Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
When South Africa became a democracy in 1994, the Appeal Court in Bloemfontein (now renamed the Supreme Court of Appeal) was the highest court in the land. However in the last 40 years of the apartheid era the Appeal Court (AD) was not much trusted by anyone with a progressive bone in their body. Even among traditional white liberals the AD lost its lustre during the nineteen fifties when the National Party packed an enlarged court with its yes-men to ensure that the AD would not block the moves to disenfranchise even the limited number of black South Africans who could vote in the Cape Province.
During the nineteen eighties, the AD was, to put not too fine a point on it, an almost entirely reactionary court who overturned many decisions by lower courts who – applying Administrative Law – had invalidated many draconian emergency regulations used by the government to ban, detain and censor opponents. Even after the 1996 Constitution bestowed jurisdiction regarding most constitutional issues on that court, many of its judges seemed to do whatever they could to avoid referring to the Constitution altogether, and tried to insulate the common law – which they saw as their holy domain – from the salutary influence of the Constitution.
This anti-transformative attempt to “protect” the common law from the Constitution was nipped in the bud by the Constitutional Court in the Pharmaceutical Manufacturers case. Many good appointments have also been made since to the SCA (along with a few old guard appointments) which has softened the anti-constitutional image of that court. The upshot is that the SCA now sometimes hands down decisions in the constitutional arena – the Mazibuko case dealing with water rights is a good example – that are more far reaching and progressive than the decisions of the Constitutional Court.
There still seems a to be residual reluctance at the SCA to acknowledge the full effects of section 39(2) on the common law, but this reluctance is shared by many other lawyers and judges. (Section 39(2) states that when interpreting legislation or developing the common law or customary law, judges must take into account the purport, spirit and object of the Bill of Rights.)
In the Pharmaceutical Manufacturers case the Constitutional Court rejected the SCA view that despite the Administrative Justice clause in the Constitution, common law grounds of review could still be relied upon by a litigant, and if this was done, the matter had then to be treated as a common law matter and not a constitutional matter. Justice Chaskalson wrote in that case:
I cannot accept this contention which treats the common law as a body of law separate and distinct from the Constitution. There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.
This passage, read with section 39(2), means that when dealing with almost any aspect of our law – contract, delict, company law, banking law, family law, you name it – a lawyer might be able to raise a constitutional issue, and the case might well end up in the Constitutional Court. Given this legal reality, it has long been suggested that the Constitutional Court should become the highest court for all legal matters in South Africa. At present the Constitution states that the Constitutional Court is the highest court in all constitutional matters and “may decide only constitutional matters, and issues connected with decisions on constitutional matters”.
The Constitution Seventeenth Amendment Bill, aspects of which I discussed earlier this week, now proposes that the Constitutional Court becomes the apex court of South Africa and that it should be the highest court in the Republic for any matter. The proposed amendments to section 167(3) of the Constitution, state, inter alia, that the Court may decide constitutional matters on appeal or directly and “any other matter, if the Constitutional Court grants leave to appeal that matter on the grounds that the interests of justice require that the matter be decided” by that Court.
If passed, this would mean that one would be able to approach the Constitutional Court on appeal on any matter – even if that matter does not raise any obvious constitutional issue. The Constitutional Court will have no duty to hear that matter – even if there were good prospects for success – but would be able to decide to hear the case if the Court felt that it was in the interest of justice to do so. In other words, the amendment would give the Constitutional Court a very wide discretion to hear or not to hear non-constitutional appeals from the SCA (if they believed this was in the interest of justice).
Opponents of this amendment argue that it would be a mistake to extend the jurisdiction of the Constitutional Court in this way. It is a specialised court, they argue, and its judges lack the necessary legal skills and knowledge in specialised areas of the law such as Banking Law, Company Law or Trade Mark Law. Others also argue that the Court will lose its specialised character as it will be flooded by appeals and will have no time carefully to consider important constitutional issues that may have far-reaching political consequences. This, so the argument goes, will affect the quality (and probably the length!) of Constitutional Court judgments.
I am not persuaded by these arguments for many of the reasons raised above. The Constitutional Court already has jurisdiction to deal with all aspects of our law if it touches on the Constitution. A clever lawyer with the necessary resources and a working knowledge of the Constitutional Court’s jurisprudence would be able to turn almost any case dealing with the interpretation of legislation or the consideration of the common law or the customary law into a potential constitutional matter.
The fact that this does not happen that much, must serve as a rather damning indictment of many South African lawyers who are often sadly parochial, complacent and also uninformed about the very basic architecture of constitutional adjudication. Many lawyers believe that if they specialise in commercial law, say, they do not really have to know anything about the Constitution. (There are of course notable exceptions to this generalisation.) Clients often do not realise that they should seek out lawyers who are capable of using the Constitution as this will improve the legal representation they are paying for.
But lawyers are often encouraged to think in this way by those who teach them. Although some colleagues at various law schools in South Africa who teach Private Law and Commercial Law subjects do engage energetically with the Constitution, others eschew proper engagement with the way in which the Bill of Rights may potentially affect the part of the law that they are “experts” in, often dismissing the Constitution in a lecture or two or ridiculing the Constitutional Court for allegedly messing up the magesterial common law.
If the Constitutional Court can devise an efficient system that would allow a conference of, say, 3 judges, to deal preliminary with all applications for leave to appeal in terms of section 167(3) in order to decide whether it might be in the interest of justice to hear the case, and if the Court as a whole does not take on too many cases but uses its discretionary jurisdiction wisely, I can see no reason why the Constitutional Court should not become the highest court for all matters.
The proposed section 167(3) makes clear that one would never be able to approach the Constitutional Court directly on a non-constitutional matter, so the Constitutional Court will always have the benefit of having access to a judgment of a High Court and the SCA when it considers a case. It will then have to decide whether it is in the interest of justice to interfere with the SCA judgment, which will often be the case only where the SCA had not considered the wider effects of the legal rule on ordinary human beings.
There will be advantages to such a system. It will confirm in a very tangible way that South Africa only has one system of law. It might force lawyers out of their comfort zones to engage more intelligently and in an informed manner with the Constitution as they might now consider the possibility of a further appeal to the Constitutional Court – even in so called non-constitutional matters relating to commercial law or private law – and might realise that the Constitutional Court might raise Constitutional issues which have to be answered properly if the best intersts of their clients are to be served.
Often the application of seemingly neutral legal rules – contained in legislation or in the common law or customary law – affect the human rights of individuals. A truly transformed legal system will have to engage with this reality and will have to re-consider the stubborn belief in the neutrality of legal rules. If we are going to transform the legal system to bring all legal rules in line with the spirit, purport and object of the Bill of Rights, then lawyers, legal academics and judges will all have to play their part. These proposed changes might well begin to force them to do so.BACK TO TOP