Braamfontein = 1 : Bloemfontein = 0

When South Africa became a democracy in 1994, the new Constitution replaced the system of Parliamentary sovereignty (in which Parliament could make any law as long as it followed the correct procedure) with that of constitutional supremacy (in which every law had to conform to the requirements of the Bill of Rights). This brought about a legal revolution and gave our courts enormous power to declare invalid Acts of Parliament as well as the power to declare invalid the conduct of members of the executive – including the President.

But in 1994 South African courts were still largely staffed by conservative white men appointed by the apartheid government and the courts therefore lacked democratic legitimacy. To address this problem, it was decided to create a new Constitutional Court as the highest court for all constitutional matters. The Constitutional Court was also given the power to  make a final decision on whether an issue was a constitutional matter or not, thereby giving it the power to determine — to some extent at least — the limits of its own jurisdiction. The Supreme Court of Appeal (SCA) — then still called the Appellate Division of the High Court — would remain the highest court for non-constitutional matters, but its power and status had clearly been diminished by the new constitutional dispensation.

Although some of the judges appointed to the Constitutional Court in 1994 served as High Court judges, other Constitutional Court judges were appointed from the ranks of academia. Highly respected human rights lawyers and lawyers who took part in the struggle against apartheid such as Arthur Chaskalson, Albie Sachs and Pius Langa were also appointed without ever having served on the bench. This did not go down well with more traditional lawyers and the majority of apartheid-era judges.

At first, the head of the SCA remained the Chief Justice while the head of the Constitutional Court became the President of that court. But as our constitutional jurisprudence developed, it became clear that the Constitutional Court — and not the SCA — was now the highest and most important court in South Africa and the Constitution was amended to make the  head of the Constitutional Court the Chief Justice (and hence the head of the judiciary) while further “downgrading” the SCA by making its head the President of that court.

It was therefore perhaps inevitable that perceptions would arise about tension between the two highest courts in the land. The SCA judges (stuck in Bloemfontein — both physically and metaphorically) were seen as being reluctant to embrace the new constitutional dispensation — even when its own constitutional jurisdiction was extended by the 1996 Constitution. Initially the SCA seemed reluctant to make use of section 39(2) of the Bill of Rights, which requires every court, tribunal or forum to promote the “spirit, purport and objects” of the Bill of Rights when it interpreted any legislation, and when developing the common law or customary law.

The SCA attempted to draw a distinction between “purely” constitutional matters — on which the Constitutional Court  would have the final say — and matters relating to the interpretation of legislation and the development of the common law — which it saw as its rightful domain and on which it hoped to retain the final say. But the Constitutional Court seemed to have put a stop to this when  it made it clear in the Pharmaceutical Manufacturers case that there was only one body of law in South Africa:

The common law supplements the provisions of the written Constitution but derives its force from it. It must be developed to fulfil the purposes of the Constitution and the legal order that it proclaims — thus, the command that law be developed and interpreted by the courts to promote the “spirit, purport and objects of the Bill of Rights”. This ensures that the common law will evolve within the framework of the Constitution consistently with the basic norms of the legal order that it establishes. There is, however, only one system of law and within that system the Constitution is the supreme law with which all other law must comply.

Game, set and match to the Constitutional Court — or so it seemed. Until the Constitutional Court was asked to interpret section 7(1)(b) of the National Building Regulations and Building Standards Act 103 of 1977 in the case of Walele v The City of Cape Town and Others.

In its judgment in the Walele case, the Constitutional Court used a so called “purposive approach” to interpretation of the section to give this section an expansive meaning that was more protective of the property rights of those who might object to the building plans of their neighbours.

In effect, it found that it was an applicant who sought approval for building plans who had to satisfy the local authority that the area in which it is to be erected will probably not be disfigured; will probably not be unsightly or objectionable; and will probably not derogate from the value of adjoining or neighbouring properties. Moreover,  it imposed an obligation on the local authority to ensure the absence of the disqualifying factors before it granted building permission.

The SCA was not amused. It was of the opinion that the Constitutional Court had gotten it all wrong and shortly afterwards the SCA in True Motives 84 (Pty) Ltd v Madhi and Others — using a far more literal and conservative approach to legal interpretation — found that it was the objector to the plans who had to satisfy the local authority about the positive existence of the disqualifying factors and also found that there was no duty on the local authority to ensure the absence of the disqualifying factors. It did so by arguing that the Constitutional Court’s interpretation of section 7(1)(b) was what lawyers call obiter dictum (an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding) and was therefore not binding on the SCA despite it having been made by a higher court.

Justice Jaftha, who has since been elevated to the Constitutional Court but had authored the Walele judgment while acting as a judge in the Constitutional Court, wrote a spirited dissent in the True Motives case. Justice Cameron, who has since also been elevated to the Constitutional Court, signed on to the majority decision in the SCA case in which it ignored the Constitutional Court interpretation of section 7(1)(b) of the relevant Act.

The table was therefore set for a rather interesting judgment when the applicants in the case of Camps Bay Ratepayers’ and Residents’ Association and Another v Harrison and Another raised the question of whether the SCA had ignored the principle of stare decisis (the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions) and had therefore unlawfully overrule the Constitutional Court’s Walele judgment. Jaftha and Cameron, who had been on different sides of this case in the SCA, would now have the opportunity to re-visit the issue as members of the Constitutional Court. And what would they say about the rather surprising argument by the SCA that the Walele interpretation of section 7(1)(b) was not binding on it?

Sadly, the Constitutional Court avoided dealing with the issue directly as it found that the applicants had not, in fact, relied on section 7(1)(b) in its long battle to stop the building of a rather fancy house in Camps Bay. But the Constitutional Court nevertheless proceeded to give the SCA and other courts a sermon on the importance of stare decisis (also called the doctrine of precedent in which lower courts are bound by the precedent set by higher courts).

Stare decisis, said the court in its judgment handed down last Thursday, was important because it ensured “certainty, predictability, reliability, equality, uniformity, convenience”. It then pointedly proceeded to remind the SCA:

The doctrine of precedent not only binds lower courts but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos….

Of course, it is trite that the binding authority of precedent is limited to the ratio decidendi (rationale or basis of deciding) and that it does not extend to obiter dicta or what was said ―by the way. But the fact that a higher court decides more than one issue in arriving at its ultimate disposition of the matter before it does not render the reasoning leading to any one of these decisions obiter, leaving lower courts free to elect whichever reasoning they prefer to follow. It is tempting to avoid a decision by higher authority when one believes it to be plainly wrong. Judges who embark upon this exercise of avoidance are invariably convinced that they are “doing the right thing”. Yet, they must bear in mind that unwarranted evasion of a binding decision undermines the doctrine of precedent and eventually may lead to the breakdown of the rule of law itself. If judges believe that there are good reasons why a decision binding on them should be changed, the way to go about it is to formulate those reasons and urge the court of higher authority to effect the change. Needless to say this should be done in a manner which shows courtesy and respect. Not only because it relates to a higher court but because collegiality and mutual respect is owed to all judicial officers, whatever their standing in the judicial hierarchy.

This extraordinary and pointed slap-down of the SCA by the Constitutional Court will hopefully not go unnoticed by the judges in Bloemfontein. Although the Constitutional Court refrained from expressing an opinion on whether its interpretation of section 7(1)(b) of the Act was part of the precedent that the SCA was bound by or merely obiter dicta, I suspect this passage quoted above was included in the judgment handed down last week to provide the SCA with the opportunity to see the error of its ways and to abide by the principles laid out by the Constitutional Court in the Walele case.

Whatever one’s views on the correct interpretation of section 7(1)(b) of the Act, the SCA’s argument that the interpretation provided of that section by the Constitutional Court was obiter dictum is rather difficult to justify. To this reader, the SCA decided that the Constitutional Court had given a wrong interpretation of the section and proceeded to ignore it – something it could not do as it was bound by the Constitutional Court’s interpretation.

It is not difficult to read the quoted passage above as a pointed criticism of the SCA. After all, the Constitutional Court by implication accused the judges of the SCA of inviting legal chaos by completely disregarding the ratio decidendi of a Constitutional Court judgment — merely because it thought the Constitutional Court judgment was wrong. As Braamfontein and not Bloemfontein now has the final say in the interpretation of legislation, one hopes that the SCA judges will heed the call and will change their “wicked ways”. In the end, this is not a fight they can ever win.

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