SERJEANT AT THE BAR
As the first year of the new century has come to an end, it is an opportune time to prepare a report card on our constitutional state.
In general terms much progress has been made over the past seven years. The Constitutional Court is now an established institution and its president, Judge Arthur Chaskalson, has become the leader of the judiciary, with his appointment as chief justice. Notwithstanding his admirable reticence to analyse the implications of this appointment, Chaskalson’s elevation confirms that the highest court in the land is now situated in Braamfontein. The Constitution now embraces our entire hierarchy of courts and the jurisprudential chess game played by the Supreme Court of Appeal so manifestly in the Bogoshi case to save its own turf will be seen no more.
In that case the court had to decide whether the defence of public interest against a defamation claim could succeed without the defendant having to prove the prima facie truth of the published statement. Suddenly the court overturned notorious decisions that insisted upon proof of truth. It claimed that the common law promoted press freedom without any influence of the Constitution. It was as if Judge Lewis Carroll had written the judgement.
The government operates under the rule of the Constitution for the first time in this country’s history. Judgements, even when adverse to government, are accepted in good grace. The old Nat tactic of threatening the Bench when it found against government is no longer part of our political discourse.
Turning to 2001 in particular, the two apex courts deserve good marks; a B plus. The Constitutional Court has begun to give substance to the Constitution’s promise of socio economic rights, in particular housing. In both the Grootboom and Kyalami Residents Association cases the court has shown that these rights can bring meaningful relief to the poorest in our country.
In the Carmichele case it has laid down that the common law must be developed in the image of the values of the Constitution, even though the judgement appears to be a committee effort, given its lack of precision and clarity. By finding that the common law could impose a duty on police and prosecutors to protect the freedom and security of women, the court gave hope to litigants such as Alix Carmichele, who were viciously assaulted in circumstances that might have been prevented by adequate policing and prosecution of violent criminals .
The Supreme Court of Appeal’s output has shown the benefit of recent appointments. In Eastern Cape Government v Ngxuza the court eloquently voiced its disapproval at the way the provincial government had refused to assist its poorest, who were in desperate need of disability grants. It also extended the range of persons who can approach the court for relief and simultaneously rebuked the provincial government for its callous disregard of the principle of accountability.
More recently it delivered a judgement that struck a delicate balance between the need for a firm judicial stance against rape without jettisoning the principles of dignity and proportionality that lie at the heart of our Constitution. Both courts have admirably resisted the temptation to follow the “hang ’em high and to hell with the Constitution” brigade.
Unfortunately, after the good start during the first few years of our Constitution, the government’s performance this year must be cause for some concern. Its report card should reflect no more than a C (on a generous mark).
Unless there is a sudden change of mind, the Constitution and the Municipal Structures Act will be expediently altered to suit the African National Congress/New National Party pact. A report in this newspaper revealed that the Human Rights Commission came under the influence of the executive to withdraw from the Treatment Action Campaign (TAC) challenge to the government’s Aids policy. If true, this a most serious interference in the business of one of the constitutionally independent watchdogs.
There has been more than one judgement which has called into question the conduct of the prosecution agencies. In one case the deputy chief of the agency was heavily censored by the court. Minister of Safety and Security Steve Tshwete recently admitted his mistake in accusing prominent people of plotting to remove the president … yet no one even raises the question of his resignation in the light of such irresponsible conduct.
The manner in which both the executive and Parliament have dealt with the arms deal has raised many questions about regard for institutional independence.
As we start the new year, the warning signs flash. Perhaps the biggest reason for concern is the way the courts have again become a site for political struggle. How else does one begin to understand the recent TAC challenge to an ANC government? If similar challenges to the government are brought this year, the growth of our constitutional state may well come under serious strain. After all, governments generally do not like being hauled before courts to be told that their social policies are unconstitutional. Given our short experience with constitutionalism and the government’s performance last year, the next 12 months may well prove to be important in the future development of constitutional democracy in this country.