Opinionista Professor Balthazar 27 February 2019

All courts, including the highest, must be subject to careful public scrutiny

We should demand of the highest court that its reasoning is impeccable and relentless. Sadly this is not always the case.

Professor Balthazar

In real life, Professor Balthazar is one South Africa's foremost legal minds. He chooses to remain anonymous, so it doesn't interfere with his daily duties.

In late 2018 an academic, Leo Boonzaier, published in the pages of the South African Law Journal what can only be described as an excoriation of the reasoning adopted in a Constitutional Court judgment. He began his article with the following sentence:

Reading recent Constitutional Court judgments can be an unpleasant task.”

He concluded his analysis of the decision in SITA v Gijima Holdings (Pty) Ltd thus:

One’s impression is of a court that not only reasons badly, but no longer cares to reason well.”

Gijima’s case turned upon whether an organ of state could invoke the provisions of the Promotion of Administrative Justice Act (PAJA) to set aside a decision to enter into an agreement with a private party. A significant part of the dispute turned on the delay before SITA sought to invoke the applicable provisions of the act, which provides that a review must be brought within 180 days from the time the person concerned was informed or became aware of the administrative action that in this case gave rise to the agreement.

The Constitutional Court held that an organ of state could not invoke the provisions of PAJA, but could seek to set aside the agreement entered into with Gijima by way of the doctrine of legality — that is that SITA exercised a power which was not conferred by law. It then held that, as the review had been brought some 22 months late, SITA could not obtain relief, even under the doctrine of legality.

It thus may be said that the correct result was reached, but as upsetting as the article is to Constitutional Court advocates, this columnist included, Boonzaier has revealed, arguably only in this decision, that the Court’s reasoning left much to be desired, for we should demand of the highest court that its reasoning is impeccable and relentless. Sadly, the decision leaves administrative law in a state of regrettable confusion.

Hard on the heels of this criticism comes a series of judgments in the case Jacobs v S. Mr Jacobs and two others were convicted of murder in the High Court on the basis of the common purpose doctrine. The conviction and sentence were confirmed on appeal by a full bench. The Supreme Court of Appeal refused leave to hear the matter, but the appellants found favour with the Constitutional Court, which heard their appeal.

More than a year later the Court disgorged itself of a series of judgments; the upshot was a 5-all draw which meant that the order of the High Court remained.

Professor Pierre de Vos has written a careful analysis of this case including a focus upon the almost unique divide in the Court. Suffice to make but a few additional points. The common purpose doctrine was used in the most pernicious way by the apartheid regime, particularly in the 1980s; hence it is understandable that members of the Constitutional Court remain cautious about its application.

However, in 2003 the Constitutional Court held in the case of Thebus and Another v S, that the doctrine of common purpose passed constitutional muster and that it was rationally connected to a lawful aim, the combating of criminal activity performed by a number of people acting together.

This decision in Thebus raises the obvious question — why did the Constitutional Court elect to hear this case? The answer given by five judges is that the possible misapplication of the common purpose doctrine is itself a constitutional issue. As the other five judges correctly observed, this is a purely factual question and therefore did not raise any constitutional issues.

The implication of the approach adopted by the five who were prepared to hear the case and set aside the conviction of murder is that a purely factual dispute in which it is contended that the trial court misapplied a concept of criminal law to the particular facts can be a constitutional issue. That in itself is a surprising outcome, but not half as legally odd as making a finding on fact without access to the full record of evidence.

It is made clear by Justice Johann Froneman that the Court did not have the record of evidence before it. Perhaps the reasoning of the trial court and the full court was poor, but without examining all the evidence, it is surely very difficult to decide whether the outcome was correct, albeit for wrong reasons.

It may be that these two judgments are exceptions to the rule and that the Court has thus been unfairly treated by the critics. But all courts, including the highest court, must be subject to careful public scrutiny; this is the democratic stuff of accountability and deliberation.

Speaking of these principles, in April the Judicial Service Commission (JSC) will be required to recommend five names to the president so that he can make two appointments to the Constitutional Court. In the light of the recent criticism of judgments of the Court, it will be extremely important that the records, jurisprudential philosophy and experience of all applicants be examined by the JSC and, as occurs in other countries, be respectfully but thoroughly examined by legal commentators for the benefit of the citizenry whom the Court serves. DM

Gallery

OUR BURNING PLANET

New poo hits the fan as chemicals company puts pressure on Durban to reopen polluted beaches

By Tony Carnie