Do High Court judges all take the time to read the judgments of the Constitutional Court,? If they do, why do some of them seem so clueless about the jurisprudence of the highest court in the land?
I ask, because today the Constitutional Court handed down judgment in Weare and Another v Ndebele and Others, refusing to confirm an order of the Pietermaritzburg High Court. The High Court had declared invalid a KwaZulu/Natal ordinance which prohibits a juristic person (that is a company or other legal entity) from holding a license to carry on the business of bookmaking. The ordinance states that only natural persons may hold bookmaking licenses in the province.
The Pietermaritzburg High Court held that this constituted an irrational and arbitrary differentiation and thus declared the section unconstitutional for contravening section 9(1) of the Constitution, which provides for equality before the law. It also found that the Ordinance contravened section 9(3) of the Constitution, which prohibits unfair discrimination.
The test for determining whether section 9(1) is violated is extremely difficult to meet because the Constitutional Court did not want litigants with deep pockets to run to the Court to challenge every small or frivolous differentiation made in the law between different classes of people or different institutions. Anyone who has read the Constitutional Court judgments on equality will know that if one wants to win one’s case with an equality argument, one will have to argue that the law differentiates on the basis of race, sex, gender, sexual orientation or a similar ground and thus constitutes unfair discrimination in terms of section 9(3).
In Prinsloo v Van der Linde and Harksen v Lane the Court explained the test for s 9(1) as follows:
A law may differentiate between classes of persons if the differentiation is rationally linked to the achievement of a legitimate government purpose. The question is not whether the government could have achieved its purpose in a manner the court feels is better or more effective or more closely connected to that purpose. The question is whether the means the government chose are rationally connected to the purpose, as opposed to being arbitrary or capricious.
The Premier argued that the regulation of gambling is a legitimate government purpose. It is more expensive and difficult to monitor juristic persons and to hold them accountable, than it is with regard to natural persons. The policy of restricting licences to natural persons is a rational way to ensure that, given these practical realities, gambling activities are properly regulated.
The applicant argued that the Executive had indicated that the Ordinance need to be amended to allow juristic persons also to become book makers and that the Ordinance was therefore irrational. This argument was obviously rejected by the Constitutional Court who pointed out that it would lead to absurd results because:
any piece of “old” legislation would be unconstitutional as soon as reform is proposed. This result is not only absurd, but confuses a better or worse policy with a rational or irrational one, contrary to this Court’s rationality jurisprudence.
The High Court clearly misconstrued the rationality jurisprudence of the Constitutional Court and failed to understand how strict the test is in a section 9(1) case. It clearly decided that the Ordinance was unwise, but that is irrelevant for a section 9(1) inquiry – all that is required is to show that the differentiation is for some legitimate government purpose (in this case to regulate bookmaking) and that there is some rational connection between this purpose and ordinance.
The Constitutional Court also rejected the finding by High Court that the differentiation unfairly discriminated against the applicant, completely misunderstanding the section 9(3) jurisprudence of the Constitutional Court which is based on the value of human dignity. As the Court has stated on many occasions to show that a legislative provision is unfairly discriminatory, it would need to be shown that the kind of differentiation it embodies is based on attributes or characteristics that have the potential to impair the fundamental dignity of persons as human beings or to affect them in a comparably serious fashion.
But the High Court never found that the Ordinance had this kind of effect. From the High Court judgment it is clear that it had no clue about the true meaning of the Constitutional Court’s jurisprudence on section 9(3). If a student had made such basic mistakes as the High Court did in the court a quo, I probably would not have given that studnet a pass mark.
This is worrying as it suggests that the judiciary is not completely transformed yet and that many judges are in dire need of some judicial education on the values and principles embodied by the Constitution. We are now almost fifteen years into our constitutional democracy so one would expect judges sitting on the High Court Bench to have read and internalised the basic tenets of the Constitutional Court judrisprudence on the Bill of Rights – especially on such a pivotal topic as the right to equality.
The fact that a High Court judge had failed so dismally to grasp the nettle of what is not a particularly difficult concept makes one worry about the kind of jurisprudence committed in courts all over South Africa. How can ordinary citizens have trust in the judicial system if important players in that system have not been able to grasp the most basic principles of Constitutional Law?
Pierre, your analysis of the Weare decision is, as usual, cogent and incisive. But you undermine that somewhat by claiming that it demonstrates that the “judiciary is not completely transformed.
Yes, the Court a quo may well be said to have misunderstood the equality jurisprudence of the CC — by interpreting the Equality Clause too broadly, and failing to grasp both the internal and s. 36 limitations of s. 9. But to say that this demonstrates a default in “transformation” really takes the analysis no further. The term rather clouds the issue by clothing it in a wooly concept that, at the end of the day, can be invoked to criticise virtually any public law decision with which one disagrees.
Why, at all, does the question of transformation of the judiciary feature here? If the judge made a botch-up, criticise (crucify) him/her for that, but I don’t think it is at all necessary to bring the transformation thing into play. I agree with Michael on this one. However, the criticism of the a quo judgment in the light of ‘normal’ (to be expected in the High Court today) constitutional analysis is, as always, spot-on. But then, again, Prof de Vos, you are known to “gooi a klip in die bos”, and, “as iemand tjank, is hy waarskynlik raakgegooi”. So I would restrict my comments here.
Michael, we have a long standing disagreement about the use of the word “transformation”, but on reflection you might have a point in this case. The High Court judgment is probably less about the lack of transformation on the bench and more about a lack of judicial training and the lack of understanding of the Constitutional Court’s approach to equality. I think many lawyers and judges not familiar with the way the CC views the Constitution, fail to understand that constitutional interpretation is just as much about the broader approach to a specific provision in the Bill of Rights (what I jokingly call the “vibe” of the Constitution) as it is about the legal/technical terms used by the CC. That is why they so often get it wrong.
Some interesting observations from James Myburgh on Politicsweb this morning.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=110159&sn=Detail
It touches on the worrying effects of a deterioration of the judiciary.
Transformation of the judiciary does not just include personnel representivity, it includes a transformation of attitude, mind set and a move toward a constitutional dispensation.
A finding like this and others we have seen indicates that this constitutional mind set is not entrenched. Therefore it appears to me that the judiciary has some time to go before transformation is accomplished.
The cocept of transformation is wide and malleable thus incapable of agreed monolitihc interpretation. It envolves fundamental change, including jurisprudential ferment which eclipses our contemporary constitutional law. In this area, many legal practitioners and and judges are wanting.
There is a great need for education. I will advise Zuma to ponder free and compulsory education for judges on Constitutional jurisprudence.
It may simple for De Vos because he is interested in this field, but we must appreciate that he too is not a master of all legal fields. He magnanimously proffesed weakness of law of intellectual property, not intellectuality, I suggest.
Justified differentiation of of course accepted in our constitutional law
Ishmael Malale – This part of your comment sounds contradictory: “free and compulsory education”. Perhaps you meant to say “compulsory education for judges on Constitutional jurisprudence, which will be supllied free of charge [gratis]“? Nevertheless, as we have experienced when the whole Judicial Education Act (as envisaged in terms of s 180(a) of the Constitution) has been debated before having been signed into law, most High Court (and higher) judges, unlike magistrates, think they know everything and they personally detest having to be trained or subjected to further training and education – they usually ask the question: “Who is going to train ME?” So, even peer training is being detested by judges. Therefore your suggestion, which I agree will have a wholesome effect, might well fall on deaf ears as far as judges are concerned.
Sandra – I do not have any problem (in fact I agree) with your view that the word “transformation” (especially when used in connection with jurisprudence) is not only about transformation of the race and gender composition of the Bench, but that it also means a transformational paradigm-shift that is required among judges, from pre-constitutional values to post-constitutional values. But then, the appropriate terminology would probably not be to speak about “transformation of the judiciary” (which implies race and gender transformation in terms of the constitutional imperative in s 174(2) of the Constitution), but rather “transformation of the mindset of the judiciary”, which is why I also disagree with your comment to a certain extent. That is also not how Prof de Vos made it sound and appear here, which is why Michael and I have been differing from him on this aspect. Most probably it is because the judge a quo was one Rall AJ that Prof de Vos has criticised the a quo judgment as being the result of a lack of “transformation of the judiciary”, and not only as being the result of, as he conceded later on: “The High Court judgment is probably less about the lack of transformation on the bench and more about a lack of judicial training and the lack of understanding of the Constitutional Court’s approach to equality.” Having said that, I must agree with you (and Ishmael Malale above) that something must be done as far as the appointment and training of judges are concerned to let them all experience and evidence a paradigm-shift in their handling of cases. It is here, for example, that the Hlophe JP judgment on eviction of squatters / informal settlement dwellers on the Cape Flats can be criticized on the same basis as the judgment that Prof de Vos referred to here.
I’m rather confused as to the bluster caused by this Judgement. The Constitutional Court has the final say in order that lower courts do not get too enthusiastic in their striking down powers and some sense of order is achieved by one central body making the actual unConstitutionality ruling.
I’d far rather have a plethora of claims that laws are offending against Equality than none at all! Have our Equality Court cases hit double figures yet? That’s where my fear lies in a country with such inequality.
I read the judgment and I must say that from an economic interest point of view, the decision of the Constitutional Court is in fact entrenching archaic differentiations which do not make sense in a free enterprise world.
The judgment in effect means that a company which is say as big as a JSE top 20 company operating bookmaking businesses around the other provinces would be prohibited from doing so in KZN!
What is the socio-economic impact of restricting such a potential large-employer business to a sole trader?
I hear your equality argument Prof, but the decision, unanimous as it is, is nothing to aploud.
A thorough expose Prof., I note valid points on transformation by Sandra and Ishmael and agree that compulsory education on constitutional intepretations is need to be provided freely as Mouse has sought to clarify.
Prof., I again agree with Mouse that may be you were just supposed to criticise the intepretation of the individual Judge concerned without generally bemoaning lack of transformation in the bench.
I am, however, inclined to agree with you, Prof., when you talk about transformation as it relates to the Judge concerned, and given what Ishmael described as malleability of the concept, especially when regard is to be had to the fact that the same Judge might be an aspirant constitutional Court Judge. We have recently noted how much importance is ascribed to transformation when the Judges are interviewed for a position in the CC, and for this reason I agree with the PRof. on the importance of transformation.
Mdu – I have always agreed that transformation of the bench is an important issue. But that should not form the basis of criticizing any judgment as that might come over as racist and sexist (vide my comments on the other posts below concerning Carol Lewis’ remarks on transformation recently).
Samaita – Now having read the judgment myself, I also tend to agree with your take on the CC having endorsed archaic principles in refusing to uphold the a quo judgment, even though the court a quo might have been misinformed on constitutional values.
It is the fact that the judge may have been misinformed on constitutional values and the application of constitutional law that is at issue here surely?
Anonymouse – you articulated it quite clearly ” from pre-constitutional values to post-constitutional values.”
I dont know the judge concerned or his history, but it seems to me that we are seeing a trend, a distinct lack of constitutional law knowlege/application from our judges which is not acceptable. This is because of a lack of transformation in the sense I discussed above.
I must confess I did not read the Prof’s meaning as you did Anonymouse, perhaps I was wrong, but I am always shocked at how often things like this are reduced to a racial component level, quite honestly I had hoped we could try to move beyond that.
Samita – I accept your view from an economic point of view, however our judiciary has to draw a fine line between making law and interpreting law.
I am also not entirely sure that I want to see a trend of business using the equality principle so freely. Your thoughts on this issue?
Sandra, I agree that maybe the case made out in court relied on a wrong constitutional ground. The test set certainly made it difficult for the court to confirm the decision. But I am still peturbed that the developing world is actually moving away from such spurious distinctions between a natural person and a company in economic enterprise while the CCT is entrenching it.
It was accepted and in my view on very shallow grounds that the natural person is easier to monitor and control than a company. I actually think that companies by their nature provide many avenues for strict monitoring by regulatory authorities. The real problem is getting the regulators to do their work. Imagine if all bookmakers in SA were natural persons, and whenever the owner died, we had to wind up the estate, deal with family feuds etc. My bet on the result in the match between Bafana and Cameroon would have to wait for the payment to creditors etc!!!
Business continuity is more guaranteed under companies than under sole traders. Access to credit is hampered.
Maybe they had a good argument on irrationality, but again, that famed American Jurist opined that the Constitution does not prohibit the legislature from making stupid laws!
Samaita, and the rest – I am not entirely convinced that the courts are the correct place to lobby for legislation which needs changing! Especially legislation which adversely affects business rather than the individual and on constitutional basis such as equality?
Malale!
It would be prudent for you to employ a simple language when conveying your comments. What is the purpose of you confusing the poor professer and Mdu to an extend that they are unable to respond to your reflections
mel // Nov 20, 2008 at 4:56 pm
Malale!
It would be prudent for you to employ a simple language when conveying your comments. What is the purpose of you confusing the poor professer and Mdu to an extend that they are unable to respond to your reflections
Somewhat presumptuous I would say!
I don’t really know where to fit this in – I know we have debated the competence of judges (and magistrates) and the lack of proper sifting, appointment and training procedures by the Judicial Service Commission and the Magistrates Commission elsewhere – but this is truly ridiculous. http://www.saflii.org/za/cases/ZAGPHC/2008/377.html
Things like this make me sick to my stomach.
Mouse
Shocking and scary. (And I don’t know the half of it!)
The prof’s observations resonate strongly with what I asked
several attorneys, and got a vague denial of — except the
one who pointed out that “law is inherantly conservative”.
NB. I asked: “isn’t it true that most judicial officers have
not yet tuned-into the more EQUITY based view of post ‘94″ ?
But all your disagreements with the prof. mention EQUALITY.
Which leads to the punch-line, which they considered too
improper to answer: “what mechanism to use to safely tell
the judicial officer, ‘look boy, if you are so lazy as to
just take the old-60’s precedents, I’m going to take this
matter higher, where they DO understand considerations
of equity, and not just the 60’s ‘kak en betaal’ simplistic,
literal interpretations.’…?”
Related [IMO]:
Does the concept of force majeur, [I think it's called - act
of God, & beyond our reasonable control] apply, so that,
without being formally recorded, because of the general
incapacity in the nation, and therefore also the Court
systems’ incapacity the statutory time-limits are relaxed ?
Re. equity it’s not ‘fair’ that a party is able to prevail
with unjust actions by manipulating procedural stuff
like time-limits.
It’s well known that Indian cases can go on for
generations, but I doubt that they don’t have statutory
time-limits ?
Re. equity, I observe that the SA ‘natives’ have a
‘better’ sense of natural justice, but they accept
the reality that money trumps justice – in SA.
———
Re equity:
SA follows UK company law, with a big time-lag.
So a company’s internal bussiness is controled by
majority-rule. So, if you, I & my wife save the life
of the wealthy old American, and he, as a reward
gives us [one third each] his Pty before he retires
to US, then your share is worth zero, by the strictly
technical [non equity] old-SA paradigm.
This because my wife & I will will vote ourselves as
directors and extract all profit as directors’ fees.
By contrast, UK had a number of equity-based jugments,
over-ruling [making exceptions to] the Foss v Harbottle
rule, which is the kind of technical [rather than equity]
concept that the 60’s-paradigm-SA-law-people love.
AFAIK, only the 1992 SCA Hullett case finally used the
UK equity precedents. And later cases still unjustly
screwed the minority, because the Judges are looking
for a simple/safe mechanistic paradigm, where they
don’t have to THINK/JUDGE what is fair & equitible,
even when statute allows them to use discretion.
Perhaps it’s part of the view: ‘die wet’ is handed
down from a higher, not to be understood power.
And the “that’s how we do it – understanding why, is
not for me” attitude.
————–
Related [IMO]:
I attended [the only of my life] fixed property execution
sale/auction. After the price was bid up to 3 times
market, and the genuine buyers had left, the sheriff
casually anounced that “there was a mistake and the
sale would be rectified”. So after the other stuff was
sold and most bidders had left. The scammed [IMO]
re-auction took place. I bid up to market. And when
I had a look at the applicable HC rules I couldn’t
see anything ‘illegal’. That the equity consideration
of a genuine free-market auction was to exist, was
[IMO] replaced by the 60’s-SA ‘dit is die wet’ view.
Am I right that the CC hopes that these little unjust
quirks of SA law will be ‘brought in’ for scrutiny and
fixing, hence increasingly cleansing the statute-set ?
An example being the CC:’Prince Albert execution of
RDP houses for near zero prices’, after the ’sommer
maklik’ procedure of moving it along without even the
oversight of a magistrate. CC tightened up the rules.
BTW, this is all irrelevant/academic, since SA too is
transforming: ZA -> Zimbabwe -> Zambia -> Zaire: home!
PS. I seek JHB attorney/counsel who’s familiar with the
principle: “a Pty. [especially small & family held] is
a quasi partnership, and hence fiduciary duty applies
inter se”. SALR of 1992 SCA Hullett… cited
P. Rabinowitz, who I can’t locate.
Perhaps he packed for Perth.
Mouse, that case reminds me of the one where a woman was sentenced to 5 or 6 months imprisonment for being drunk and disorderly. It was her first offence. During another routine check the Dep of Justice official came across the docket. It turned out that the principal witness (a police officer) was the wife of the Magistrate and the main complaint was that the woman had sworn at the police officer. I always wondered what happened to that Magistrate.
Mpho
That is just beyond imagination. And it is the poor who probably suffer the most, in such cases… Actually it’s sickening.
I am not sure if I want to know what happened to the magistrate…
Mpho et Z – Yes I do remember such a thing, in the Eastern Cape somewhere, I think Pickering was the Judge – and the matter was in the end reported as well? I am however not sure what happened to the magistrate during the disciplinary hearing, but the way such things are currently being handled by the Magistrates Commission makes one wonder whether the magistrate got off with anything worse than a rebuke.
Re. http://www.saflii.org/za/cases/ZAGPHC/2008/377.htm
Good show for, AFAIK Anonymouse, posting this link.
Do the pulic know about this ?
Perhaps they should NOT, lest society implode, for lack of
the illusion of law & order ?
——-
With the skills shortage such Court abuses are inevitable.
The Judicial officers must have massive pressure to get output ?
Do Courts acknowledge that eg. summons delivery, which was
designed for the 1st world minority, cannot physically meet the
rules, and accordingly relax their application of the rules ?
Flouting the rules is also unacceptable.
OTOH it’s un-PeeCee to admit that SA can’t comply with
1st world rules.
Perhaps it’s done but not admitted in writing ?
——
Mpho wrote:
> It turned out that the principal witness (a police officer)
> was the wife of the Magistrate and the main complaint was that
> the woman had sworn at the police officer.
Was your knowledge easily available to others ?
—
> I always wondered what happened to that Magistrate.
Are we supposed to know ?
Is it dangerous, if Courts ‘lose respect’, or is transparency
more important ?
With the internet, the reality has now changed forever.
IMO the net exposed prez-TM, and brought down Mugabe.
—–
This is my first post to blogs. I see it removes the blank lines.
Pity that dumb-blogging replaced NewsGroups.
Now the ‘whole book’ is telecommunicated back & forth, instead
of just the last message; which is part of the US ‘infinite
frontier wastefull approach’.