The Constitutional Court and SCA – Face off ?

The Constitutional Court and SCA – Face off ? An analysis of the conflict between the two highest Courts in SA

Where do we stand generally with the Constitution • Before discussing the actual topic and by way of an introduction we should discuss where we stand as citizens in regard to the Constitution • I am a firm believer in the constitution - we would be far worse off now if it were not for the bill of rights. The fact is that it envisages a liberal state and not one wanted by the ANC. • The ANC signed up to the constitution because the Mandela faction was dominant & because de Klerk conceded about 10 years before it was expected by them • From experience (from Land Claims litigation) and what is observed in news reports I am not convinced that the majority of the leaders of the ANC actually don’t want it and are looking for ways to dispose of it • My prediction is that the ANC will continue to white ant the constitution by leaving the form but not the substance.

The competing factors when Constitution was drawn up • New Constitutional dispensation i.e. to start again with a clean slate with a bill of rights ; • The need to keep existing order in place i.e. the common law and the concomitant precedent system ; • What to do with the existing judiciary and court system generally ;

The framers opted for a fudge although at first glance a new order was introduced • The Constitution was stated to be the supreme law of the land (Section 2) • Section 39(2) states that “when interpreting any legislation and when developing the common law …every court …must promote the spirit, purport and objects of the Bill of Rights “

Composition of Constitutional Court – How independent is it really ? • As the CC was to have so much potential power the ANC was reluctant to allow the appointment of judges to go through normal channels so a special procedure was set up in effect allowing the executive to appoint it ; • Firstly the President appoints the Chief Justice (ito Section 174(3)) after “consulting” with various bodies ; • Secondly he appoints the members of the Court from a list prepared by the Judicial Services Commission (Section 174(4)) • The President can veto any one on the list and the JSC must supplement it if there are then insufficient candidates (Section 174(4)(b) & (c))

Ultimately the Govt will get the judges it wants subject to one constraint - Credibility • The majority of the JSC are parliamentarians from the ANC ; • The conclusion is that the appointments to this Court can and are politically motivated as the independence has not been guaranteed sufficiently in my view i.e. from an appointment point of view • This does not mean that it slavishly follows the Govt but does in my view on very critical issues defer as discussed below. • Other judges are appointed by the JSC in terms of which the Government’s power is not as extensive (Section 174(7)) • International opinion is the only fact on which this government is wary of and this is why it resents the free media which expose malpractices. Unfortunately international opinion for varying reasons does not see real abuses ie appointing judges who are not up to standard and who will follow orders

THE BIG CHANGE • Originally it was envisaged that the Constitutional Court would deal with questions of constitutional invalidity while the SCA would deal with all other issues • The change adopted by the 96 Final Constitution opened the way for the CC to become master of all Why? • The bill of rights operation was made vertical which meant that it bound not only the State but laterally ie between citizens • The way was now open for the CC to adjudicate on many issues given the wide ambit of the bill of rights

In reality the old order was to an extent entrenched - Why ? • The judiciary was left intact until about 2 years ago although the SCA is still at the moment largely intact ; • Now the judiciary has been radically changed but with generally judges who are no where near the required competent ; • Nothing stopped any judge from ignoring the constitution and applying the existing law ; • This has laid the basis of the face off between the SCA and the Constitutional Court

What actually is the nature of the face off • The SCA has been more traditional in its approach to various issues • The Constitutional Court has been disappointing in various constitutional challenges • The Constitutional Court has been far more aggressive in private law in particular delict which is gratifying

The track record of CC on constitutional matters • This has been disappointing – it seems as if the Court will only declare something unconstitutional in the most obvious of cases or where is clearly a relic of the past. In a sense we have been misled as a lot of the striking down which has been ordered to unconstitutional was apartheid legislation • This latter phenomenon at least has some upside that the present government cannot use old legislation as much as it would wish although there are examples where it has. • Another disturbing trend is that where legislation is found to be unconstitutional for the Government to redraft it in similar terms and then to react it. • This was done in regard to Section 65 of the Magistrates’ Court Act i.e. those provisions relating to debt collection. It also did it in respect of so called “ harmful business practices”. • One would have thought that the CC would have had something to say about this as they must be aware of it

Floor Crossing • The Court reached its nadir in accepting legislation which is clearly unconstitutional & the most damaging to democracy i.e. the floor crossing decision i.e. UDM and others v President of RSA - 2002 11 BCLR 1179 CC • This decision was reached despite a deprecation of the concept by the same Court in the certification decision in 1996. • This was made worse when the legislation was designed in such a way as to advantage the ANC i.e. by providing that a defection had to be of at least 10% of the party which makes a defection from the ANC practically impossible but highly probable in the smaller opposition parties. This was clearly pointed out to the Court which chose to ignore it.

THE GOOD NEWS • In the field of private law and in particular in delict there have been a whole series of decisions in which the SCA has been knocked back and have yielded some exemplary decisions. • In so doing the SCA nose has been severely put out of joint which has led to much resentment in the Court. • The most heartening was the Metro Rail decision in which the CC held – reversing the SCA – that Metro Rail were responsible for the safety of their passengers. As the case was badly presented the Court was left to issue a “declarator” • Another landmark was the “Laugh it off” in which the CC held that in weighing the right to freedom of expression against the protection of the Trade Mark Act in circumstances where SAB could not prove any loss in an economic sense the right to free speech in this case parody held sway.

OTHER CASES • The Carmichele decision was another good example of the CC overturning the SCA. This has been followed by a series of cases which deal with the States vicarious liability i.e. the actions of its servants and responsibility therefor. • One must remember that these decisions are in effect redistributive i.e. we all pay for the governments mistakes and omissions • While the CC has been aggressive in regard to delict and other private law it has been timid to confront Govt on constitutionality issues • The SCA has been traditional in its approach to the private law but does not shrink from confronting Government when the need arises e.g. in respect of the latest regulations relating to health. • These are the cross currents of today's law in SA I hope that you are now a little wiser. THANK YOU

The Constitutional Court and SCA – Face off ?