This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law. Written by Pierre de Vos
I have been rather critical of the Supreme Court of Appeal (SCA) in the past and have argued that it has not always embraced the values of the Constitution and the changes the advent of the new Constitution requires in our legal culture. But in recent years the SCA has improved and I was therefore surprised by the ANC resolution to downgrade this court.
Here is my take on this matter published in the Mail & Guardian on Friday.
Mogalakwena municipality in Mokopane, Limpopo, is facing legal action over the re-instatement of a senior official who was dismissed after being found guilty on several charges. A report in the Sowetan says this follows allegations that the decision to re-instate the official was done on instruction of the ANC. The council has been dragged to the North Gauteng High Court over the reinstatement following allegations that the official was found guilty on 26 different charges. The papers filed with the court by Mahwelereng civic leader Piet Pale show that the ANC in the Waterberg region wrote to Mayor Esther Mothibi, instructing her to convene a special council meeting to reverse the disciplinary hearing’s findings and re-instate municipal director for corporate services, Henry Thobejane. Pale seeks an order to set aside the resolution by the council to re-instate Thobejane because ‘it fails to pass the test of rationality and reasonableness’. Thobejane was charged with, among others, fraud, theft, gross dishonesty, dereliction of duties, unofficial removal of official documents and destroying official information, financial misconduct and failure to carry out lawful instructions. The hearing, chaired by Advocate AP Laka, found him guilty on all 26 charges and recommended that he be dismissed with immediate effect. – Legalbriefs
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I wholeheartedly agree Prof with your opinion expressed in the Mail & Guardian. If the CC is to be made the court of final instance in all cases, then surely the way in which the court is currently constituted in terms of s 167 [esp in terms of sub s (2) ] will have to be changed? It is inconceivable that eight or more than eight judges sitting together wlll have the time to dispose of that many appeals per year – thye CC currentlyt dealing with 30 odd cases per year compared to the hundreds of appeal cases currently being dealt with by the SCA per year). The total number of judges of the CC will therefore also have to be increased so that more appeals can be heard than the number of cases the CC is now able to entertain. Even though the total number of judges can be increased, then arises the question of accomodation – the current CC is too small to hear even only constitutional cases, and two appeal courts sitting simultaneously will surely be out of the question? Moreover, if eight or more than eight (five in the old days when the AD still heard constitutional issues) judges will have to sit on matters that are not of a constitutional nature, we are almost certain to have many spilt decisions on merits, with small minorities, which will not be conducive to legal certainty and justice – I say so because even now the CC judges do not always appear to agree on constitutional matters. The current CC judges, at least so I think, do not have the experience nor the expertise that SCA judges have to hear matters on merit (all other matters than constitutional matters), and they have been very careful (if not loathe) to grant people the right to appeal matters concerning merits (e.g., Boesak, Shaik, and many others) in the past. Why emburden them now with this task that they have already conceded the SCA to be better equipped to deal with than the CC itself. Even in some constitutional matters the CC have in the past indicated that the inputs of the High Court and SCA are invaluable, therefore denying direct access in certain cases. Why not leave it like that? And, to make the SCA an intermediate court of appeal between the High Court and the CC, will be more time consuming than what is currently the case; it will raise the costs involved and, only the very rich will be able to afford access to both the SCA and the CC (let alone the High Court); and, the Legal Aid Board is not even equipped to properly help all indigent persons with access to the CC as matters currently stand, so how will it be able to help all of them if the ANC’s restructuring of the Judiciary goes through? I also wonder whether the ANC NEC have consulted the treasurer of the country (while it is still an open question who will follow up good ol’ Trevor Manual) on this issue?
Pierre, your right, this decision is perplexing at first glance.
But is the ultimate and rather brazen aim not to make sure that hi-level corruption cases end up on appeal before the CC rather than the SCA?