Nomgcobo Jiba hugs Shaun Abrahams after his announcement in May that the high court had dismissed a DA application for an inquiry into her fitness to hold office.
The United States Supreme Court has been deeply divided for many years between liberals and conservatives. In contentious political cases, the staunchly conservative Justice Antonin Scalia, in particular, reflected this rancour by penning personal criticisms of judgments with which he disagreed.
By contrast, our Constitutional Court has been a relatively unified institution for most of its 20 years, dissent has been markedly absent and the court has continued to garner almost unqualified praise.
But now there appears to be disagreement between the justices.
While not following the robust language of Scalia, Justice Chris Jafta, in a judgment concurring with the majority in the AfriForum case (concerning street naming in Tshwane) rounded on the two justices who had disagreed, Justices Edwin Cameron and Johan Froneman, in effect accusing them of showing insensitivity to South Africa’s racist history, which lay at the heart of the proposed changes to street names. Jafta’s criticisms were targeted at his two colleagues even though they had been equally critical of AfriForum’s view of history and had ultimately based their decision on a legal principle long recognised in our law.
Two further searing judicial exchanges have taken place that afford more evidence of a clear divide. Both involve cases that rely upon the Oudekraal principle. In that case, decades had passed since the municipality had granted permission to establish a township on the Camps Bay slopes of the Table Mountain. The developer had approached the court for an order confirming its rights to develop. The court held that even though the initial decision taken almost 50 years ago by the municipality was legally invalid, it could not be ignored by the municipality, unless it was properly set aside by a court. In the circumstances however, the court refused to exercise discretion in favour of the developer.
This decision has given rise to numerous cases including the Nkandla judgment of the Constitutional Court.
Two recent decisions have revealed what the AfriForum case pointed towards — the beginning of a divide in the Constitutional Court.
In the case of Merafong City Local Muncipality v Anglogold Ashanti, the Oudekraal principle was again placed under scrutiny. Cameron, for the majority, set out what most legal commentators regard as the established position, namely that the underlying principles are that the courts’ role in determining legality is pre-eminent. Government officials or anyone else for that matter may not usurp the role by themselves pronouncing on whether decisions are unlawful and then ignoring them. A decision erroneously taken by a public authority may well have lawful consequences. The Oudekraal principle is invoked regularly in our courts; its significance concerns the principle that without court approval a public authority cannot ignore a previous decision taken by it.
So when Jafta disagreed, this created confusion, particularly when he found that the idea that a decision or act based on illegal foundations could have legal consequences was in conflict with basic legal principles; hence it was open to a party faced with a subsequent decision that was based upon the initial act, which was illegal, to challenge the second decision without having to ask a court to set aside the first decision.
This approach seems to fly directly in the face of a number of decisions that had amplified on the Oudekraal principle.
Nonetheless the same division appeared in the next case: Department of Transport vs Tashima. This case involved the extension of a contract by a government department, which decision to extend was based on an invalid legal basis. Although the court held that the extension decision could be set aside, the court divided in its approach. The majority held that the extension decision would remain valid until set aside by a court but then permitted the department a retroactive challenge to do just that. Jafta, following on his judgment in Merafong, again disagreed vigorously, finding that the decision to extend the contract could be set aside without any review of the initial illegal decision.
When Froneman pointed out in a concurring judgment that the approach adopted by Jafta was contrary to precedent, Justice Ray Zondo referred to the majority’s judgment in Maphango and Others v Aengus Lifestyle Properties, which granted relief to a tenant although it was not asked for when the tenant litigated against his landlord.Zondo then said: “The author of the fourth judgment (Froneman) did not on that occasion emphasise the importance of respecting precedent. Instead, he was party to the majority judgment.”
Although, in addition, Zondo wrote a separate judgment, that judgment did not acknowledge the precedent of Bel Porto School Governing Body and Others v Premier of the Western Cape Province and Another (which held that a court could not grant a party relief not sought by that party) nor did it say that Bel Porto was distinguishable or was not binding.
In other words, it did not advance any of the grounds recognised in law as justifying not following a precedent. In short, Zondo accused his colleague of complaining about the exact disregard of precedent that he had on previous occasions exhibited.
But this dispute is not merely a technical one: Jafta and Zondo appear to prefer to give the executive more latitude than do some of their colleagues when a public authority makes an illegal decision.
In turn, this hints at an even broader issue, that is a battle for the intellectual leadership of the Constitutional Court concerning the level of scrutiny that should be exercised by the court over executive action.
It may not be the best of times for the court to lose its unity, given the critical role it is continually asked to play in the politics of this country.