When four new judges were appointed to the Constitutional Court towards the end of 2009, the obvious question was raised about the direction of the court under its new chief justice, Sandile Ngcobo.
Was the court to become more deferential to the executive? Would it embrace more conservative jurisprudence than its predecessors?
In the past few weeks the court has handed down two Âimportant judgments that provide significant guidance in answering these questions. In Le Roux and Others v Dey the court considered the defamation claim of a deputy school principal who was portrayed in a photograph of two gay body-builders in a sexually compromised pose. A pupil at the school attached the head of Dr Louis Dey and the school principal to these bodies and placed the school badge to obscure their hands and genitals.
The image was circulated through the school. Dey, as befitted his reputation as a stern disciplinarian, was not amused. He pressed criminal charges against the pupils responsible, caused them to be severely disciplined by the school authorities and sued for defamation. He succeeded in his action in both the high court and the Supreme Court of Appeal.
The majority of the court dismissed the pupils’ appeal. Writing for the majority, acting Judge Fritz Brand found that the photo, even though it was a schoolboy prank, had the “net effect — to belittle and humiliate [Dey] as a person, to represent him as unworthy — or at least less worthy — of respect by the learners of the school, which is a classic example of defamation”.
Given that even Judge Brand is constrained to accept that the test for determining whether a publication is defamatory has an objective component — being that of the reasonable reader or observer, which is “a legal construct of an individual utilised by the court to establish meaning” — the reasonable reader of this judgment is entitled to ask whether the conclusion reached by the majority comports with the constitutional principles of diversity and freedom, or with a mind-set that children should be seen and not heard and that authority should be respected at all times.
‘Dignity and reputation’
That teachers “are entitled to protection of their dignity and reputation” is less the point than whether a reasonable constitutional citizen would not have viewed the whole business as an excessive and unreasonable response by an extremely conservative educator to a schoolboy prank.
Only judges Zak Yacoob and Thembile Skweyiya, in essence, came to this conclusion. Judges Edwin Cameron and Johan Froneman, although finding that the photo was not defamatory, held that it offended Dey’s dignity, although they accepted that to so succeed Dey had to show that a reasonable observer would consider that the picture humiliated him by rendering him the object of disrespect. The question arises: would the reasonable observer who is influenced by constitutional Âvalues have agreed that Dey had been so humiliated?
Leaving the findings aside, the most curious aspect was the following: in their judgment judges ÂCameron and Froneman noted that it cannot be actionable to refer to someone in terms of the conditions protected by the Constitution — race, religion, birth, age, gender or sexual orientation. All the judges agreed with this most sensible formulation, except Judge Mogoeng wa Mogoeng.
In what must surely be unique in South African legal history, Judge Mogoeng provides no reasons for this conclusion. This creates cause for speculation: which, if any, of the protected conditions does Judge Mogoeng consider would justify an action for defamation? In the context of this case, could it be that simply calling a person gay, triggers a possible defamation claim? As a judge of the highest court that protects and promotes our Constitution, Judge Mogoeng owes us his reasons.
The second case concerned the constitutionality of legislation that disbanded the Scorpions and created the Hawks. Only nine of the 11 judges sat and the court split five to four. The key difference between the majority and the minority turned on two related issues: whether the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime and, if so, did the impugned legislation meet this requirement.
Bill of Rights
The majority judgment of great intellectual rigour, principle and eloquence, written by Deputy Chief Justice Dikgang Moseneke and Judge Cameron, answered the first question by interpreting section 7(2) of the Constitution. This section requires the state to respect, promote and fulfil the rights in the Bill of Rights through the prism of various international agreements, signed and ratified by South Africa, which impose on it the duty to create an anticorruption unit with the necessary independence.
The majority went on to find that the absence of specially secured conditions of employment for members of the Hawks, the imposition of oversight by a ministerial committee that controls the policy guidelines, and that the power of the head of the Hawks to combat and investigate national priority offences is expressly subordinate to these guidelines were fatal to the claim that the Hawks, were an independent unit, as required by the Constitution and read with the applicable international conventions.
The minority judgment of Chief Justice Ngcobo considered that ratified international conventions were but an interpretive aid in this context, there was no requirement that the state use the best method possible as set out in the conventions, and the impugned legislation gave enough independence and structural and operational autonomy to ensure that the Hawks could perform their mandate without undue influence.
The consequence is that judges Froneman, Nkabinde and Skweyiya formed the balance of the majority whereas judges Mogoeng, Brand and Yacoob agreed with the chief justice.
Two tentative conclusions emerge: given that judges Johann van der Westhuizen, Sisi Khampepe and Chris Jafta did not sit, the divide between a manifestly deferential approach to the executive and a pro-constitutional-values approach that promotes accountability, independence and a commitment to the best of international standards is paper-thin.
Also, there are judges who hold consistently to progressive approaches (in these two cases, only Judge Skweyiya) while some appear to be socially and economically conservative, wedded to Roman Dutch law whereas also being deeply committed to protecting society against executive encroachment.
Whatever the evaluation of these two cases, we are in for a far less Âstable jurisprudence than during the past 15 years. This is cause for great concern because, as this column has discussed previously, continued compliance with key commitments of our Constitution remains uncertain.