Last year I attended a seminar where a judge of the Supreme Court of Appeal (SCA) inadvertently made a strong case for the merger of the SCA and the Constitutional Court. He argued quite forcefully that the courts should not be merged because the SCA deals with all aspects of law – from Company Law to Tax Law to law of Contract – and that the Constitutional Court judges just do not have the expertise about these aspects of the law to do a proper job of dealing with appeals on these matters.
As I sat there listening to the senior SCA judge, I was wondering whether he has ever read sections 8 and 39 of the Constitution. After all, section 8(1) states that the Bill of Rights applies to all law and also binds the judiciary, while section 39(2) states that when interpreting legislation, and when developing the common law or customary law every court must promote the spirit, purport and objects of the Bill of Rights.
This means that the Constitution – and not Voet or Grotius or some other weird Roman Dutch authority – now becomes the source for any development of the law. It is therefore the logic and values of the Bill of Rights – and not the logic and values of the common law – that should guide judges when they interpret or develop the law. If one grasps this, it becomes impossible to argue with a straight face that there is a bright line between “hard law” (tax law, company law, law of contract or delict) on the one hand, and the wishy-washy human rights law on the other.
Maybe some judges of the SCA (and many academics) have not yet internalised this revolutionary development in our law and may thus benefit from the wisdom of colleagues on the Constitutional Court. Sitting in the same-tea room might assist them to come to grips with the new legal order in South Africa in a way that the cold Bloemfontein air does not.
I am therefore ambivalent about the latest ANC proposals for a possible merger of the SCA and the Constitutional Court. Do we really need an SCA when all law and the doing of law are now supposed to be infused with the values of the Constitution? Is it not just an expensive extra forum for appeal for big companies with deep pockets? If we really want to provide more people with access to courts would it not be better to streamline the system and merge the two top courts in the country as the ANC is now proposing?
One argument against such a move would be that the Constitutional Court is the highest court tasked to make final decisions on extremely important issues of great political significance. It is argued that they should therefore be well-resourced and that they should be given the time to carefully consider each case before they deliver a judgment with far-reaching consequences. I agree with this line of thinking (I think!).
Another argument against a merger relates to fears about the ANC’s commitment to judicial independence. Is this proposal not just a way to pack the Constitutional Court with pro-ANC (or even worse pro-Zuma) judges? This, to my mind is not a good argument because the SCA is less transformed than the Constitutional Court and its judges therefore more likely to strike down legislation or government action than the present crop of judges on the Constitutional Court.
But we do have a problem that the ANC proposals seem to want to address, namely that ordinary citizens can hardly access the courts due to the expense. If one wants to defend one’s rights, one will often have to first go to the local High Court, then to the SCA and only then to the Constitutional Court and one will have to employ a lawyer who knows what she is doing. This will cost hundreds of thousands of Rands – which most of us do not have.
I am not sure by merging the two top courts we will solve this problem though as access to courts will remain out of reach for most South Africans: to most it will make no difference whether the legal Bill is R500 000 or R1 million.
One way of helping individuals to vindicate their rights would be through a beefed up, better resourced, Human Rights Commission with a strong legal aid component. This would require an amalgamation of the various human rights bodies like the Youth Commission, Commission for Gender Equality (CGE) and the Commission for the Promotion and Protection of the Rights of Cultural and Linguistic Communities into one super human rights commission.
The chances of this happening is rather slim, not only because of the vested interests of those who staff the useless bodies like the CGC that will resist such a move, but also because of resistance by the government. Which government wants a well-run and well-resourced human rights body taking them to court for breaching the rights of poor citizens? Most governments would be suspicious of such a body and would rather avoid being taken to court all the time for disregarding the rights of its citizens.
No wonder a proposal is made rather to merge the two top courts – its a spectacular move that appears to address the problem without actually addressing it. A perfect, cynical political move worthy of Sir Humphreys in Yes Prime Minister.
Pierre, when you say that the SCA is “less transformed” than the CC, do you mean, has more white males? If so, why not just say so? I think that it is especially important now to recognise that- as you are well aware – more melanin does not equal more progressive. Also, are you familiar with Dyzenhaus’ study in the SALJ on the correlation between “transformation” and executive mindedness on the bench?
Michael, I use the term “untransformed” very deliberately to encompass more than just racial and gender transformation. I mean they do not always embrace the values of the Bill of Rights with the same enthusiasm and often hand down judgments that reflect their affinity for the formalistic and deeply conservative legal culture which prevailed in SA before 1994. I have written about the dangers of equating racial transformation with “true” transformation on the bench on several occasions because I am aware of the study you refer to.
You may have a point on the ANC’s commitment to judicial independence. I think, though, that sections 8 and 39 of the Constitution would prove cold comfort to a litigant, who bears the onus of proof against SARS, when arguing a capital v revenue issue. After all, the Bill of Rights applies to all law and to make that application one needs to be more than acquainted with all law – even that derived from Roman Dutch sources.
The reason I like having the Constitutional Court at the pinnacle is for the very reason Pierre pointed out in the piece: the lower Court Judges don’t necessarily look at the issue via the Constitutional “prism”, but that is ALWAYS the case with the Constitutional Court.
Prof De Vos – you left out s 2 which states that the Constitution is the supreme law of the land, and that any law or conduct inconsistent with it is invalid. As I more or less suggested in my post on the previous blog below, I am also rather ambivalent as far as merging tha SCA and the CC is convcerned. I do however think that different chambers might be necessary; but, when constitutional matters are heard, the Constitutional Chamber must be constituted of at least eight judges [s167(2)]; and, when ‘other’ legal matters (bear in mind that the Constitution is the supreme law to which all, other laws are subject) are concerned, the Appeal Chamber may be constituted of at least three judges (or five in cases where the CJ or DCJ so orders. [I believe in the old (apartheid) days the AD could also hear 'constitutional' ('staatsreg') matters and that it was then imperitive for the court to be constituted of at least five judges.] If this happens, then one will have to think about filtering ‘constitutional’ matters from other ‘ordinary’ matters for purposes of appeal, buit bearing in mind that in deserving constitutional matters, the Constitutional Chamber can be approached as court of first (and, sometimes, last) instance. As far as the accessibility problem is concerned, I agree that we need a more strongly funded and staffed Legal Aid scheme (perhaps we can utilize law professors on a pro amico basis?); and, we can also think of judicial activism in the style of Indian judges to help indingent ‘people of straw’ to approach the courts and to bring their matters to justice.
It is clear by the current political maneuvers by Government (which inherently is the decisions of the ANC’s NEC) to disband the “Scorpions” and now “merge” the SCA and Con Courts is a blatant attack on the very systems of justice of our country. When events like these occur one must become very weary, as the saying goes…… History has a tendency to repeat itself”.
It is clear by the current political maneuvers by Government (which inherently is the decisions of the ANC’s NEC) to disband the “Scorpions” and now “merge” the SCA and Con Courts is a blatant attack on the very systems of justice of our country. What is to become of the principle of “Separation of Powers” in our country? When events like these occur one must become very weary, as the saying goes…… History has a tendency to repeat itself”.
Eish, met ys ja, kasi is back agian from an extended vac in Putsonderwater. Prof i think you may recall perhaps so the rest of the bloggers that this was the very problem we sat with right at the inception of the CC. On which instance it was appropriately decided that the CC should focus primarily on issues relating to social justice however, as a matter of fact the court are entitled to hear other issues as well for it is for all intends and purposes the court of final instance. I think the statement made by the senior SCA judge is a clear indication why the two courts should never merge. Admit it, no piece of legislation except the constitution explicitly cater for the rights that makes us human i would like to refer to it as ‘primary rights’, on second thoughts not even impliedly. I also last year attended a talk by an SCA judge who stressed the fact that the constitutional maxims i.e. fairness, reasonableness, and justness should be worked into our law. He admitted that especially our contract law reqiures a massive makeover as far as this maxims are concerned. He said that there are ground braking cases in which the same law was applied but each judge reached a different conclusion(where are the positivists). Saying that is a clear indication that perhaps emphasis should be shift to the boni mores.
As an ordinary and not-so-rich South African citizen, I just want to say I really, really like the idea as outlined by Pierre of a beefed-up, better-resourced Human Rights Commission.
The chances of this happening are rather slim, you say? Well, in that case, we might as well throw the entire Bill of Rights on to the scrap heap. The government wouldn’t like being taken to court all the time for disregarding the rights of citizens? Well, now I’ve just about heard everything. There is, after all, a simple remedy: stop disregarding the rights of the bleeding citizens, OK? Is this a democracy, yes or no?
I take your point Pierre: You have indeed noted that “more melanin” does not equate automatically to “more transformed.”
I sense, though, that your conclusion that the SCA is less “transformed” than the SCA is impressionistic, rather than scientific. That is understable, given that, the criteria for “transformation” are highly contestable..
Some would argue, for example, that Cameron J’s opinion in Brisley v Drotsky 2002 (4) SA 1 (SCA) paras 88-95 (“shorn of its obscene excesses, contractual autonomy informs also the constitutional value of dignity”), is distinctly “untransformed,” in the sense that it is antithetical to a social-democratic vision of private rights. Others,would deny that a transformative vision of the Constition demands that contractual autonomy be annuled.
My broader point is, I suppose, I is that, even putting skin colour aside, the precise meaning of “transformation” (like “Ubuntu,” a terribly wooly term), is far from self-evident.
Michael mentions Dyzenhaus’ study in the SALJ on the correlation between “transformation” and executive mindedness on the bench. Care to elaborate on it? What were the findings?
Wessel, see ‘The Pasts and Future of the Rule of law in South Africa,’ 124 SALJ 734 (2007). (Coincidentally, Pierre published a fine article in the same issue.)
Dyzenhaus refers, rather ominously, to “Gleichschaltung,” a word used in Germany after 1933 to describe the process of “bringing into gear or synchrony all organs of state so as to ensure an efficient machine for the unchecked implementation of the regime’s policy.”
Of course, it would be absurd to equate the current ANC govt to the Nazi regime, or to claim that Gleichschaltung = Transformation. Nevertheless, the historical record suggests that efforts at wholesale social renewal, even if launched with the best of intentions, and objectively necessary to clear the debris of an evil regime, can slip into totalitarianism. (“Lustration” in post-communist Czechoslovakia also comes to mind.)
I propose that the term “transformation” be banned from public discourse. It has become too vague to be of much use. If by that term you mean race of gender-based hiring and firing, just say so. If, like Pierre, you mean appointing people who share your own commitment to a particular ideology (whether it be socialism, social democracy or even the dreaded “liberalism”), why not come out and say in so many words that this is what you would like to see? Rather that than dressing up your racial or ideological program as “transformation.”
Michael – I think I’m understanding what you are saying above, namely that “Dyzenhaus’ study in the SALJ” shows a “correlation between ‘transformation’ and executive mindedness on the bench”. If, for example, Hlophe’s claim that he had a ‘mandate’ (of course accepting that he did mention that claim when he spoke to Nkabinde and Jafta – which is still to be determined by the JSC) to discuss the Zuma matter means that the mandate is from Zuma himself (or from someone in the Zuma camp); and, he then, when someone in the Zuma camp (perhaps JZ himself) becomes President of RSA, is appointed as Chief Justice, then surely the judiciary will be subject to a justifiable accusation of ‘executive mindedness’. This is where there is a problem in our system of ‘checks and balances’ to ascertain that none of the trias politica abuses its power – the President appointing CC judges (even though from a list presented by the JSC, which can only be rejected ‘with reasons’ – s 174(4)(b) of the Constitution) can easily mean that he/she appoints judges that will be partisan to the executive’s policies. And if the JSC recommends judges for appointment purely with the aim of transforming the judiciary on grounds of race/gender/whatever; the appointment of judges may lose sight of the required competency (including proven impartiality – see, e.g., Judge Motata’s racist and sexist remarks on the video in his drunken driving case) for such an important task; and, in the process, some of the judges so appointed by the President (even though on advice of the JSC – s174(5)) may develop a degree of ‘executive mindedness’. That would mean that the judiciary in the end merely toes the line of the executive (which is but an extension of the ruling party’s policy – if one looks at the current hiring and firing of Premiers), and that the rule of law and constitutionalism flies out the back door. I kind of agree with Henri’s view under the ‘transformative constitution’ blog below, that ‘transformation’ is essentially ANC jargon; and, with Hellen Zille at the Wits School of Law yesterday, that ‘liberation’ (including ‘transformation’) is all about attaining and retaining political power (as in Zim and in SA today), and not about governing according to the standard of the common good, what the Constitution aims at. Shouldn’t ‘transformation’ mean that all stumbling blocks (obstacles) of discrimination and past injustices be removed, by providing for equal opportunities (training, interviewing and appointment) for all people for judicial (or other) appointment on merit? I must agree with you, therefore, that the term ‘transformation’ should be jettisoned.
Michael, one could make at least a plausible argument that the Constitution requires a transformative reading as was done by Karl Klare in his seminal article published in the SAJHR in 1998. This use of “transformative” is very different from the use of the term “transformation” by those who want to bludgeon all critics of specific actions or policies into submission. I agree that “transformation” is a much abused term because it often means the handing over of power to a small clique.
But I really do think that South Africa’s Bill of Rights is NOT a liberal document. It provides for – even mandates – affirmative action, applies horizontally; contains a set of social and economic rights and place positive duties on the state which is all far removed from a traditional liberal conception of a Bill of Rights as a shield against state action. If Leon, Zille and others think it is liberal because it also contains liberal rights like the right to property and the right to freedom of expression, then they are just lazy, uninformed or dishonest with their voters.
I would like to tell readers of this blog that the senior SCA judge is suffering from what most law students , as well as their lecturers , are suffering from. Constitutional law Bashing Mentality (CBM).
I have friends here at the University who do not want to here a thing about constitutioan law subjects. They hate them with unfeigned passion. They do them simple because they are part of the curriculum.
This “epidemic” is also exasperated by the fact that some legal academics promote their areas of specialisation at the expense of other areas. They are not afraid to tell students that if they want to go “somewhere” in life, they should consider specialising in commercial subjects. It is as though commercial subjects are independent of other subjects.
There is also a general acceptence by both students and academics that students who do commercial subjects are “sharper ” than students who do other subjects such as Bill of Rights , Human rights law etc.
This thinking , in a way, makes students to develop negative attitudes towards constitutional law subjects. Unfortunately , some students do not leave this flawed mentality at university. They carry it all the way to the doors of our hounarable SCA !
Pierre, you said: ‘I agree that “transformation” is a much abused term because it often means the handing over of power to a small clique.’
That may be the result of ‘transformation’ as currently practised, but what about the meaning when the word transformation is used, which is what Michael talked about?
Is is about race of gender-based hiring or appointing those with a particular mindset? And is use of the word not obfuscating the intention?
When you used the term in your post in what sense did you use it?
Should appointments to government functions keep in mind whether functionaries are of a particular race or whether they are likely to be progressive in their actions and policy making?
Part of the problem of course is that if by transformation was meant a concerted effort against inequality, regardless of race, then it would be much closer to the spirit and meaning of the constitution don’t you think Pierre?
Thembisa, its not all that surprising that Constitutional Law has taken a knock, and CBM is rife.
We often hear the mantra that South Africa has the most progressive constitution in the world. Yet, ordinary South Africans often experience life as even more arbitrary, unequal, shorter, more violent, their interactions with the state more precarious and their rights even more curtailed than in the days of grand apartheid.
Should the fault be laid at the door of the constitution? No. Much of it is the fault of the executive. But it has shown up the impotence of laws in the face of actual norms and behaviour in society.
In short constitutional law has lost some credibility.
Pierre, you say that the SA text “even mandates” AA. But s. 9(2) goes no further than permitting (“may”) AA. The balance of s., 9 is solidly “liberal.”
I have two broader objections to what you say:
First, you mention that the SA document contains both “liberal” rights (property, etc), and socio-economic rights on the other hand. But as you well know, this distinction is problematic. The right to votes, and to a fair trial (and even, arguably, to speak), demand substantial, revenue-consuming state action. And of course every socio-economy right has a “negative” aspect.
Second, because meaning is a product of the interpretative process, and does not inhere in a neutral text, whether a constitution is “liberal” or not depends, in large measure, upon the judges that apply it. Even the archetypically liberal constitution (the U.S.), has been plausibly interpreted by “left” academics, as producing “positive rights. Do you really want to argue, along with Scalia J. (and others like him in whose company you would be embarrassed to be seen), that the ‘left” interpretation is not faithful to the text? Surely you would agree that it is not impossible to make an argument that the U.S. Constitution, properly interpreted, not only permits, but mandates, affirmative action, when necessary to make equal protection meaningful.
Thembisa i remember last year at the graduation ceremony at UWC(HOLA PIERRE) when the now retired chief justice the honarable Chaskelson received an honarary doctorate. Amongst the best speeches i have ever listened to he inter alia said that, his era fought to have a constitution as the supreme law of the country. However, that was only the beginning of this nasty fight, our generation’s duty is he said, to turn it into a living document (Wessel hoezit daar). Also i think one could in this regard consult the article written by the man himself, it is called ‘A BREACH TO FAR’ (my sincerest apologies Pierre if i have mis qouted the title it has been some time since i have red this academic masterpiece. GHETTO FABULOUS, ja ne.
I just think that the Constitutional Court as a new entity post-1994 has given SA jurisprudence a great leap in that the judges have been able to look over the whole gamut of SA law and given it a refreshing breath of constitutional, human rights and modern outlook. It was always going to happen that the court would someday run out of new controversies to deal with in the restricted area of constitutional law. I think the court must be retained but must be given the capacity to determine more general law disputes. The US Supreme Court chooses 100 cases it hears per year. Its 9 justices deal with all subject matters and disputes of great legal importance. It would be good for the Concourt to get this expanded jurisdiction.
Many seem to forget that when this court was created, it was meant to be temporary anyway. This is why the terms of the original appointees kept on changing. Its great performance has justified its necessity. The limit in tenure for the judges (compared to lower courts) makes sure that fresh minds join the esteemed bench over time.
To the ANC, I can only say, “if it aint broken do not fix it”.
But why should they listen to me a Zimbabwean? What do I know about democracy?
But I know tyranny and its source!
Wessel, yes, it is precisley the ambiguity in the word “transformation” that is the problem. That ambiguity facilitates a false consensus.
One side uses the term to mean the active pursuit of the egalitartian values of the Constitution (a meaning with which even apartheid-loving Leon can be comfortable.) The other side advanced a program that implicitly assumes that judges think with their skins.
But both sides say their aim is “transformation.”
Michael, as you well know, I do not subscribe to the view that the Constitution can only be interpreted in one “correct” way. I have, however, argued that there is an ethically more responsible interpretation of the text and am prepared to debate my ethical commitments in this regard with those who have a different view. I agree with you that transformation is often used in a way that cannot be squared with my ethical commitments. Part of my project is to “save” the Constitution from such a – to my mind – unethical use of the word. Transformation is a powerful word in South Africa and merely shouting that it should not be used would be to abdicate one’s political responsibility. Better, in my view, to fight for an ethically responsible interpretation of what transformation should entail – otherwise one merely cedes the ground to the racial nationalists. This is about power and the battle of ideas. You might argue that mine is a Quixotic quest, but like the scorpion (!) in the story of the scorpion and the frog, I cannot do anything else. It’s sort of in my nature.
A John Kane-Berman quote in today’s Business day also touches on the inadequacies of our constitution.
‘IT HAS become a cliche that the South African constitution is one of the most democratic in the world. But it does not deserve this accolade. Democracy in SA happens for a day or two once every five years, then hibernates until the next election. In a democracy truly worth that name, voters would be able to choose their representatives. South African voters choose only lists, not individuals. Some parties then assign people from these lists to geographical areas as “their” member of Parliament (MP) or member of the provincial legislature (MPL).
However, probably the overwhelming majority of voters have not the foggiest notion as to who their assigned “representatives” are. And no wonder. Their MP or MPL is not their chosen representative but a deployee of one or another party, vulnerable to removal at any time. He has no incentive to serve the interests of his supposed constituents, merely those of his party bosses. One consequence has been the failure of ruling party MPs to challenge the government on its AIDS policy even when their purported constituents were dying all around them.’
It’s safe to say that we are giving progressive constitutions a bad name all over the world.
Pierre, you wrote that you “do not subscribe to the view that the Constitution can only be interpreted in one ‘correct” way’”– but that you do think there is an “ethically more responsible interpretation of the text.”
But where does that leave you quite adamant claim (to which I was responding), that the SA Constitution is not a “liberal” document?
It seems to me your claim is then that the text is not “liberal,” in the sense that a “non-liberal” interpretation of the text is “ethically more responsible” than a “liberal” interpretation
If that is indeed what you are saying, then our real argument is not as to the nature of the Constitution after all. Your actual claim is that that “liberalism” itself is not “ethically responsible.” The constitutional debate is thus doubly displaced, from the legal, past the political, and into the ethical realm.
Very well: You say that you are prepared to debate your ethical commitments in this regard. Please let me know your reasons for saying that liberalism is not “ethically responsible.”
P.S. Also, and on a similar note, please let me know whether you assign Ramphele in the same camp as Leon, for her critiques of AA; some of what she has to say is remarkably similar to remarks of Leon and other “liberal” apartheid lovers.
Tony Leon is not a liberal. Liberalism is bleeding-hearts, goody-two-shoes stuff and therefore not ethically responsible. Transformation, in the South African sense, means the process whereby something or another – i.e. the judiciary – is brought under the control of the ANC. Hell, everybody knows that.
Yes, the constitutions various rights certainly are open to interpretation, especially when in conflict with one another. But, I think there’s little doubt that the drafters did not have a racially exclusive Africanism in mind. And little doubt that on their mind was the need to address inequality.
Seems I’m on a roll today. Here is a account from an outsider:
I’ve wanted to spend a summer in South Africa (and specifically in Cape Town) for a really long time. I had heard how beautiful the city was, I admired South Africa’s super progressive constitution, and I was intrigued by the legal/social/political issues emerging 15 years after apartheid.
http://www.boston.com/news/world/blog/2008/06/refugee_crisis.html
Michael, as indicated before the text of the Constitution contains elements that would make it difficult to justify a traditional liberal interpretation. Possible yes, plausible within the community of interpreters, no. This is also the line taken by the Constitutional Court.
I think there is a big difference between Tony Leon’s statements and that of Mamphela Ramphele. The latter questions the way in which affirmative action have been abused. The former states that affirmative action is discriminatory per se. Between these positions is a huge ideological chasm.
Pierre it would be great if you gave more content to the terms you use.
Why don’t you just make plain what you mean by terms such as ‘liberal’ or ‘transformation’.
There are liberal elements to the constitution and even a second year law student would have to admit there are more socio-economic rights in ours than in the German or US one on which ours is based.
The fundamental & much clearer question remains, how you think this constitution should play out questions of race and inequality, which I would argue are *the* key issues facing us as a society free from ideological diversions like ‘transformation’.
Pierre, you are wrong on both counts.
1. Ramphele has described “affirmative action and black upliftment” as “strategies imported mindlessly for America were they have not . . . worked.” She says she will have “no part” in such reverse discrimination. (See Gevisser, Portraits of Power,’ p.12.)
2. Leon is on record as saying “[p]roactive steps need to be taken to overcome historical disadvantage and right the wrongs of the past.” He has criticised the government for “interpreting affirmative action as discriminatory quotas.” (See http://www.da.org.za/da/Site/Eng/ campaigns/2004/ misc%5Cmanifesto.doc.)
I certainly hold no brief for Leon, but I don’t think it assist the debate to mischaracterise his position. These statements — and many others I could cite — demonstrate that Ramphele and Leon are not as far apart as you would like to believe.
Pierre, I have never quite understood this Fishian notion of adjudicating hermeneutic disputes by appealing to a “community of interpreters.” Perhaps you can help me.
I mean, how exactly do we define this “community” with respect to the SA text? Judges? Academics? (Including German and U.S. law teachers? Ordinary citizens?) And is it a matter of counting noses? (Would you try to argue that 143 academics say the text is social democratic, while only 14 say it is “liberal” in nature?)
Same question re the U.S. Perhaps only a minority of the U.S. “community of interpreters” advances left-wing vision of the U.S. Would you have to say that in that cause, the prevailing right-wing (“counter-revolutionary”?) interpretation is correct?