Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Last year I attended a seminar where a judge of the Supreme Court of Appeal (SCA) inadvertently made a strong case for the merger of the SCA and the Constitutional Court. He argued quite forcefully that the courts should not be merged because the SCA deals with all aspects of law – from Company Law to Tax Law to law of Contract – and that the Constitutional Court judges just do not have the expertise about these aspects of the law to do a proper job of dealing with appeals on these matters.
As I sat there listening to the senior SCA judge, I was wondering whether he has ever read sections 8 and 39 of the Constitution. After all, section 8(1) states that the Bill of Rights applies to all law and also binds the judiciary, while section 39(2) states that when interpreting legislation, and when developing the common law or customary law every court must promote the spirit, purport and objects of the Bill of Rights.
This means that the Constitution – and not Voet or Grotius or some other weird Roman Dutch authority – now becomes the source for any development of the law. It is therefore the logic and values of the Bill of Rights – and not the logic and values of the common law – that should guide judges when they interpret or develop the law. If one grasps this, it becomes impossible to argue with a straight face that there is a bright line between “hard law” (tax law, company law, law of contract or delict) on the one hand, and the wishy-washy human rights law on the other.
Maybe some judges of the SCA (and many academics) have not yet internalised this revolutionary development in our law and may thus benefit from the wisdom of colleagues on the Constitutional Court. Sitting in the same-tea room might assist them to come to grips with the new legal order in South Africa in a way that the cold Bloemfontein air does not.
I am therefore ambivalent about the latest ANC proposals for a possible merger of the SCA and the Constitutional Court. Do we really need an SCA when all law and the doing of law are now supposed to be infused with the values of the Constitution? Is it not just an expensive extra forum for appeal for big companies with deep pockets? If we really want to provide more people with access to courts would it not be better to streamline the system and merge the two top courts in the country as the ANC is now proposing?
One argument against such a move would be that the Constitutional Court is the highest court tasked to make final decisions on extremely important issues of great political significance. It is argued that they should therefore be well-resourced and that they should be given the time to carefully consider each case before they deliver a judgment with far-reaching consequences. I agree with this line of thinking (I think!).
Another argument against a merger relates to fears about the ANC’s commitment to judicial independence. Is this proposal not just a way to pack the Constitutional Court with pro-ANC (or even worse pro-Zuma) judges? This, to my mind is not a good argument because the SCA is less transformed than the Constitutional Court and its judges therefore more likely to strike down legislation or government action than the present crop of judges on the Constitutional Court.
But we do have a problem that the ANC proposals seem to want to address, namely that ordinary citizens can hardly access the courts due to the expense. If one wants to defend one’s rights, one will often have to first go to the local High Court, then to the SCA and only then to the Constitutional Court and one will have to employ a lawyer who knows what she is doing. This will cost hundreds of thousands of Rands – which most of us do not have.
I am not sure by merging the two top courts we will solve this problem though as access to courts will remain out of reach for most South Africans: to most it will make no difference whether the legal Bill is R500 000 or R1 million.
One way of helping individuals to vindicate their rights would be through a beefed up, better resourced, Human Rights Commission with a strong legal aid component. This would require an amalgamation of the various human rights bodies like the Youth Commission, Commission for Gender Equality (CGE) and the Commission for the Promotion and Protection of the Rights of Cultural and Linguistic Communities into one super human rights commission.
The chances of this happening is rather slim, not only because of the vested interests of those who staff the useless bodies like the CGC that will resist such a move, but also because of resistance by the government. Which government wants a well-run and well-resourced human rights body taking them to court for breaching the rights of poor citizens? Most governments would be suspicious of such a body and would rather avoid being taken to court all the time for disregarding the rights of its citizens.
No wonder a proposal is made rather to merge the two top courts – its a spectacular move that appears to address the problem without actually addressing it. A perfect, cynical political move worthy of Sir Humphreys in Yes Prime Minister.BACK TO TOP