In the year of the Constitution, SA begins moulding a Rechtstaat

Lawyers say the cases dealing with the relationship between the Constitution a nd the rest of law were the most important.Mungo Soggot reports

This was the year of the Rechtstaat, a state dominated by law: the country’s f inal Constitution was passed into law and in courts across South Africa the pr inciples it enshrines started to bite.

It was the cases which dealt with the relationship between the new Constitutio n and the rest of South African law which, according to a snap poll among lawy ers by the Mail & Guardian, were the most important of the year.

They were not the most sensational cases, although two which did dominate head lines – the trials of Vlakplaas commander Eugene de Kock and former army boss Magnus Malan – served as a neat reminder of the days when the rule of law play ed second fiddle to the rule of Pretoria.

At the top of everyone’s list was the certification of the Constitution, a cas e of monumental importance which sealed the text’s status as the highest law o f the land. It was the first time in legal history that a court was asked to c ertify a Constitution, a process which offered the country’s smaller parties a chance to ensure they had not lost out to the African National Congress durin

g the nego tiations over the final text.

The court made it clear it was not in the business of passing political judgme nt on the final text. Its job was to check that the final text complied with t he fundamental principles thrashed out at the 1993 Kempton Park negotiations. It had to do this twice, after returning the text to the Constitutional Assemb ly for a final rework.

The lawyers polled also selected two cases which focused on how the fundamenta l principles in the Constitution should apply to existing cases between citize ns. The distinction is crucial because if the law says the principles apply di rectly to private cases – as opposed to those involving the state – about 2 00 0 years of legal precedent could be toppled at a stroke.

In Du Plessis v De Klerk, the Constitutional Court decided the principles only apply indirectly in cases between citizens and the state – a decision which d

rew criticism from those anxious for a complete break from the past. By “indir ectly” the Constitutional Court meant the courts should gradually rejig privat e law in the light of the Constitution on a case-by-case basis. Directly could mean a sy

stematic upturning of all existing cases in light of the Constitution.

The decision demanded the court decipher the interim Constitution’s less-than- precise language on the matter. Professor Alfred Cockrell of the University of the Witwatersrand says the indirect approach taken will help the courts devel

op a more coherent body of private law by taking the existing law as a startin g point and then justifying it in terms of commitment to constitutional values . “This is a better approach than ditching 2 000 years of common law.”

A case which took a similar line was the decision by Judge Edwin Cameron in Ho lomisa v Argus Newspapers, involving Bantu Holomisa’s claim that Argus Newspap ers had defamed him by printing that he was directly involved in the infiltrat ion into South Africa of an Azanian People’s Liberation Army hit squad. The ju dgment is both a landmark example of reviewing the common law in the light of the Consti tution and a crucial development in local media law.

It saw Cameron depart from a string of conservative decisions on defamation by invoking the Constitution in what Cockrell says is “the most rigorous exposit

ion so far of what the Constitution means for private law disputes”.

Cameron held newspapers’ right to free speech should be protected by the Const itution even if false defamatory remarks relating to free and fair political a ctivity are published – unless the publisher acted unreasonably.

Both the Du Plessis decision and the Holomisa decision have in a sense been ov ertaken by the final Constitution, which allows the courts a more intervention ist approach when bringing the common law in line with the Constitution. Where as the Du Plessis and Holomisa decisions allow for fine-tuning of the common l aw in light of the Constitution, the final text allows courts to be more activ e. It says courts can apply rights “horizontally” in appropriate situations, depending o

n the nature of the right. “The debate is far from over,” concludes Cockrell.

Other cases which caught the eye of those polled are:

* The Appellate Division’s judgment in the McDonald’s case, which scuppered lo cal fast food entrepeneur George Sombronos’s bid to claim the hamburger giant’ s golden arch trademark for himself.

* The Constitutional Court’s rejection of the Azanian People’s Organisation’s application to the Truth and Reconciliation Commission’s power to grant amnest y to apartheid killers was also mentioned. In this case the court ruled the in terim Constitution’s provisions for the truth commission which gave it this po wer to grant amnesties were unassailable.

* The rejection of the Kwazulu-Natal provincial constitution, in which the Con stitutional Court gave its most expressive opinion about the political relatio ns between the government and the provinces.

* The recent blow to the Independent Broadcasting Authority by the Rand Suprem e Court, which declared void the authority’s decision about a licence for the buyer of privatised SABC Radio Jacaranda. There was no quorum of councillors w hen the decision was taken as councillor William Lane was on holiday in Englan d.

There were many other exciting but less important court battles which grabbed the public interest: the Micaela Hunter kidnapping case, the outcome of which – a 12-year-sentence for kidnapper Sonia Combrink – followed months of nationw ide anguish.

Then there was the “acid burn case” involving Bernadette Gibson’s fight with a negligent gynaecologist who burnt her vagina with undiluted acid. The spotlig

ht in this case focused not only on her suffering but also on the unusual hand ling of the case by her lawyer, Peter Soller, who specialises in high-profile negligence matters.

It was also a rumbustious year for the judiciary. For the first time a supreme court judge took the extraordinary step of resigning, not over principle, but

over politics. Judge Rex van Schalkwyk threw in the towel because of what he

saw as affirmative action’s erosion of the integrity of the Bench.

South Africa got its first black chief justice – Ismail Mahomed – after a camp aign to prevent his appointment by most of the country’s judges. Invited to su ggest possible successors to former chief justice Michael Corbett, about 100 j udges tried to pressure the Judicial Services Commission into selecting their man, the highly respected senior Appellate Division Judge Hennie van Heerden. They appar ently failed to register the importance of appointing Judge Mahomed, chief jus tice of Namibia, deputy president of the Constitutional Court and one of the c ountry’s most eminent human rights advocates.

The most striking aspect of the chief justiceship saga was Appellate Division Judge Joos Hefer’s call to Mahomed to do the honourable thing and withdraw fro m the race. In the 1980s, Hefer distinguished himself as a champion of the apa rtheid Emergency legislation.

Looking ahead to 1997, lawyers believe the new Labour Relations Act could gene rate an enormous amount of litigation. The courts’ reaction to the way in whic h the new Act is written – in “plain English”, not legalese – could prove espe cially interesting.

The truth commission’s decisions to grant amnesties are also expected to provi de a fresh field of litigation.

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