In Constitution Week, Mungo Soggot asks lawyers and academics for a scorecard on the country’s highest court
IN the two years that the Constitutional Court has sat in Braamfontein, Johannesburg, the streets of nearby Hillbrow have deteriorated into some of the nastiest stretches in the city. The court’s neighbour to the east, the Hillbrow morgue, is doing a roaring trade in corpses. Its neighbour to the south, the Civic Theatre, struggles to overcome the fears of audiences reluctant to brave the city for a night’s entertainment.
The setting is appropriate for the court that stands out as a beacon of enlightenment in a country experiencing a near collapse of the rule of law, and a consequent rise in conservatism and intolerance.
South Africa’s highest court has buried the death penalty – declaring it inconsistent with the Constitution – even though most citizens are baying for it. The court has made it clear that its task is not to reflect public opinion. In the death penalty case, its president, Judge Arthur Chaskalson, said: “If public opinion were to be decisive, there would be no need for constitutional adjudication.”
Even those judges and lawyers who criticise the court for being an elitist talking shop say its first two years in existence have proven many sceptics wrong.
“It’s a success story,” says one academic.
“It is a fantastic forum, with superb intellectual debate,” says a former clerk of the court.
When President Nelson Mandela appointed the court’s first judges, there was widespread criticism about their purported political leanings. Political commentator Steven Friedman, director of the Centre for Policy Studies, wrote at the time that the appointments constituted a coup for the African National Congress.
“The problem is not that the court is too representative, but that it is not representative at all,” Friedman said. For example, the panel that selected the judges gave Albie Sachs a punishing grilling about his failure to condemn arbitrary detention and torture during the ANC’s years in exile. And then Mandela appointed Sachs anyway.
But commentators now say the court has proved itself a model of apolitical fairness. “It has come out squeaky clean,” says one academic. An advocate says: “There is no evidence of political affiliation or bias. It is a democratic court of the highest calibre, on a par with similar courts elsewhere.”
One former clerk believes Judge Chaskalson – “a truly world-class lawyer” – is responsible for this acceptance. “He has made the rest of the legal profession sit up and take its judgments seriously.”
The court so far has concentrated on determining constitutionality of the National Party government’s legislation, such as the old Criminal Procedures Act. But the one time the court was confronted with a piece of ANC legislation – an attempt by Mandela to modify the Local Government Transition Act – it decided against the ruling party.
When it came to certifying the Constitution, the court accepted many objections raised by opposition parties and threw the text back to the Constitutional Assembly for reworking.
One advocate believes the court “has established itself as a legally cautious court, anxious to define its role within the broader political context of the separation of powers and the new legal order”.
When the court was certifying the Constitution, it stressed repeatedly that its task was not political, but merely to check that the final Constitution fitted with the principles set in the interim Constitution.
“Although cautious, it has not hesitated to lay down clearly the fact that the Constitution has marked a radical break from the past, and laid the foundation for other courts,” the advocate says.
The court has had a relatively light workload in its first two years – it has delivered 43 judgments – and some judges and advocates predict its workload will lighten further, with pressing policy issues such as the death penalty decreasing in number.
The court is considerably better equipped than the rest of South Africa’s struggling justice system. While high court judges soldier on without dictaphones, computers or research assistants, the 11 Constitutional Court judges – who receive a salary of between R350 000 and R392 000 a year – are each served by two clerks. (At the Appellate Division in Bloemfontein, only the chief justice has a researcher).
Those who were not formerly judges receive a golden handshake in the region of R1- million at the end of their seven-year term. The Justice Department had not provided the exact figure at the time of going to press. Former judges are expected to return to their posts.
Half the clerks, all of whom are recently qualified lawyers, are paid with foreign donor money. Judges with the strongest academic backgrounds are believed to make extensive use of their clerks. Others, such as Judge John Didcott, reportedly use them rarely. The Constitutional Court also has a superb library, courtesy of the Norwegian government.
Some academics and lawyers believe the the court’s judgments have been excessively erudite and intellectual. Many of its judgments are packed with detailed references to foreign case law. One Cape judge says the court, which he describes as a “super debating club”, is excessively indulgent and often “puts pen to paper for the sake of it. They often dress up policy decisions with reams of law.”
An academic who specialises in constitutional law agrees that the judgments are sometimes “over the top”, but says: “It [the court] is deciding on complex matters. It should be intellectual and thorough about it.”
It is apparently not an altogether harmonious court, which is reflected both in the dissenting judgments and in the nature and tone of the judgments.
After the court hears argument – which rarely lasts more than a day, making it a relatively cheap experience for its users – Judge Chaskalson appoints one judge to write the judgment. That judge then circulates a draft, providing the other judges the opportunity to write concurring or dissenting judgments.
Judge Didcott’s judgments are brief and to the point. Others, such as those of Judge Laurie Ackerman, are lengthier. In one case Judge Yvonne Mokgoro wrote that she had had the opportunity of reading “Judge Didcott’s admirably concise judgment”. Judge Didcott wrote two pages, Judge Mokgoro wrote 35.
Says one lawyer: “They can never get it right. You either get a two-page fiat from Judge Didcott or a 100-page treatise from Judge Ackermann …”
There is much criticism about the length of time the court takes to deliver decisions. For example, the recent judgment of State v Coetzee, in which certain provisions of the Criminal Procedure Act were ruled unconstitutional, was handed down almost a year after argument was heard.
Decisions are often delayed by haggling between the judges, who meet up to twice a week to discuss their judgments. They gather in their common room on the third floor of the modern brick Braamfontein building in which the court sits.
Apart from those meetings and coalition- building forays to the offices of their colleagues, the judges generally stick to themselves. Clerks say there is a collegiate spirit. The judges swap seats each term, in what some believe is an attempt at team-building, and in what others suspect is an attempt to assuage judges’ concerns about hierarchy.
One advocate says the court is unpredictable about which cases it chooses to hear. “One sometimes feels it hears what it wants to hear,” the advocate says.
An academic says the court often rejects applications on technicalities. “On substantive issues it is open and generous in its interpretations. But with technical matters it is tight. This makes it difficult for practitioners.”
In two years the court has undoubtedly become a prominent feature of public life. As one former clerk puts it: “I knew the court had established a presence when I heard someone at a concert at [Johannesburg’s] Zoo Lake say to a man who had taken his space: `I’ll take you to the Constitutional Court.'”