Former president Jacob Zuma in court.
‘Hard cases make bad law” is an old saying. Should courts consider the possible disastrous practical consequences of an order that results from thorough and proper constitutional and legal reasoning? Must a “safer” but legally imperfect route sometimes rather be followed?
Awaiting the supreme court of appeal judgment on former president Jacob Zuma’s parole, Mail & Guardian journalist Emsie Ferreira reminded me of this question. Might the man’s age and health and the expected reaction of his supporters outweigh a strictly legal conclusion that he should return to prison, if that is what the court arrives at?
The question is not new. I remember well the dilemma of the independent panel of so-called recognised constitutional experts when tricky questions urgently required definitive answers during tense moments in the rainy Cape Town nights of the Constitution-drafting process. A correct but insensitive answer could cause political agreements to collapse and hell to break loose.
Not only courts face this problem. Other lawyers — and probably also professionals such as doctors — who provide opinions may also have to choose between destructive truth and impure safety. But, judicial officers swear an oath to administer justice “without fear, favour or prejudice, in accordance with the Constitution and the law”. At the same time, we expect them to be in touch with and responsive to society and its problems, such as poverty, inequality and violence.
Of course, the law often not only allows for but indeed demands that the practical consequences of a judicial decision be considered. A flight risk and the safety of witnesses, the public and an accused cannot be ignored when deciding whether to grant bail to an accused awaiting trial. The fate of the small children of a single mother and the ill health and advanced age of a convicted person are legitimate concerns in consideration of a prison sentence.
Some situations are less straightforward. Five examples are mentioned.
Should a judge have the possible reaction of the media and academic authors in mind when writing a judgment? No one likes to be accused of being against the poor, women, children, or progress; and the image of the judiciary might be at stake.
The answer is simple, yet not so easily achievable. A judicial officer should neither chase fame and popularity nor be fearful of criticism. But the time when judges functioned from a cocoon on a pedestal, believed that their opinion was law and ignored or despised academic views is gone.
A responsible judge will read scholarly literature to stay informed. And, even baseless or unfair criticism may cause a judgment writer to pause to evaluate the clarity of words or formulations.
On urgent court duty in the high court, I was once approached in chambers by advocate Kemp J Kemp, who later became known for his representation of Zuma. An order was sought to attach the large passenger aircraft of Joseph Kabila, the former president of the Democratic Republic of the Congo, who allegedly owed a security company — mercenaries — a large amount of money for diamonds they had retrieved for him. It was parked at OR Tambo International Airport and the matter was urgent.
Following the correct procedures, an order was granted. Should the judge have worried about, or investigated, the possible damage to international relations? After all, around the unfortunate Omar al-Bashir saga, former president Robert Mugabe stated (with the wisdom accumulated over more than 90 years and a statesmanlike pose) that “some judges don’t like freedom fighters”.
More blood-chilling was an experience in the urgent court. A taxi war was raging over disputed routes. Previously drivers had been assassinated with AK-47s. Passengers in the crossfire mattered little. Throughout the very busy day, supporters of the two factions filled the courtroom in groups and glared at each other.
A few times the judge ruled that the matter would stand down until later, while other cases were being heard. Sometimes this actually results in litigants calming down and reaching an agreement, to the delight of the judge. A hectic urgent court is as much about careful, strategic and efficient management, as about the law.
After several noisy exits and entrances by the two factions, the case was called, well into the evening. The wait had caused the temperature to rise, rather than to subside. Then, during argument, counsel stated that if the order sought by his clients were not made, bloodshed would surely follow that same night.
The judge indicated that threats of violence were not an acceptable litigation strategy. Counsel repeated the warning. How should such a situation be handled? Ironically, the danger became irrelevant and the choice easier, when the same threat came from counsel on the other side. Damned if you do ….
Our best-known recent example were the protests, rioting and looting that followed the July 2021 imprisonment of Zuma. Rumours that something would happen went around before the constitutional court delivered its judgment and before the former president was taken to prison.
Should this possibility have been brought to the attention of the court, or taken into account by the judges, even mero motu (out of the court’s own accord)? Before the judgment, I wrote in this space that it should not. The intelligence and security agencies should have done their homework and taken the necessary measures. They did not. Destruction and death followed.
The very core of judicial independence — essential to a constitutional democracy — is at stake. For any court to be intimidated into a judgment that cannot be justified by its best efforts to ascertain and apply the Constitution and law would deeply wound the integrity of a legal system. Furthermore, the perception that scare tactics work could be even more destructive than one that bribery yields desired results.
Judicial independence requires not only freedom from improper external influences, such as government pressure, financial rewards, promises of post-retirement positions and honours, or whatever the Mafia may present. It requires both integrity and the internal strength to act according to it. Judicial officers are people with preferences, dislikes and anxieties. Thus the oath of office mentions fear even before favour and prejudice.
This again does not mean that those on the bench must be oblivious to the needs of society, or the limits of the practically doable. A court may regard it as legally justifiable to order the government to build a million houses in three months or to evict a hundred thousand illegal occupiers from private property and restrain them from jumping back over the fence as soon as night falls. But, the impossibility of compliance with the order will yield nothing but a constitutional crisis.
The last example is current … and quite relevant. Under President Cyril Ramaphosa the governing party decided that members must step aside from leadership positions when they are criminally charged. This rule must be applied strictly to the likes of Ace Magashule, so we insist.
Millions of dollars were allegedly stolen from Ramaphosa’s Phala Phala farm. Tax, exchange control and other laws might have been contravened. The presidency of the party and country is a significant leadership position. Alternative presidential hopefuls give many people cold shivers, though. An independent panel, consisting of former chief justice Sandile Ngcobo, Judge Thokozile Masipa and advocate Mahlape Sello, is investigating. Should the law or the country’s interest guide them? Are these two different, or the same?
Some weeks ago Mbekezeli Benjamin, of the advocacy group Judges Matter, wrote in this paper that it would not be prudent to include judges on this panel.
We shall see.
Johann van der Westhuizen, who assisted in drafting South Africa’s Constitution, is a retired justice of the constitutional court.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
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