A serious slap in the face

Pity the judges of the Supreme Court of Appeal (SCA). Fifteen years ago this court — then led by the chief justice — was the highest court of appeal in South Africa. The prestige and standing of the judges serving on this court were unchallenged among the majority of influential South African lawyers and judges, and academics pored over their decisions and wrote learned articles about their decisions.

Today those judges languish in relative obscurity in sleepy Bloemfontein while the chief justice and his fellow justices on the Constitutional Court in Braamfontein have the final say on any constitutional matter. Moreover, the Constitutional Court has the power to decide what constitutes a ”constitutional issue” and whether the ”interest of justice” requires it to hear a case.

Now the judges of the SCA face a further puzzling downgrading of their role and status. According to the resolution on the transformation of the judiciary adopted by the ANC in Polokwane, the Constitutional Court must become the final court of appeal in both constitutional and non-constitutional matters, leaving the SCA as an intermediary court to hear appeals from high courts.

If implemented, this would achieve exactly the opposite effect of what is purportedly envisaged by the ANC resolution because it would hamper, rather than speed up, transformation of the judiciary.

It is true that there is an urgent need, as the ANC resolution makes clear, to streamline the South African judicial system and to enhance access to courts for poor people. There is also an urgent need to speed up judicial transformation through the appropriate education of judicial officers to ensure that the values of the Constitution permeate the work done by all judges in all courts in South Africa.

Unfortunately the ANC proposal seems more driven by malice towards the SCA — which is perceived by some in the ANC to be less in tune with the values of the Constitution and (perhaps more importantly) less in tune with the wishes of the ANC government — than with enhancing access to justice.

The Constitutional Court is a specialised court and only hears a modest amount of cases — on average about 30 substantive cases a year — which means that it is well placed to produce thoughtful judgements of the highest calibre aimed at inspiring lower courts with its transformative vision.

Because it can decide whether a case raises a constitutional matter and because it has interpreted this power expansively, the Constitutional Court already hears many cases not traditionally thought of as constitutional in nature. It takes on these cases, dealing with the development of the common law and the interpretation on legislation, where it feels it would have an impact in ensuring that the values of the Bill of Rights infuse the interpretation of the common law and legislation in lower courts.

On the other hand, the SCA hears hundreds of cases a year — often dealing with highly technical issues — and ensures that litigants get a final answer to their legal disputes without having to incur the further cost and delays associated with an appeal to the Constitutional Court.

Now the ANC wants to give those litigants with deep pockets the right to appeal to the Constitutional Court and, although the latter court will retain the right to decide to hear the case or not, it will invariably be inundated with appeals, often dealing with issues that have nothing to do with the transformative values of the Constitution.

This will have the effect of dragging out litigation and potentially making it far more expensive. It will also clog the Constitutional Court roll and will make it difficult for this court — which is charged with deciding on important matters such as whether legislation passed by Parliament or the actions of the president are unconstitutional and invalid — to fulfil its transformative role.

I suspect it will ultimately have the effect of lowering the quality of judgements in the Constitutional Court, which will have less time to reflect on the truly pressing question of how the values of the Bill of Rights should be infused in the existing common law.

Instead of advancing the transformation of the judiciary and the legal system, it might well have the opposite effect. On the other hand, it will constitute a serious slap in the face of the judges of the SCA and will hearten those in the ANC who dislike this court for not being sufficiently in tune with the needs and requirements of the ”national democratic revolution” and thus of the ANC politicians.

Professor Pierre de Vos specialises in constitutional law at the University of Western Cape

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