Over the past couple of years this column has complained about the conservative mindset that continues to dominate our courts, with the arguable exception of the Constitutional Court. A culture of obeisance to authority dominates over the demand for rational justification in all too many judgements.
Some while ago the Supreme Court of Appeal (SCA) handed down a judgement in the fishing quota case of Phambili. As noted in this column, the result may have been correct, but the reasoning smacked of an unwillingness to develop administrative law in a direction where the public could be confident that a powerful administration could be held accountable.
This week the SCA handed down judgement in the Metrorail case.
The case involved a challenge by a group of Cape commuters — some of whom had lost relatives to violence on trains or been victims themselves — to the manner in which Metrorail conducts its service. The commuters had been successful in the Cape High Court but were shown the court door in Bloemfontein.
Let’s be clear about this case. Your columnist has not read the voluminous record of about 5 000 pages; probably only the judges and counsel have accomplished this massive task.
Hence it is difficult to opine on the ultimate result, which was partly based on the view of the SCA judges that, on the papers before the court, it could not be concluded on the probabilities that Metrorail was in breach of its obligations to the public.
However, a read of the judgements of Judges Craig Howie, Tom Cloete and Piet Streicher induces grave concern. In essence, these three judges found that the statutory obligation to run a rail commuter service ”in the public interest” means no more than that Metrorail should run a train service that would be available for use by members of the public.
On this finding, the phrase, as employed in the governing statute, does not include any requirement to run a service in which regard is had for the welfare of the commuters.
As Judges Mohamed Navsa and Ian Farlam noted in a separate judgement, this approach ignores the constitutional requirement enshrined in Section 39(2) of the Constitution to interpret all legislation in accordance with the spirit and purport of the Constitution.
Given that the Constitution envisages a society based upon values of dignity, freedom and equality, and which is compassionate and caring to all its citizens, it is truly amazing that three judges can provide so narrow an interpretation of public interest.
Judges Howie and Cloete write as if there is no Constitution; Judge Streicher, who does refer to the Constitution, approaches the issue as if the Constitution is but a legal laundry list rather than the encapsulation of this society’s deepest legal commitments.
Two further aspects of all three judgements are equally disappointing. The judges appear to treat Metrorail as if it is a private organisation and therefore deserving of less judicial interference. The Constitution invites scrutiny of all power, no matter where sourced, so long as it affects the public. How a public railway service cannot be subjected to the most careful scrutiny is a question that can only be answered if one pretends that we do not have this Constitution.
Secondly, the view is taken that the doctrine of separation of powers precludes the kind of relief granted by the high court. Yet the high court seems to have required only from Metrorail that it come up with its own plan to improve safety on its service.
That form of relief appears to take account that judges should not be train inspectors. The SCA’s recourse to separation of powers and budgetary implications to justify a refusal to intervene is, again, rooted in a jurisprudence that ignores the implications of relief infused by the Constitution. Perhaps there was insufficient evidence to help the commuters in this case (and for this the SCA is obviously not to blame) but that does not excuse the kind of reasoning that so dominates these SCA judgements.
Our Constitution promised transformation and within the legal context that meant thinking about law in a totally different way from that which dominated the pre-1994 period.
The commuters may be excused for asking why so little has changed in our courts and why it is that all but one of the judges in this case were chosen by the Judicial Service Commission for office at the SCA.
Is it not time the commission started asking more searching questions about a candidate’s judicial philosophy before appointment?