Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
28 March 2007

Moseneke the man to watch on CC

The Prevention of Organised Crime Act of 1998 has been a boon for lawyers, as (not surprisingly) many individuals who have had their assets seized in terms of this act have challenged the seizure. In the past year, no less than two such cases have ended up at the Constitutional Court.

The CC handed down judgment on Monday in the second of these cases in the matter of Mohunram and Another v the National Director of Public Prosecutions and Others. As a matter of constitutional law, it is not the most riveting case, most notably because the applicants never challenged the constitutionality of the act but merely challenged the interpretation and application of the act by the NDPP and the Supreme Court of Appeal (SCA).

I do think the judgment is fascinating though, mainly because it provides some clues on the politics of Constitutional Court. This was a split decision with acting justice Belinda Van Heerden writing for the five judges in the minority. Interesting here is that Van Heerden is authoring the dissent despite being an acting justice on the Court.

She is obviously being groomed for a place on the court when Sachs, Mokgoro and O’Regan retire in 2009. On all accounts she is an able jurist with a demonic work ethic who holds strong opinions. If she makes it onto the court, she will be one of the more active members and with her formidable intellect she may have a significant influence on the jurisprudence of the Court in the years to come. Surprisingly, in this case she did not vote with the more progressive members of the Court to overturn the seizure of the property, so her politics is not as predictably progressive as that of Sachs or Mokgoro.

Once again Deputy Chief Justice Moseneke (pictured) finds himself on the side of the majority, while Chief Justice Langa signed on to the minority judgment. I have remarked before on how retired Chief Justice Chaskalson almost always found himself on the side of the majority because he had an uncanny way of persuading his colleagues to his point of view. It seems that soft-spoken and humble Chief Justice Langa does not have the same ability because this is not the first time that he has not managed to cobble together a majority for his position.

Deputy Chief Justice Moseneke is definitely emerging as a major player on the Court. He is fiercely intelligent and thoughtful, but also likeable and confident, which seems to help him in persuading other Justices to his point of view.

Lastly, it is interesting to note that this case landed up in the Constitutional Court when it really turned only on the correct interpretation of the legislation. But because section 39(2) of the Constitution states that when interpreting any legislation, every court “must promote the spirit, purport and objects of the Bill of Rights”, such a task can now be deemed a constitutional matter if the CC sees fit. Where the SCA once would have had the final say on the interpretation of any legislation, we can now not be certain of the correct interpretation until such time as the CC has spoken.

Reading the case one is struck with the way in which the Court deals with the various SCA judgments on this matter as it would any other judgments of a lower court. More evidence that we now clearly have only one highest court in this country.

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