and one would have to assess whether any of these applications for leave to appeal were turned down despite having a reasonable prospect of being successful.

In fact last year the Constitutional Court dealt with almost 120 applications for leave to appeal and eventually heard 30 of those appeals because it found that it was in the interest of justice to do so and — rather importantly — there was at least some prospect that the appeal would be successful. In the absence of an analysis of whether any of the cases not heard had any prospect of being successful, the criticism by Gauntlett makes no sense. At best it is lazy. At worst it may be dishonest.

Goodness, it is important to subject the work of all judges to serious and sustained criticism. This criticism may be of a technical nature (the kind of criticism that one can find in every edition of almost every law journal published in South Africa). The criticism may also be more relevant for the health and well-being of our constitutional democracy by focusing on the effects of individual judgments on the lives of ordinary people.

My view is that we have far too much of the former kind of criticism and not enough of the latter. Lawyers and legal academics steeped in formalistic legal discourse, often deal with the law as if ordinary people are not affected by the judgments of our Courts and as if doctrinal purity is far more important than “irrelevant” questions such as whether a judgment would cause ordinary people to lose their access to housing, would make it impossible for them to feed themselves and their children, or would allow the state or others to deny them their dignity.

(Of course, when the Court displays a concern for ordinary people, some academics held up by Guantlett as examples of what ideal academics should be doing, criticise the court for its “atavistic sentimentality” or – shock! horror! – “outcome-based” approach.)

Apart from an accurate engagement with the facts, what Gauntlett’s speech lack is any hint that these debates really affect human beings (as opposed to an acute awareness that it affects lawyers who earn a few million Rand a year).

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