This column has devoted much attention to the vexed issue of legal transformation. Various views have been expressed on the topic, but there would appear to be one theme that unites these opinions.
This is that legal concepts inherited from the past must be infused, where necessary, with the content of the new; being the spirit, values and principles of the Constitution. It is important to bear this objective constantly in mind for the temptation to use the old, albeit in a new context, is invariably great.
Take the recent decision of the Supreme Court of Appeal (SCA) in the case of Minister of the Environment and Others v Phambili Fisheries (Pty) Ltd and Others.
The case dealt with the allocation by the Department of Fisheries of quotas for the fishing of hake. The complaint of the litigants Phambili and others was, in the words of Appeal Justice Peter Schutz, that: “The central aim of the chief director should have been to bring about transformation in a drastic fashion and in this he failed miserably. He should have taken much more from the big companies and he should have altogether denied rights to many other, smaller companies.”
This complaint succeeded before the Cape High Court. On appeal it came a very poor second. Without dealing with each aspect of the 50-page judgement, the critical approach of Judge Schutz, writing for a unanimous court, is that: “Judicial deference is particularly appropriate where the subject matter of an administrative action is very technical or of a kind in which a court has no particular proficiency. We cannot even pretend to have the skills and access to knowledge that is available to the chief director. It is not our task to better his allocations, unless we conclude that his decision cannot be sustained on rational grounds. That I cannot say.”
If there was any doubt about what that meant, the following conclusion destroys any room for debate: “The essential message of this judgement is that it is not the function of a court to sit in appeal on decisions to grant fishing allocations, or to constitute itself as an authority to make such allocations.”
In short, the Cape High Court had the temerity to place its judicial nose into business from which it should have shied away!
The underlying theory behind this judgement is to be found in an article by Professor Cora Hoexter, which Judge Schutz cites in support of his approach. A careful reading of Hoexter’s article reveals that she argued that judges must show a willingness to appreciate the legitimate and constitutionally — ordained province of administrative agencies. However, in examining the decision of a bureaucrat, like the director general of fisheries, a court should not return to the bad old days and use this argument as an excuse to do nothing. Rather, a court must balance the need for intervention to protect rights or interests of litigants against the consequences for trying to judicially run government and thus prevent it from fulfilling its mandated functions; hence the need for arms of government to be granted the necessary operational scope to do its job.
The problem with this latest offering of the Supreme Court of Appeal is that there is no clear recognition of the need for a balance. The court appears to take the view that the chief director knows what he is doing and that this constitutes sufficient reason not to disturb the judicial minds at the Supreme Court of Appeal. The problem is compounded by the fact that the case concerned a claim that the department was not fulfilling the constitutionally mandated objective of achieving equality in the fishing industry . That is not a matter that can simply be left to the chief director without a litigant being able to ask a court to examine whether he is living up to the mandate, albeit in a different way from that which the court might have chosen.
The SCA may well have come to the correct result in this case. But that is scarcely the point. It has now developed a set of reasons for its decision that reveal the kind of passive approach to administration that characterised our administrative law during the 1980s. That we are now governed by a democratically elected government for the first time in our history is not sufficient reason to return to the law of the past. The constitutional principle of accountability of government at all levels is too precious to be jettisoned on the alter of uncritical deference. Sadly, this appears to be the overriding implication of the judgement.