courts be merged?
SERGEANT AT THE BAR
This column raised the issue of relationship between the Constitutional Court and the Supreme Court of Appeal during the watch of Dullah Omar over the Ministry of Justice. Now, as appeared from a report in last week’s Mail & Guardian, the new minister, Penuell Maduna is treating the issue a little more seriously than did his predecessor. For this reason it is as well to re-examine the question.
During the negotiations which led to the new constitutional dispensation it became clear that the new Constitution could not be subject to the final determination by an unreconstructed court staffed by conservative white male jurists. A new start was required to ensure that the process of judicial development of the Constitution would be legitimate in the eyes of the population. For this reason a Constitutional Court was created. The interim Constitution made this court the final arbiter of constitutional disputes. The ordinary courts were given limited constitutional jurisdiction.
The new court under the leadership of Judge Arthur Chaskalson has done a fine job. It is agreed that some of its decisions are debatable and that some of the judgments exhibit the worst kind of legal “scholarship” in which comparative description runs amok as it fills the pages of many irrelevant doctorates and even less relevant journal articles. But it has been progressive in its approach to law and principle in the reasoning it has adopted. It has placed constitutionalism firmly on the map.
Why then combine the two courts into one? A specialist Constitutional Court can continue the process of legal transformation that is mandated by the Constitution. The court represents a triumph for those who have long advocated that white males from the bar do not represent the only pool of judicial talent. It is the only court with a minority of white men, it has drawn on the talents of academics like Judges Kate O’Regan, Yvonne Mogoro and Albie Sachs and as such it represents the future. It is also argued that to merge the two courts would create political problems as to location of the combined court and as to whether the president of the Constitutional Court or the chief justice will preside.
The advocates of merger generally argue in terms of the cost of two courts of this stature. They make comparisons between the poor infrastructure of the other courts and the well-resourced Constitutional Court – which has a very light workload – and, Chief Justice Ismael Mahomed aside, a white male Supreme Court of Appeal with very few progressive lawyers.
The better argument for merger turns on principle. The 1996 Constitution made a major change to our law by giving all courts constitutional jurisdiction and extending the scope of the Bill of Rights to cover all law. Although the exact scope of the Bill of Rights remains to be determined by the Constitutional Court and has been exaggerated by the irrepressible horizontal brigade, it must be conceded that constitutional and other areas of law have been integrated to a greater extent than was the case under the Interim Constitution which introduced the idea of the two courts.
On the basis of this new model, legal integration can only be enhanced by having one tribunal which is truly the Supreme Court of Appeal. To have two such courts raises complex issues as to what is constitutional and common law (as the Louis Luyt case revealed). It retards the development of the integration of the Constitution with the remaining body of law, much of which still awaits cleansing from the stains of apartheid.
By contrast, the advocates for the status quo rely on political sensitivities about which province will “get the court”, the long tradition of the Appellate Division and questions of “Arthur v Ismail”. (As if the change has to take place before Judge Chaskalson retires upon reaching 70.)
The only principled counter to the merger proposal relates to the need to have specialist common and commercial law judges at the highest court. But merger is not incompatible with this need. The requirements for the “top jobs” can surely accommodate this need for diversity.
The minister should continue to explore this idea and be guided by principle as opposed to vested interest.