The idea that the Constitutional Court isn’t what it used to be is an idea only slightly younger than the court itself. Legal communities love generating mythologies and our dominant tale is that Constitution Hill was born in original perfection and, although we professed a commitment to transformative constitutionalism, our lodestar was always going to be the first court – the lofty heights of that pinnacle of progressive virtue, that Mount Olympus of justice and reason. The foundational myth is an enduring one. But the contemporary context is one of a rapidly transforming legal sector and this is sometimes difficult to square with our long-standing traditions of sanctimonious and condescending critique.

In recent weeks, I have encountered at least two anecdotes which suggest to me that the ferociousness of the criticisms is intensifying, that the underlying motivations are overstated and that we need to be wary of our own excesses before we make some of the important decisions that lie ahead.

About a month ago I received an e-mail headlined “YIKES”. A friend was drawing my attention to an article recently published in the South African Law Journal (SALJ) criticising the Constitutional Court’s decision in Sita v Gijima. Before even opening the article I thought, “Good Lord, not another Gijima think-piece”.

In the world of the legal commentariat, this decision heralds the beginning of an era of lawlessness and unreason. It is a favourite data-point of those who believe that the recent court has abandoned adherence to precedent and its commitment to a strict legal method. I thus didn’t expect this article to be especially groundbreaking in its legal insights but it did make a lasting impression. The author’s note begins by thanking some lawyers “whose exceptionally generous and insightful comments” strengthened the article, before the customary “I am alone responsible for its errors and excesses”. Excesses is a good word.

The article, in its abstract, bemoans “a worrying general decline in the quality of the Constitutional Court’s judgments”. The opening sentence says “reading recent judgments of the Constitutional Court can be a rather unpleasant task”.

It concludes that “Gijima, at any rate, seems to have left Court-watchers reeling. Its disregard of elementary rationality and its abandonment of fidelity to the legal sources are hard to overstate. One’s impression is of a court that not only reasons badly, but no longer cares to reason well. Only the naïve would expect such a court to pay attention to academic criticism – its judgment in Gijima shows that it disregards even the Constitution and its own decisions, after all – but I thought it time to put the point on record”.

Now Gijima may well be a terrible decision. But I have always found these critiques tiresome. The decision was a unanimous one – even Justice Cameron had signed onto this position that his recent former clerk was now portraying as essentially thoughtless. But Gijima is also a short decision (I believe this SALJ article is itself longer) and its application has a narrow scope; so I have always seriously doubted that it fundamentally flipped administrative law on its head.

It is fair to suggest that courts make incorrect decisions sometimes, but this article I thought most notable in that it was, predominantly, not about administrative law, but rather about the author and his opinion on the Court. Throughout the piece, there are descriptions of “exasperation, dismay, anger even”. Anger even!

It continues… “To private lawyers, to be sure, it has long been evident that the Court lacks sufficient evidence in their field.”

Accusations of the court being “glib” and its reasoning being “slapdash” abound. When I read this article a month ago, I remarked to my friend that I had underestimated how unserious a legal publication the SALJ has become, or at least what an appetite for grandiosity the editors have. But I filed the article away and hoped not to think about it again. Then a few days ago Daily Maverick’s anonymous columnist Professor Balthazar wrote an opinion piece which relies on this article to join the pile-on which was initiated by UCT Professor Pierre De Vos.

Shane Jacobs

De Vos’ article titled “Mistakes Tarnish the Reputation of our highest Court” was written in response to a decision where the Court had split 5-5, thus leaving the holding of the High Court in place, because the Chief Justice had not been present when the case was heard. De Vos begins with a sentence which I found deeply intriguing:

“South Africa’s Constitutional Court, and the jurisprudence emanating from that court, remain (with some exceptions) well-regarded among progressive legal scholars and judges in South Africa and in many other parts of the world.”

One has to wonder… Who are these progressive legal scholars and judges? And what does that word even mean? De Vos is Deputy Dean of the Law Faculty at the University of Cape Town, so one might assume that he is talking about his colleagues. So, the progressive judge must be… Dennis Davis? Okay. But then does “progressive scholars” include Richard Calland who wrote: “A Chief Justice Who Doesn’t Write Appointed by a President Who Doesn’t Read”? It’s all quite confusing. But do UCT professors really think their informally conferred approval is the litmus test for a successful Constitutional Court?

The article is revealing. I have previously written about the importance of filling the vacancies on the Constitutional Court, and some of the arguments are similar, but I was startled by the way De Vos seems to scapegoat the four acting Justices who had formed part of the quorum on a decision with which he disagreed. He states:

“This instability in the personnel of the Court is a real problem for the quality of the work done by our highest court. This is illustrated by the embarrassing mistake made by the Constitutional Court in a 2017 case, which the litigants in Jacobs attempted to use to get the Constitutional Court to hear the case.”

De Vos holding the acting justices blameworthy for the Jacobs decision is confusing for a number of reasons. These include the facts that the position he disagrees with had two judgments, each written by a permanent judge, the four acting judges were divided equally and the judgment upholding his side was written by acting Justice Goliath. He quotes the minority opinion (only two other judges signed on) of Justice Froneman and doesn’t even mention the Goliath opinion it is concurring in. This reminded me of my least favourite part of the university, where some professors would tell us that “only the Cameron opinion is important” and the holding of the court doesn’t matter.

De Vos even goes as far as to mention that the Constitution requires eight judges to form a quorum, but only six permanent judges adjudicated Shane Jacobs – as if the votes of acting judges were not real. I really battle to understand what motivated this line of attack, but I thought it all unseemly. Unseemly because it is not critiquing a judge’s reasoning for a decision; it is highlighting four professionals and saying that their lack of quality means that any erroneous decision rendered by the court would be their fault.

The worst part of the De Vos piece is that it admits to being entirely unsubstantive. The core of the court’s split in Shane Jacobs was jurisprudential (the judges have a different test for when the court’s jurisdiction is triggered) and De Vos’ focus on a scrivener’s error in a footnote from two years ago obscures that important reality. In making this admission, De Vos states that:

“… [i]t is important to note here that Deputy Chief Justice Zondo disagreed with the conclusion that Makhubela was clearly wrongly decided. It is beyond the scope of this article to discuss his highly technical arguments here…”

It is not, however, beyond the scope of the article to repeatedly insult the competence of the Bench. The word embarrassing appears five times in the relatively short piece. We are just supposed to believe that five judges of the Constitutional Court should be embarrassed because they disagreed with Justice Johan Froneman and Pierre de Vos does not respect their intellect.

A more thoughtful critique of the Shane Jacobs decision was recently written by my friend and former colleague Brynne Guthrie. But people need to calm down about the Jacobs decision. The right they claim was denied in this case is fictitious. There is no such thing as a right of access to justice that includes Constitutional Court jurisprudence being generated at your instance. The job of the court is not to resolve the legal disputes of particular individuals. The court only hears a tiny fraction of the applications before it and only has jurisdiction where a case raises a constitutional issue or has legal implications of general public importance. Brynne has a clear grasp of this but still argues that the applicants in Jacobs had a right to not have their time wasted. But why?

Nobody forces you to apply to the Constitutional Court. The administration of justice would be tremendously improved if fewer people felt this entitlement. And let’s be real: these men were convicted of murder. Spending one year litigating on the chance that the Constitutional Court may overturn your verdict is not a waste of time. The court did give them a day in Court, and one year is very fast turnaround time. And there is no such thing as a rule that decisions based on jurisdiction should be made at the preliminary applications stage. Such a rule would be impracticable and serve no purpose.

This is evidenced by the fact that on 2 August the court issued the following directions:

“The parties are directed to file written submissions of no more than 15 pages on:  a) whether the doctrine of common purpose was correctly applied by the trial Court and the Full Court in this matter. b) whether, if the doctrine of common purpose was not correctly applied, that would give this Court jurisdiction in this matter.”

This is precisely the issue that was argued in court. And the applicants only persuaded five judges their case was justiciable. They lost on the ordinary operation of the legal system. Nothing less. Nothing more. It also bears mentioning that if Justice Froneman’s side had prevailed and the court had decided it did not have jurisdiction, the case would have been thrown out at no less cost to the applicants. It is, of course, not ideal for an apex court to be evenly divided, but it is also not unheard of. This is why there is nothing in the rules prohibiting an even number of judges sitting on the bench, nor are there any procedures for breaking a tie.

In Washington, 4-4 splits happen with increasing frequency. I say that only slightly in jest. There is also no such thing as a presumption in favour of courts developing jurisprudence rapidly. I would think principles of constitutional law counsel in favour of the opposite belief. There is some disagreement to be had here, but people who will seize any and every opportunity to attack the Chief Justice need to find a more creative basis, because pretending Shane Jacobs was some sort of travesty of justice is, to my mind, woefully shallow.

Responsible voice

I hope my digression into the Jacobs decision doesn’t render this piece completely unreadable. But I have spent a lot of time thinking about the line: “Only the naïve would expect such a court to pay attention to academic criticism.” If that is true, then what is the purpose of legal academia? Why should anyone fund our doctorates? Is it not possible, perhaps, that the South African legal academy is so preoccupied with establishing that judges can be rubbished without consequence, that we ignore the corresponding responsibility to speak in a voice which is deserving of respect and influence? Is that not the point of being tied to a profession? We have always known that lawyers skewer each other over wine at the dinner table. But when did it become the norm to publish things like “so-and-so judge is difficult to read” in the nation’s most popular legal journal? And the condescension and vague “the court just isn’t the same any more” points used to be made with more subtlety. Because the obvious subtext is that the Chaskalson Court was majority-white, and that’s the major difference in the trend of recent appointments.

At some point, the legal academy just started saying the quiet parts out loud and making very clear that these are considerations that they want to weigh heavily on the process when the JSC makes its next few appointments to the bench. These views are not representative of the majority of South African lawyers. And it’s time we started pushing back, because irresponsible speech may well lead to the courts taking all academic and public discourse less seriously. DM

Elisha is a South African lawyer currently working and teaching in Seychelles. He writes opinions in his personal capacity and against his better judgment. Elisha frequently revises his opinions on most topics and thus he asks that you avoid quoting him. He accepts hate-mail on Twitter.com at @Eli_Kunene.