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It’s 50-50: The ConCourt must avoid taking chances with justice

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Brynne Guthrie is a (sort of) lawyer who focuses on human rights, legislation drafting and international law. She is currently completing a policy fellowship at ALT Advisory in Johannesburg. Brynne was previously a Commonwealth Scholar at the London School of Economics and Political Science and clerked at the Constitutional Court in 2018.

On Thursday, 14 February 2019, the Constitutional Court handed down its judgment in Jacobs v State, a criminal matter about the doctrine of common purpose. Oral arguments were presented to the court nearly a year ago. While the doctrine of common purpose is not itself uncontroversial, it is not the most controversial aspect of this case: the court was unable to reach a majority decision resulting in a default outcome. In effect, no outcome at all.

Ten judges sat on the bench that heard Jacobs vs State. Of them, five believed that the matter did not raise a constitutional issue or an arguable point of law of general public importance, and thus did not engage the court’s jurisdiction. The other five judges believed that the matter raised a constitutional issue and that the appeal to the Constitutional Court should have succeeded to some extent. In the opening paragraphs, written on behalf of the court in general, the disagreement across the bench is summarised and it is clarified that the judgment of the Full Court of the High Court stands as a result of the court being unable to arrive at a majority decision.

The judgment has received little attention despite raising concerning questions about the state of the Constitutional Court. One article seems to blame the outcome of the case on the Chief Justice’s travel engagements that keep him away from court hearings and an unstable jurisprudence created by having multiple acting judges on the bench in recent years. Both may be reasonable conclusions and independently raise interesting issues, but they may not fully answer the questions of why Jacobs yielded such an outcome, and how split benches may be avoided in future.

At the Constitutional Court, Jacobs and his co-accused argued that the Full Bench of the High Court had incorrectly applied the doctrine of common purpose, without illustrating that the legal requirements for a guilty conviction in terms of this doctrine had been met. It was further contended that because the requirements had not been established, their conviction for murder and subsequent imprisonment amounted to an arbitrary deprivation of liberty in violation of the Constitution. The court was unable to agree on whether these arguments truly raised constitutional issues which engaged the court’s jurisdiction.

Since the 17th Amendment of the Constitution in 2014, the jurisdiction of the Constitutional Court has been significantly broadened. That amendment made the court the highest court of appeal not just for constitutional issues, but also for all cases which raise an arguable point of law of general public importance which the court ought to consider. Surprisingly, it is not the extended jurisdiction that has caused controversy here, but instead the exercise of the court’s jurisdiction over constitutional issues which it has always possessed.

Over the past 10 years, the number of applications brought to the Constitutional Court each year has drastically increased. In 2013, the court received around 175 new applications and this number, in the wake of the 17th Amendment, grew to roughly 230 in 2014. In 2018, the court received 338 new applications. Often, when applying to the Constitutional Court for a hearing, applicants argue that their dispute raises a constitutional issue and, in the alternative, an arguable point of law. The 17th Amendment opened the door for this argument and has, perhaps, led to a public perception that the Constitutional Court has taken on the role that used to be fulfilled by the Supreme Court of Appeal as the highest appellate court for all matters. However, the amendment is not the sole reason for the spike in the number of applications referred to the court. Instead, it may be attributed to the permeation of constitutional principles into every sphere of law.

It is perhaps inevitable that judges disagree on the scope of the court’s jurisdiction. The judges of the Constitutional Court must now consider and evaluate every new application in light of the fact that issues which would not have previously been thought to raise constitutional issues now do because of the way that constitutional principles have been accepted, adapted and infused into our law. This may require the re-evaluation of decisions previously taken, as happened in this case where much of the dispute centred around whether the decision taken in Makhubela v S was in line with the court’s previous jurisprudence on jurisdiction. What is clear is the court’s uncertainty and disagreement about the breadth of the meaning that should be given to the term “constitutional issue”. This has an impact upon the right of access to justice for all applicants to the court.

Showing that a case engages the court’s jurisdiction is the first hurdle that any applicant must overcome when approaching the Constitutional Court. It is the basis upon which all applicants seek redress and justice. When one speaks of access to justice, one speaks of the constitutionally enshrined right of litigants to access legal redress through formal or informal institutions. Access must be effective, and this places an obligation on these institutions to ensure that when applicants approach them, they are either assisted or informed that the case falls outside of the institution’s mandate as quickly as possible to avoid uncertainty, unnecessary expenses and prolonged anguish. Where a litigant is informed that their matter has been set down for oral argument and that they are consequently required to submit written arguments and brief an advocate to represent them, this results in incurring significant costs.

It also, at least on some level, creates the expectation that the court is going to make important pronouncements which, even if not in the applicant’s favour, will impact society generally. This is particularly true when cases come before the Constitutional Court which is perceived as the ultimate protector of rights. When cases are then dismissed after oral argument because they do not engage the court’s jurisdiction, one must wonder whether the resources expended were worth it. Could the court not have spared these by deciding the jurisdictional question at the new application evaluation stage?

But perhaps these quick decisions are not possible. Considering the obvious disagreement between the judges about the meaning of a “constitutional issue” and the new difficulties raised by traditionally non-constitutional matters being argued using the principles espoused by the Constitution, written and oral arguments may sometimes be necessary to determine the jurisdictional question. This appears to have been the case in Jacobs as evinced by the split decision.

But then the least the court can do is ensure that the resources expended on a hearing result in a reasoned, binding outcome for Jacobs and the other appellants. This would fulfil the inherent duty placed upon the court by section 167(3)(c) of the Constitution to make a final decision about whether a matter falls within its jurisdiction.

An equal split like the one in Jacobs means that the case is treated as if it had not been heard at all and the decision of the lower court remains binding. The finding made by the court in this case was handed down nearly a year after the hearing; came after oral arguments by an advocate; and required at least three separate sets of written submissions from the parties. And no result. Can the court say that the spirit of our Constitution was upheld? Can the court say that it gave Mr Jacobs and the other appellants justice or that its judgment justified the expenses incurred by them and by the state?

So, what can be done? First, it may be time for the judges to discuss the way that the interpretation of jurisdiction has changed, or needs to change, instead of waiting for another case to highlight their division on this issue. Delineating jurisdiction casuistically has not worked and has led to inconsistency and confusion.

For example, the minority judgment penned by Zondo DCJ in Booysen v Minister of Safety and Security finds that the court has jurisdiction for very similar public policy reasons to the ones the judge relies on in his judgment in Jacobs. In Booysen, none of the other judges concurred with the minority, however they seemed to be persuaded by similar reasoning just a few months later in Jacobs. Why? Is it simply a matter of a different factual matrix leading them to a different result or is there something more concrete that, if discussed, might shed light on the jurisdictional question for future cases?

Considering that the court is enjoined to decide cases on the basis of the precedents created by judgments that have come before, the court’s position on jurisdiction is unclear. The Constitution, in section 173, empowers the court to regulate its own procedure.

With that in mind, I suggest two approaches. The first is to consider and perhaps publish a practice directive on jurisdiction. This would mean that while cases would still be decided on a case-by-case basis, there would be greater consensus amongst judges and clarity for litigants from the get-go. The second would be to consider how the court can use its Constitutional powers to make any order that is just and equitable (the court’s magic wand) to ensure that an outcome like the one in Jacobs does not occur again.

At the very least, however, given that there is evidently disagreement around jurisdiction, which hampers the ability of the court to effectively provide access to justice, the court must not sit in even numbers. Of the 28 matters that were heard in 2018 and have subsequently had judgment handed down, more than half were heard by an even number of judges. It feels as if it was only a matter of time before a judgment split down the middle. The court cannot justify setting cases down and expecting parties to pay exorbitant fees and risk having no result to show for it, especially not when they have the inherent duty to make final decisions.

Why then, has the court consistently taken this risk over the past few terms? There are a couple of reasons. The first has to do with the appointment of Deputy Chief Justice Zondo as the Chairperson of the Commission of Inquiry into State Capture. This has meant that at times when the Commission is in session, it is impossible for Zondo DCJ to sit in Constitutional Court hearings. The third and fourth terms of last year are evidence of this.

Yet no judge was appointed to act in the DCJ’s position. (Practically, this would have involved appointing one of the permanent Justices as Acting DCJ and appointing an acting judge from another bench to fill that permanent judge’s position). The number of Acting Justices on the bench of late has been a subject of controversy and adding another would certainly not have garnered public support.

Further, it has not always been the DCJ’s absence which led to the even-numbered benches. The Chief Justice as part of his duties as the Head of the Office of the Chief Justice travels regularly, sometimes on hearing days. The Chief Justice has made it clear that he is not willing to shirk the representative and administrative duties placed upon him in favour of sitting in more hearings. Whether this is the ideal role for a Chief Justice to fulfil is a debate for another time, it is simply a reality that many cases would still have been heard by a 10-Justice bench even with an Acting DCJ or an ever-present Chief Justice.

With the appointment of new permanent Justices forthcoming, the appointment of an Acting DCJ becomes more palatable, particularly considering that there are at least two years of work ahead for the Commission on State Capture. However, it seems unlikely that the new role assigned to the Chief Justice as head of the Office of the Chief Justice will be modified.

As such, a creative solution may be in order. This suggestion finds its origins in the American system. The American judiciary allows for judges who were not present at the hearing of the oral arguments to continue to remain on the coram of cases to avoid the court sitting as an even number. Judges reach a decision based on the parties’ papers and recordings of the hearing. Sometimes they prepare questions for their colleagues to raise during oral argument on their behalf. With advances in technology, there is no reason why this should be the end of the process. The possibility of remotely hearing cases or interacting in real time text with live streams is not out of the question. These may not fit into the traditional aesthetics of the court, but a consistently even-numbered bench is a unique problem that needs a unique solution.

The Constitutional Court is clearly grappling with challenges around the issue of jurisdiction. Because jurisdiction is at the base of all the work that the court does, disagreements potentially have a massive impact on the ability of litigants to access justice that is effective and efficient. Because the court is facing such a foundational struggle, it is crucial that it sits with a fully constituted 11-judge bench.

A split down the middle, like the one we saw in Jacobs, only exacerbates the injustice felt by litigants who apply for a hearing and after long waits and wasted resources are told that their case cannot be heard by the court. It is not useful to attempt to determine who is to blame for the split, but it is important to determine why it shouldn’t be allowed to happen and how to avoid similar events in the future. DM

Disclaimer: Brynne Guthrie worked as a clerk at the Constitutional Court for the duration of 2018. Guthrie currently works as a Policy Fellow at ALT Advisory. Guthrie believes that critical reflection is a crucial part of ensuring that the court can continue its legacy of defending the Constitution. The views expressed in this opinion piece are Guthrie’s own and based on publicly available information.

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