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.”
Many South African judges are notoriously prickly about the need to undergo further judicial education. Despite the fact that Parliament passed the South African Judicial Education Institute Act in 2008, the Institute has not yet trained any judges or aspirant judges and it is unclear when it will start its work in earnest. Yet most judges received their legal training before the advent of the new Constitution and there clearly is a need for further training of judicial officers to bring them up to speed with constitutional jurisprudence.
The recent High Court judgment of Hlophe JP in the case of Malachi v Cape Dance Academy and Others demonstrates the urgent need for further judicial training. Although the case was probably decided correctly, the judgment is shoddily written while the constitutional law arguments are confusing and lacking in a basic understanding of constitutional law jurisprudence.
In the case, the High Court declared invalid section 30(1) of the Magistrates Court Act and the common law rule it codified, which allows a judicial officer to order the arrest of a person when it is suspected that the person will flee in order to evade the payment of a debt. In this case Ms Tatania Malachi, an “exotic dancer” (yeah right) from that lovely country Moldova (found by some surveys to house the unhappiest citizens in the world) was arrested after she tried to return to Moldova without paying her employer R20 000 owed to him.
Given the fact that the Constitutional Court declared invalid section 65A-65M of the Magistrates Court Act which provided for the imprisonment of judgment debtors in certain circumstances, the order of invalidity will probably be confirmed by our highest court. It will be surprising, however, if the Constitutional Court endorses some of the unconvincing and badly reasoned “arguments” put forward by the High Court.
First, the High Court found that the rule violated the right to equality because the rule treats poor debtors who are unable to furnish adequate security differently from those who can furnish such security, as the former could be incarcerated while the latter will avoid incarceration. Unfortunately, the judgment inexplicably fails to refer to any Constitutional Court jurisprudence on the right to equality and fails to articulate and apply the tests set out by the Constitutional Court to determine whether an infringement of either section 9(1) or section 9(3) had occurred.
If section 30 is invalid because it infringed on section 9(1), a rationality test had to be applied – something the court did not do. If section 30 is invalid because it infringes on section 9(3), it must be shown that the discrimination was based on one of the grounds listed in section 9(3) (like race, sex, gender or sexual orientation)) or on an analogous ground not listed in section 9(3) (such as HIV status). The High Court judgment inexplicably fails to make clear on what ground the discrimination occurred and why different treatment based on one’s financial position or some other unnamed characteristic would constitute discrimination for the purposes of section 9(3).
The implications of this argument – as far as one can tell – is that any law that distinguishes between rich and poor will constitute discrimination on an analogous ground. If this argument were to be sustained it would call into question the very existence of the capitalist system in South Africa. Maybe this is not a bad thing, but then one would expect the judge at least to make a cogent argument in favor of his position.
If one of my students had written the section in the judgment on the infringement of section 9, he or she would probably be awarded a mark of about 25% for the question as it shows a complete lack of knowledge of the Constitutional Court equality jurisprudence or any appreciation for the consequences of the argument presented.
The High Court also found that the rule infringed on the right to dignity as it allows for an arbitrary deprivation of liberty and allows a defendant to be subjected to cruel and degrading treatment. The High Court unfortunately seems unaware that the Constitutional Court has stated that where another right gives effect to the demand for the respect of human dignity (in this case, section 12(1)((e), which prohibits cruel inhuman and degrading treatment) one should rely on that right and not on the right to human dignity.
In dealing with the application of the limitation clause, the High Court seems unaware that it had to apply a proportionality test, having to weigh up all the factors set out in section 36 of the Constitution to determine whether the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom. Instead the High Court discussed each of the factors mentioned in section 36 separately and failed to weigh the factors up against each other as required by the Constitutional Court jurisprudence. This completely misses the point of section 36 analysis and demonstrates a rather weird lack of insight into a fundamental aspect of Bill of Rights adjudication.
The discussion on the limitation clause is also sloppy and repetitive: at some point the same point, using exactly the same phrase, is made in subsequent paragraphs of the judgment, suggesting that the judgment was not properly edited before it was handed down.
In this case, the lack of engagement with Constitutional Court jurisprudence and the lack of understanding about constitutional principles, did not affect the outcome of the case, as the High Court reached a more or less just outcome that will prevent poor people from facing arrest when they owe money and the person to whom money is owed fears that the debtor will flee the country. It could therefore be argued that no harm came of the ignorance of the particular judge and that justice was served.
But in a constitutional state based on the Rule of Law, the legitimacy of the judiciary and the respect for the legal precedent as annunciated by higher courts suffers when lower court judges ignore or completely misconstrue the law. In the long term this could undermine the independence of the judiciary and respect for the legal system. In more difficult cases such a disregard for the law could also adversely affect litigants who may turn away from the law to rely on arbitration or self-help, which would erode respect for the rule of law.
Given the fact that many judges feel insulted when one points out that none of us are perfect and that – like the rest of us – judges are never too old to learn something new about the law, it seems to me the newly established Judicial Training Institute has its work cut out for it. If it functions effectively, it will enhance the quality of judicial decisions and with it respect for and trust in the law and our courts. This, in turn, will enhance the prestige and respect enjoyed by judges themselves. Judges therefore have a vested interest in judicial training and should embrace the new institute and its work, rather than resist it.
Of course, in the long run this will also be good for especially poor and vulnerable South Africans who may rely on the law to ensure that they are not treated unfairly by the rich and powerful in our society.BACK TO TOP