/ 5 June 2008

Warning: A shift at the Constitutional Court

After the Constitutional Court judgements in the Clicks case, in which the majority set aside regulations dealing with pricing and dispensing of medicine, legal commentators raised the question as to whether a significant minority of the court — who appeared to adopt a more pro-executive position — would influence the future direction of the court.

The litigation between former spy boss Billy Masetlha and the government may have provided an answer. Masetlha sued the government, claiming that his dismissal by the president was illegal. His application before the High Court having been unsuccessful, he appealed to the Constitutional Court.

A day before the hearing, a journalist working on the case failed to gain access to the record on the court’s website. Certain documents were regarded as “secret” and the court had instructed the registrar to remove the record from its website.

This action triggered an application from Independent Newspapers for access to documents, including the “secret” documents. The minister of intelligence vigorously opposed this application. The lawyers for the newspapers then brought a further application to permit its legal team access to the material on a confidential basis so that it could prepare for its case for general access based on the principle of open justice.

The court has now disgorged itself of a lengthy judgement, which holds serious implications for a range of constitutional developments. Two aspects of the case are particularly noteworthy. The majority of the court rejected the argument that the newspapers’ lawyers were entitled to examine documents on a confidential basis to prepare for its case.

In essence Deputy Chief Justice Dikgang Moseneke held that the minister was empowered to classify documents as secret and, pursuant thereto, he had claimed that public access to these documents would compromise national security. To gain access to these documents, even for the lawyers to test the minister’s secrecy claim, “the party must display more than inquisitiveness or a desire to embark on a fishing expedition”.

In a minority judgement, Judge Zac Yacoob reveals the weakness of this logic: “Nothing is ever completely secret. Information impinging on national security is no exception. Independent Newspapers is not a busybody attempting to interfere in a case that does not concern it … [it] must be assisted in the performance of its constitutional mandate unless it is not in the interests of justice to do so … it is vital that parties to legal proceedings are able to argue their case effectively and properly. The more so if the party seeking the material does so in the valiant effort to comply with a constitutional obligation.”

That six of the judges rejected this approach and, in effect, accepted the minister’s claim without more, is compellingly indicative of executive deference. But there is more cause for concern. Prior to this case, a party which could prove that a constitutional right, to which it was entitled, had been infringed, would win its case, if the government could not prove that the infringing law of general application was justified.

Here the newspapers had shown that the restrictions on access to court documents were a breach of a right to open justice and hence the media’s right to report fully on the administration of justice. But the majority shifted legal course: suddenly there is no evidentiary onus on the government to justify the infringement of the right.

The court must simply have regard “to all factual matter and factors before it, in order to decide whether the limitation on the right … passes constitutional muster”.

So what test does the court adopt in the implementation of this exercise? In argument a number of flexible tests were offered to guide the court in its decision. The majority found no need for any such set of principles, leaving the matter entirely to the discretion of the court.

The upshot is to compromise hugely the culture of justification of the exercise of state power. There may no longer be any onus on the state to justify an infringement of a constitutional right. At the very least, the court provided no guidance to the courts of this land as to how to deal with infringements of the right to open justice.

The majority appears to accept that a cry of “national security” may be sufficient to trump a constitutional right. This approach represents a serious shift from the middle ground that had been occupied by the court towards the executive. Do not say that you have not been warned.