Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
12 March 2007

CC judges clueless?

A reader takes issue with my post on the Constitutional Court’s engagement with the common law in which I wrote:

The CC quoted from a 1938 decision of the Appellate Division to demonstrate that the SCA had not understood its own common law jurisprudence – thus suggesting that the SCA judges were rather slow and uninformed.

A reader thinks I am, at the very least, unkind to the judges of the Supreme Court of Appeal and writes:

Do you really believe the SCA did not know about this judgment? Or that the SCA does not understand its own common law jurisprudence?
Considering the glaring lack of legal expertise and experience on the constitutional court — isn’t more likely that it was the Concourt which didn’t grasp the common law?
My comment was, of course, slightly tongue in cheek. Most judges on the SCA probably have an encyclopedic knowledge of the common law. But my serious point was that judges of the Constitutional Court also deal with the common law, are competent to do so, and have the final say whether they want to do so or not. In that sense, the CC really has become the most important court in South Africa.

The view that the judges of the CC have a glaring lack of expertise and experience does not seem, to me, to be born out by the facts. Because of section 39(2) of the Constitution which says that when interpreting or developing the common law, courts must take into account the values, spirit and purport of the Bill of Rights, every common law case is now potentially a constitutional case. Judges from the CC thus deal with common law issues all the time.

They also deal with many other aspects of the law, from criminal procedure to trade marks, law of contract to law of delict. I think informed readers of such judgments would be hard pressed to argue that these judges were clueless about the topics they pronounced on.

This is not surprising because judges in the CC have access to abundant resources. They only hear about 30 substantial cases a year and each judge has at least two research clerks who can ferret out any information needed in the world class library on Constitution Hill. This means they have far more time to study the law than the poor judges in the SCA and it is thus not unlikely that their support staff discovered case law unfamiliar to the overworked judges of the SCA.

Of course, lawyers who see the Constitution as a “soft law” issue, have always been suspicious of the judges of the Constitutional Court and believe that they do not really know anything about the “real law”. I cannot say whether the reader quoted above was motivated by such a suspicion, but without evidence about the ignorance of the CC judges, I am going to assume that such views are based on a formalistic understanding of the law and a suspicion of more explicitly value based legal reasoning.

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