The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
High Court judges are supposed to have a duty to follow the precedent set by the Constitutional Court and they have to do so in an honest and diligent manner. As readers of this Blog know, I believe South African High Court judges do not always adhere to this injunction. This is either because judges are ignorant of Constitutional Court precedent (as seemed to have been the case in a recent Cape High Court judgment on section 9 of the Constitution involving an exotic dancer from Moldova) or because they do not like the precedent and then “re-interpret” it to fit their own needs (as seemed to have happened in the controversial Von Abo judgment about the expropriation of farms in Zimbabwe).
Where such a re-interpretation of the law is legally credible (in that it is logical and relatively rational and would not undermine the legitimacy of the courts and diminish respect for judges and the judiciary as an institution) and where the outcome achieved is more just than it would otherwise have been if the precedent was strictly adhered to, an argument could be made that one should not be too harsh on a lower court judge. After all, precedent is not water tight and in my book a judge who seeks justice (if that is ever achievable!), while also attempting to take seriously his or her role as judge and the precedent of higher courts is a good judge.
However, in my opinion the judgment in Von Abo v the Republic of South Africa and Others, handed down on Friday in the North Gauteng High Court by Prinsloo J, went too far, producing a judgment that strayed way beyond Constitutional Court precedent, thus straining credulity in the process. Worse, the judgment contains several sarcastic statements and angry denunciations which display a thinly veiled contempt for the government of the day – not something a credible court judgement should do lightly. In both tone and in effect the judgment fails to respect the principle of separation of powers as annunciate by our highest court.
The judgment ordered the Government and the Minister of International Relations to pay constitutional damages to Mr Von Abo because the government and the Minister had failed to honour a previous court order which declared that they had a Constitutional obligation to provide diplomatic protection to Mr Von Abo – whose farms were confiscated in Zimbabwe. The previous judgment also ordered them to take all necessary steps to have Mr Von Abo violation of his rights by the Government of Zimbabwe remedied and to report to the court within 60 days of the order about what steps they have taken to achieve this.
The Minister had not taken any steps in this regard, relying on junior officials and the South African ambassador in Zimbabwe who met Zimbabwean officials and requested the Zimbabwean officials to assist, something which – surprise! – theZimbabweans did not do. As Prinsloo rather caustically states:
The applicant has received no relief despite the good intentions of the officials…. [The Minister exhibited no interest whatsoever in attempting to comply with the orders of this court. Her conduct borders on contemptuous.
The court found that although the SA government said it would comply with the previous order, they “did nothing of the sort”. No effective measures were taken to try and protect the rights of Mr Von Abo. Thus while the government had taken steps, it did not take steps that actually made any difference to Mr Von Abo which meant they had been in breach of the original court order.
This approach – just like the original judgment – completely misconstrues the precedent set by the Constitutional Court in Kaunda and Others v The President of the RSA and Others. In that case the Constitutional Court controversially stated that South African citizens had a right to request diplomatic protection and the Government has a corresponding obligation to consider the request and deal with it consistently with the Constitution. But the judgement by Chaskalson J cautioned as follows:
This, however, is a terrain in which courts must exercise discretion and recognise that government is better placed than they are to deal with such matters…. A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity….
But where the government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.
Although the Constitutional Court judgment has been criticised for its rather timid approach (criticism I agree with), the High Court had a duty to try and reconcile his reasoning with that of the higher court – something he did not do in any plausible manner. The judgment of Prinsloo J does not take to heart the warnings of the Constitutional Court about the courts’ unsuitability to make determinations about the correct line of diplomatic intervention. Because the Government intervention was – according to the judge – less than enthusiastic, it did not comply with the original order. The judge failed to deal with the matter in accordance with the rationality test as set out by the Constitutional Court, and thus failed to adequately justify the decision in accordance with binding precedent.
It might well be that the Government could and should have done more for Mr Von Abo and others like him. South Africa’s attitude towards the Mugabe regime in Zimbabwe has been at best perplexing and at worse scandalous. It might well be that a High Court judge could have fashioned a set of reasons to justify the orders handed down without straining credulity. Sadly Prinsloo J did nothing of the sort.
Of course, whether the original judgment adhered to Constitutional Court precedent is itself highly debatable and if the Minister had appealed to the Constitutional Court, that court might well have overturned the decision. The Constitutional Court is rather conservative when it comes to matters like this and they are very timid about interfering with policy decisions such as decisions about how exactly to conduct foreign policy negotiations. The Minister did not appeal – either because her officials were uninformed about the law or because they were, ironically, trying to use the High Court judgment as a bargaining tool with the unimpressed Zimbabweans.
The Von Abo case raises important issues about the limits of the power of the court to interfere with the policy decisions and actions of the government. Let us hope that the second time around the Minister will get off her backside and appeal the decision, in which case the Constitutional Court may well revisit the timid approach set out in Kaunda.BACK TO TOP