About family fights and transformative constitutionalism

When a relatively wealthy man is involved in an acrimonious divorce and subsequently marries another woman, when friction then arise between the new wife and her children on the one hand and the children of her new husband on the other, and when the husband then dies at a relatively young age, it is one of those sad facts that there is a more than even chance that the remaining family members will start fighting with one another — especially about money — and that soon enough they will find themselves on opposite sides of a legal battle that will end up in the Supreme Court of Appeal (SCA) in Bloemfontein.

I was therefore not surprised to read the recent SCA judgment in the case of Potgieter and Another v Potgieter and Others. This case stems from a dispute about money held in trust. A father had created the trust to benefit his two children from his first marriage. (When the trust was created they were still minor children but they are both grown up now.) But after divorcing his wife (after an acrimonious fight) and marrying another woman, he purported to amend the provisions of the trust so that his new wife and her two children might also potentially benefit from the trust.

His two birth children challenged the validity of this amendment to the trust — made a few years before his death — and both the High Court and the SCA agreed that for various technical reasons the variation of the trust deed was invalid. Normally this finding would have resulted in the implementation of the trust deed in its original, unamended form, leaving the new wife and her two children with no benefit from the trust. As the husband had changed his will at the same time that he purported to change the provisions of the trust, his intention to provide for his new wife and her two children would have been thwarted by the nullification of the amendments to the trust.  However, the High Court (in a judgment authored by Bertelsmann J) found this result in the circumstances, unpalatable, contrary to public policy and constitutionally unsound.

Relying on the majority judgment of the Constitutional Court in Barkhuizen v Napier, the judge argued that it was now part of  our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair; and the same principle should be applied in other spheres of private law like the law of trusts.

In consequence the High Court granted an order which effectively awarded one-fifth of the trust assets to each of the two appellants as their exclusive property, while the other potential beneficiaries retained their rights in terms of the amended trust deed in respect of the remaining three-fifths of the trust assets.

The SCA, in a judgment authored by judge Brand (the same judge who, as an acting judge on the Constitutional Court, made such a hash of the case in which a deputy headmaster sued three school boys for defamation), seemed rather horrified by this line of reasoning by the High Court. How could a court possibly deviate from common law principles usually applicable to trusts by invoking the provisions of the Bill of Rights – all merely because it might result in a more fair and reasonable outcome for everyone?

This attitude of the SCA regarding the application of so called “abstract values” like reasonableness and fairness to aspects of the private law is telling. I would argue that it demonstrates a lack of appreciation for the unique nature of our Bill of Rights and the transformative vision it embodies.

The South African Constitution is often said to be a transformative Constitution, something which have been confirmed by the Constitutional Court and in extra-curial writing by various Constitutional Court judges. Minister Blade Nzimande is correct when he points out that our Constitution does not (only) serve to check the excesses of the executive. It is supposed to do much more than that. It should be used by our courts to assist with the transformation of — amongst other things — the legal system itself, including the rules developed over time by judges as part of the common law.

Rules of our common law have often been based on the assumption that we are all born free and equal, that we all have absolute agency and are empowered to make rational choices for our own benefit (even when others we contract or legally engage with are rich and powerful and we are poor or otherwise disempowered), that we are only to blame ourselves if legal rules treat us unfairly or lead to injustice. But these assumptions and the legal rules which were produced in their wake cannot be squared with the egalitarian values contained in our Bill of Rights and the concern with dignity, equality and fairness that runs like a golden thread through that document.

Moreover, section 39(2) of the Constitution states that “when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. It is true that some academics have argued that this means no more than that our courts should promote the values in the Constitution once (and only once) it has decided (for some reason unrelated to the provisions in the Bill of Rights) that it was necessary to develop the comm0n law. According to this view, section 39(2) places no general injunction on our courts to ask in each case where they apply a common law rule whether a particular rule should not be developed to infuse it with the values contained in the Constitution.

In my opinion this view is politically deeply conservative and also, quite frankly, dead wrong. If followed, it would limit the transformative power of the Constitution and would largely insulate the common law rules from the salutary influence of the Constitution. Basic assumptions about freedom of choice and the essential equal power of people in society, which underlie many common law rules but are in fact fictions propagated by the rich and powerful to ensure that legal rules remain rigged in their favour, would largely remain untouched.

The anti-transformative attitude towards the common law has long been said to stem from South Africa’s conservative legal culture and the resistance of many lawyers — even seemingly progressive lawyers — from acknowledging the fact that legal rules are not without political consequences, are not free from ideological assumptions and effects, and are partly determined by the values and ideological commitments of the judges who interpret, develop and apply these legal rules. In the past it has often been said that this attitude about the sanctity of the common law and the supposed a-political and “neutral” nature of legal rules finds its greatest champion and defender amongst some judges of the SCA.

It is against this background that the arguments in the judgment in the Potgieter case should be evaluated. The judgment seeks to distinguish between the application of what it calls abstract values like reasonableness and fairness (which are supposedly vague, lead to legal uncertainty, and are therefore really bad) and the application of so called legal rules that can be distinguished from values (which are supposedly capable of predictable application and thus leads to legal certainty).

In this view, whether a set of traditional common law legal rules favour the rich over the poor or the powerful over the disempowered, and whether the application of the legal rules lead to consequences that are unfair or unreasonable are never relevant. Who cares about injustice when legal certainty is at stake? After all, the law is not political at all and we should ensure that it stays that way by preventing judges from applying abstract values instead of the precise legal rules that produce predictable results in every properly decided case.

To be fair, the judgment merely relied on a distinction between abstract values and legal rules which have long been cherished by judges and many legal academics in South Africa. It confirmed a principle set out in previous judgments of the SCA, namely that reasonableness and fairness are not freestanding requirements for the exercise of a contractual right in South Africa. Thus, the SCA quoted the following passage from one of its previous judgements:

[A]lthough abstract values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent substantive rules that courts can employ to intervene in contractual relations. These abstract values perform creative, informative and controlling functions through established rules of the law of contract. They cannot be acted upon by the courts directly. Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty.

The SCA interpreted the Barkhuizen decision of the Constitutional Court as meaning that it is not yet part of our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair. Perhaps forgetting that it has a duty under section 39(2) of the Constitution to develop the common law to bring it in line with the spirit, purport and object of the Bill of Rights, Brand J then continued that “[u]nless and until the Constitutional Court holds otherwise, the law is therefore as stated.” As I read this statement, the SCA is saying that it will only change its rigid and seemingly anti-transformative approach to our common law if it is forced to do so by those rogue judges of the Constitutional Court.

The SCA also argued that our law cannot endorse the notion that judges may decide cases “on the basis of what they regard as reasonable and fair”, as this “will give rise to intolerable legal uncertainty”.

That much has been illustrated by past experience. Reasonable people, including judges, may often differ on what is equitable and fair. The outcome in any particular case will thus depend on the personal idiosyncrasies of the individual judge. Or, as Van den Heever JA put it in Preller v Jordaan 1956 (1) SA 483 (A) at 500, if judges are allowed to decide cases on the basis of what they regard as reasonable and fair, the criterion will no longer be the law but the judge.

The SCA thus also contended that the decision of the High Court to apply reasonableness and fairness criteria to this case offended the principle of legality, which must be regarded as part of the rule of law. “Making rules of law discretionary or subject to value judgments may be destructive of the rule of law,” said the court.

The problem with this line of reasoning is of course that it is based on the untenable fiction that legal rules do not have to be interpreted at all, that such rules just have an obvious and single meaning that suggests itself to a judge who never has to revert to value judgements when he or she interprets a legal rule.  This view also loses sight of the blindingly obvious fact that when these legal rules are applied by judges, value judgments must inevitably be made. Different judges will not always interpret the same legal rule in the same way and neither will they apply that rule to the same set of facts in exactly the same way.

As any practicing lawyer (or anyone who has read some writing by legal realists) will tell you, this kind of reasoning is not easy to square with reality. After all, often the first thing a lawyer asks when he or she has to appear in court, is who the judge is before whom he or she is going to appear. And why would anyone have been upset about the values and beliefs of our new Chief Justice if they did not think that the value of a judge played a role in adjudication — even when a judge is called upon to apply so called rigid legal rules?

The notion that legal rules provide almost absolute legal certainty is an obvious fiction that cannot bear scrutiny. If rules provided such certainty, why would anyone ever approach a court and ask a court to interpret or apply a legal rule in any dispute? All parties in a legal dispute would ask their lawyers to tell them what the outcome of their case would be and the party who is told that she will lose the case will then be persuaded not to waste her money on legal bills by pursuing the case in court. However, this does not happen in real life because real human beings apply the law.

When I read the reasoning of the SCA in the Potgieter case I was reminded of the Constitutional Court judgment in Van der Walt v Metcash. In that case the court dealt with an appeal from the SCA. The appeal stemmed from a strange situation in which the SCA had handed down two  judgments on successive days in August 2001 but made contrary orders in the two cases which were materially identical. They were made in response to petitions addressed to the Chief Justice for leave to appeal against orders of the High Court in summary judgment applications. In the first order, Mr J van der Walt, the applicant, was refused leave to appeal. In the second, a Mr Kgatle, who is not a party to these proceedings, was granted leave to appeal.

The Constitutional Court, quoting from its judgment in Dawood and Another v Minister of Home Affairs and Others, noted that “[discretion] plays a crucial role in any legal system. It permits abstract and general rules to be applied to specific and particular circumstances in a fair manner.” The Court stated that it “would seriously diminish the efficacy of this role of discretion if a decision made pursuant to its exercise bound other judicial officers in a court at the same level in the later exercise of their discretion in subsequent cases”.

The truth is that there will always be an interplay between legal rules and the values that underpin them on the one hand, and the duty of individual judges (who have their own values, life experience, and acknowledged or unacknowledged beliefs) to exercise a discretion and to treat the parties before them fairly and justly. The notion that legal rules provide absolute certainty is a fiction perpetrated by judges in order to avoid responsibility for the fact that their own values and beliefs play a role in how they interpret legal rules and how they apply those rules to a certain set of facts.

Take the Potgieter case as an example. The High Court relied on so called abstract values like reasonableness and fairness and chose not to apply the normal rules that apply to the enforcement of trusts. The SCA relied on so called abstract values (influenced by what might be perceived as the demands of the capitalist system) like legal certainty to hold the opposite. Both judgments reflect the broader ideological and policy choices the judges made when they were applying the common law. The former judgment just happens to be more just and fair than the latter and also more in line with the letter and the spirit of our Constitution.

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