How to give lawyers a bad name

In debates about the appropriate relationship between the various branches of government and in arguments advanced about the need for the courts to respect the separation of powers doctrine (arguments often advanced in support of the unchecked exercise of power by one of the elected branches of government), one important fact is often overlooked: it is not only the judiciary that has a constitutional and legal obligation to respect the authority of the elected branches of government. The elected branches also have a duty to respect and obey the decisions of the courts in order to show appropriate respect for the separation of powers doctrine.

When members of the legislature or executive ignore the decisions of the Constitutional Court or act as if they are not bound by the provisions of the Constitution (often on spurious grounds conjured up by legal advisors with a tenuous grasp of the Constitution), they are failing to fulfil their constitutional obligations and are showing an unfortunate lack of respect for the separation of powers doctrine, the very doctrine which some of the members of the legislature and the executive purport to revere and to hold sacrosanct. Some of the members of these branches (abetted by legal advisors who are paid to know better) believe that Constitutional Court decisions can be trumped by the provisions of ordinary legislation or policy decisions, on the misguided assumptions that they are elected and are thus not bound by the Constitution and the decisions of the Constitutional Court.

The case of Emmanuel Tsebe and Jerry Pitsoe (Phale), two Botswana citizens who entered South Africa illegally, should therefore never have reached the Constitutional Court. The Botswana government wanted the two gentlemen extradited to stand trial for murder. But Botswana still imposes the death penalty in certain cases where somebody is convicted of murder and in terms of the Constitutional Court judgment in Mohamed and Another v President of the RSA and Others (handed down back in 2001) our Constitution prohibits our government from handing over suspects to a foreign country where those suspects face the death penalty unless our government obtains assurances from the foreign country that the execution would not be carried out.

Yet in Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional Development and Another v Tsebe and Others the Constitutional Court was asked to reverse a decision from a full bench of the High Court, who had merely applied the clear precedent set in the Mohamed case. Initially there was a disagreement between the Minister of Justice (who wanted to obey the Constitutional Court judgment in Mohamed) and the Ministry of Home Affairs (who wanted to extradite the two suspects on the basis that it was obliged to do so in terms of the Extradition Act). But mysteriously, the former Ministry changed its mind decided to acquiesce in the decision of the Department of Home Affairs. If it was not for the intervention of NGO’s in the case, the government would have flouted the Constitution and the authority of the Constitutional Court. As the Constitutional Court explained, in a decision authored by acting Justice Ray Zondo:

This Court’s decision in Mohamed means that if any official in the employ of the State, without the requisite assurance, hands over anyone from within South Africa, or under the control of South African officials, to another country to stand trial knowing that such person runs the real risk of a violation of his right to life, right to human dignity and right not to be treated or punished in a cruel, inhuman or degrading way in that country, he or she acts in breach of the duty provided for in section 7(2) of the Constitution.

The lawyers for the two Departments advanced several rather strange and obviously misguided arguments to justify this flouting of the separation of powers doctrine. The most bizarre of these arguments, advanced by Counsel for the Justice Minister, was that when the Justice Minister performs his statutory extradition duties, he performs an act of State. As Justice Zondo remarks rather circumspectly:

This submission seems to suggest that in such a case the Justice Minister is not obliged to respect, protect, promote, or fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution. I am unable to agree with this submission. Section 7(2) is not qualified in any way. Accordingly, the obligations it places upon the State apply to everything that the State does. This Court has already made it clear in Mohamed that there are no exceptions to the right to life, the right to human dignity and the right not to be subjected to treatment or punishment that is cruel, inhuman or degrading. These are the rights that the State must respect, protect, promote and fulfil in a case such as the present one.

What Justice Zondo does not spell out is that this argument is based on the assumption that the Constitution is not always supreme and that a member of the Executive is not bound by either the provisions of the Constitution or the judgments of the Constitutional Court when a Minister performs an “act of State” — whatever that might mean, given the fact that the Constitution does not contain such a phrase. The Constitution does make a distinction between the President acting as Head of State or as Head of the Executive, but in a long line of cases the Constitutional Court has confirmed that the Head of State powers must also be exercised subject to the provisions of the Constitution and that such an exercise can be reviewed and set aside by our courts.

Why any lawyer who are actually getting paid by public funds would nevertheless advance such a contention is not clear. Maybe the lawyers were clutching at straws or maybe they were just not prepared and thought up these kinds of arguments the night before the hearing over a glass or two of whiskey.

Another rather novel argument advanced by lawyers for the Justice Minister was that the decision of the High Court was based upon an “excessive concern about the rights of Mr Tsebe and Mr Phale and a complete disregard for the rights of the rest of the people of South Africa” who are also entitled to the protection of their rights contained in the Bill of Rights and the obligation which the Government has of protecting the rest of the population against people who may have committed violent crimes. They made this argument on the assumption that no assurance would ever be provided by the authorities in Botswana and that the two suspects would have to be released. The implication of the Justice Minister’s suggestion was that, if the Court below had also paid attention to the rights of people other than Mr Tsebe and Mr Phale, it would have concluded that the Government was entitled to extradite or deport Mr Phale. In support of this contention reference was made to the Constitutional Court judgment in Carmichele v Minister of Safety and Security.

The Constitutional Court dispatched with this rather half cooked argument by making the following telling observations:

Part of the answer to this is that neither Mr Tsebe nor Mr Phale had been convicted of murder. In terms of our law anyone who is charged with a crime or who is suspected of the commission of a crime is presumed to be innocent until proven guilty. That principle applies to persons in the position of Mr Phale as well. In any event there are many citizens of our own country who are not in jail or detention and who are out in society even though they face serious charges like murder. We do not say that they must never get bail merely because they are charged with serious crimes. After all, the obligation to protect the population, which the Government has, requires nothing more than that the Government must put in place reasonable measures to discharge that obligation. The decision of this Court in Carmichele is not necessarily inconsistent with the non-extradition or non-deportation of a person in Mr Phale’s position. Finally, as Carmichele was relied upon without any elaboration, no further consideration thereof is warranted.

Several other “arguments” which also seem to want to ignore the clear precedent set in the Mohamed case was also dispatched with. In a separate minority judgment, Acting Deputy Chief Justice Zac Yacoob, went even further finding that the Constitutional Court should not even have heard the case because the issues were so clear cut that there was clearly no prospect that the state would have been successful. As Justice Yacoob pointed out, several of the arguments were no more than attempts at criticising the Mohamed judgment (without ever attacking the correctness of the original judgment). The lawyers were therefore trying to have the Mohamed judgment modified without ever making that argument explicit.

Lawyers (whether in the full time employment of the state or whether contracted by the state as advocates) have a duty not only to their clients, but also to the courts and the Constitution. They should not advance arguments that are clearly untenable and that they should know have absolutely no chance of being accepted by the court — ever. If the lawyers wanted to challenge the correctness of the Mohamed judgment, they should have done so directly. Their failure to do so, while at the same time advancing arguments that are at odds with the requirement that the legislature and the executive should respect settled precedent (unless they seek directly to challenge the correctness of the precedent) and should not act in ways that infringe on the separation of powers, is at best questionable.

In this case the state did not get its money’s worth from either its in-house lawyers and from the very expensive advocates who advanced quite ridiculous arguments on behalf of the state.

BACK TO TOP