Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
22 October 2007

Sentencing case provides hints of judicial politics

South Africa’s Constitutional Court judges are famously polite and collegial. Unlike the judges of the US Supreme Court, for example, disagreements are kept civil and attempts are always made to find common ground on the cases before them. Even when the judges disagree on the outcome of a case, they usually express disagreement in exceedingly polite terms.

This is why I was struck by a sentence in the dissenting opinion of Justice Tollie Madala in the judgment of M versus The State, which was handed down late last month. He sharply in and quite sarcastically rebukes the majority in a rather uncharacteristic manner.

The Court was asked to review the four year prison sentence of the primary care giver of relatively young children in the light of section 28(2) of the Constitution which states that the child’s best interests are of paramount importance in any matter concerning the child. The accused argued that the lower courts had not sufficiently taken into account the best interest of the three children of the mother.

The mother had been convicted of fraud in 1996 and had been given a 5 year suspended sentence. But in 1999 she was again charged with fraud and committed more fraud while out on bail. Not a particularly sympathetic appellant, then.

Nevertheless, Sachs, speaking for the majority, found that the lower court had failed to sufficiently take into account the best interest of the children. After balancing the interest of the community with the interest of the accused and particularly her children, Sachs ordered that the custodial sentence be suspended and the accused be placed under correctional supervision.

Justice Madala agreed with the majority that the lower courts had not sufficiently taken into account the best interest of the children, but strongly disagreed with the majority for suspending the prison sentence. He thus stated:

Where, as is the situation with M, the primary caregiver is a recidivist who continues to commit crimes of a similar nature even whilst on bail and the children are relatively closer to their teens, it would be folly and a show of “maudlin sympathy” to impose a non-custodial sentence. In such circumstances the primary caregiver may not escape a custodial sentence.

Ouch! Strong language indeed. Justice Madala had shown before that he is rather conservative when it comes to criminal justice issues. In the case of Minister of Home Affairs v Nicro he dissented from the majority who had invalidated the provisions of the law prohibiting prisoners who had been sentenced to more than one year in prison from voting.

But the intemperate language he used in the most recent case is unusual and suggests that he thinks his fellow judges are irresponsible bleeding hearts. Just as interesting is that the most junior judge on the court, Justice Bess Nkabinda, also signed on to the minority judgment.

Judge Nkabinda, who started her career as a state legal advisor in the former Bophuthatswana has so far not shown much individual flair on the Court and court watchers have been uncertain about her politics. The latest case suggests that at least on issues of criminal justice she is one of the most conservative members of the Court.

Only time will tell how she will vote in other cases dealing with executive power or with gender issues, for example. But the latest judgment does seem to suggest that she might not be cut from the same cloth as Justice Mokgoro and Sachs – presently probably the most progressive members of the Constitutional Court.

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