An embarrassing mistake from the Constitutional Court

South Africa’s Constitutional Court, and the jurisprudence emanating from that court, remain (with some exceptions) well-regarded among progressive legal scholars and judges in South Africa and in many other parts of the world. But an extraordinary recent judgment of the Constitutional Court represents an embarrassing chapter in the Court’s lustrous 25-year history, and tarnishes the reputation of our highest court.

It will be difficult to claim that the case of Jacobs and Others v S would ever be consider as a highlight of the work done by South Africa’s Constitutional Court. For a long-time admirer and defender of the Constitutional Court like myself, the judgment is mortifying. The first problem with the case resulted from the fact that only 10 judges (instead of the usual 11) heard the case. The second problem with the case resulted from the disconcerting mistake made by the Court in a judgment it handed down in an earlier case in 2017.

In Jacobs and Others v S the Constitutional Court had to decide whether to grant leave to appeal to various perpetrators found guilty of murder in terms of the common purpose doctrine in a case of mob justice against a deceased who allegedly stole a cell phone. Five judges held that the case did not raise a constitutional issue and that the court did not have jurisdiction to hear the appeal. Five other judges held that the case did raise a constitutional issue and that the appeal should have been heard. Four of the ten judges who heard the case were acting (rather than full-time) judges of the Constitutional Court.

For reasons that are not immediately clear, Chief Justice Mogoeng Mogoeng did not sit in the case, which led to the equal split, with 5 judges on each side. Because there was no majority for either side, the judgment of the lower court remained undisturbed as, in effect, the Constitutional Court was unable to make a binding decision (which it could only make if a majority of judges supported one side or the other).

Over the past year the Constitutional Court has, in effect, functioned as a court with only 7 permanent members – despite the fact that the Constitution requires a quorum of eight judges to hear a case and determines that the Court consists of 11 judges. In fact, in the judgment of Jacobs and Others v S only six of the ten judges were permanent appointees to the Court.

This instability in the personnel of the Court is a real problem for the quality of the work done by our highest court. This is illustrated by the embarrassing mistake made by the Constitutional Court in a 2017 case, which the litigants in Jacobs attempted to use to get the Constitutional Court to hear the case. The reasons for this instability in the court personnel are threefold.

First, the Chief Justice had only recently invited application for two vacancies on the court, despite the vacancies being open for about 18 months. Second, over the past year the Chief Justice has been absent from the court for more than half of the cases heard by the Court, which is rather unusual as previous Chief Justices sat in every case heard by the court unless they were on sabbatical leave. Third, usually at least one of the permanent justices on the court at any given time are on sabbatical leave.

In a recent interview with the Mail & Guardian, Chief Justice Mogoeng insisted his absences from court were work-related and justified. He conceded that having four acting judges sitting at any given time was not ideal. But he stood by his decision to leave two of the vacancies at the court open for more than a year so as to allow for the pool of potential candidates to the Court to be widened. However, as section 237 of the Constitution states that “all constitutional obligations must be performed diligently and without delay”, it is not clear whether the Chief Justice has the power to delay the process for the appointment of Constitutional Court judges.

The disagreement in Jacobs and Others v S revolved around a disagreement about whether the Constitutional Court has jurisdiction to decide a matter which concerns the mere application of accepted legal principles and purely factual disputes between the parties. Put differently, can the Constitutional Court interfere in a case whether a lower court got the facts wrong or applied a settled legal principle wrongly to the facts?

Until 2017, the long-settled answer to this appears to have been that it cannot. As Justice Froneman pointed out in his judgment:

This Court has repeatedly held that (1) in criminal matters it will not entertain a challenge on the basis only that it is wrong on the facts and (2) that the mere misapplication of an accepted common law rule by a High Court or the Supreme Court of Appeal does not ordinarily raise a constitutional matter.

The problem is that in 2017 the Constitutional Court made a ruling in Makhubela v S which seems to contradict all its previous judgments on the matter. In doing so, it wrongly relied on S v Thebus (a judgment handed down back in 2003) to justify its decision that the mere application of the common purpose rule raised a constitutional issue. The applicants in the present case made much of the ruling in Makhubela to try and convince the Court that it had jurisdiction to hear the appeal. In Makhubela the Constitutional Court held (in a unanimous judgment) that:

In addition, this matter concerns the proper application of the doctrine of common purpose.  The doctrine of common purpose involves the attribution of criminal liability to a person who undertakes jointly with another person or persons to commit a crime, even though only one of the parties to the undertaking may have committed the criminal conduct itself.  Its effect is therefore far-reaching, and implicates the constitutional rights of freedom of the person and the right to a fair trial, including the right to be presumed innocent.

What is the Constitutional Court to do when it completely misinterprets its own previous judgments and makes a ruling that contradicts a long line of precedent? Some judges seem to respond to this by ignoring the problem, while others (in this case justice Froneman) bravely face the problem head-on. Of the four judgments, his alone explained and confronted the embarrassing problem. He did so in eloquent detail, explaining:

The italicised portion of that quotation wrongly describes the law. Even Homer nodded.  And courts sometimes make decisions per incuriam, or in a more brutal translation, ‘through lack of care’. The Latin phrase sounds more impressive than its English translation, but, embarrassing as it may turn out to be, one must examine whether the decision suffers from a lack of care….

I consider that the offending sentence was made through lack of care, at least on my part. The lack of care is this: As precedential authority for the statement that the effect of the doctrine of common purpose implicates the constitutional rights of dignity and freedom of the person and the right to a fair trial, including the right to be presumed innocent, Makhubela relied on this Court’s judgment in Thebus. The problem is that Thebus said exactly the opposite.

In other words, in 2017 the Constitutional Court handed down a judgment in which it wrongly held that the application of the common purpose doctrine implicates constitutional rights. The judgment contained a footnote to back up this claim. The footnote referred to a specific passage in its 2003 Thebus judgment as authority for the proposition quoted above. However, the passage in Thebus the court referred to in Makhubela has nothing to do with the claim made in the Makhubela case. In the incendiary language of the day, one might call this footnote in Makhubela a “fake footnote” containing “fake news”.

It is important to note here that Deputy Chief Justice Zondo disagreed with the conclusion that Makhubela was clearly wrongly decided. It is beyond the scope of this article to discuss his highly technical arguments here, but I note that the judgment does not engage with the fact that the 2017 judgment invokes authority that does not exist. In any event, as Froneman further explains:

So in Makhubela, in my view, we misunderstood and misapplied the reasoning and outcome of this Court’s own decision in Thebus. Apart from its reliance on Thebus, our judgment in Makhubela offers no other substantive justification for asserting that the doctrine of common purpose implicates the constitutional rights of freedom of the person and the right to a fair trial, including the right to be presumed innocent. That is sufficient reason not to be held to the errant statement in Makhubela. It was in conflict with the precedent it relied on. To my mind that shows it was clearly wrong.

Courts are not infallible, and mistakes do occur. On two previous occasions over the past 15 years I have alerted the registrar of the Constitutional Court of mistakes in judgments where the judgment referred to the wrong section of the Constitution, and the mistakes were then fixed. But one of the reasons we have 11 justices (preferably 11 permanent justices) sitting on the Constitutional Court (and why each justice employs law clerks) is to keep mistakes to the minimum.

But when so many of the justices hearing a case are acting on the court, and lacking in the institutional knowledge that comes from sitting on the court for many years, there is an increase in the possibility of embarrassing mistakes like these slipping in. Hopefully things will improve. This is because two new justices will be appointed to the Constitutional Court in April, and because we can assume that the Chief Justice will also make a special effort to reduce his absences from the Court.

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