The Constitutional Justice Report: Judging The Judges? Part I - Context And Main Findings

9 February 2018

This purpose of the Report – commissioned in 2012 – was a review of judicial decisions of the Constitutional Court and Supreme Court of Appeal with a view to “locat[ing] our jurisprudence within the development state”, “assess[ing]…the capacity of the state…to implement courts’ decisions” and “advanc[ing] the transformation of the administration of justice with regard to access to justice, development of common law and customary law, and costs of litigation”.[i]

The context in which the Report was commissioned is significant. In 2012, issues relating to the judiciary were at the front and centre of the national discourse, spurred on by questionable comments by members of the executive branch of government and fervent responses from, amongst others, members of the judiciary.

Part I of this brief will sketch out the background to the commissioning of the Report and provide a high-level overview of its findings.

Part II will analyse those findings, consider the Minister’s delay in releasing the Report and the costs incurred in its creation, and highlight concerns about how the executive might implement the Report’s findings.

Legal and political climate at the time of commission

In February 2012, the President stated in an interview that the executive wished to review the powers of the judiciary[ii]. His explanation for this desire was – controversially and curiously - that the Constitutional Court often produces dissenting judgments and that at times the “dissenting [judgment] has more logic than the one that enjoyed the majority”.[iii]

These and similar comments by public officials, and the publication of a discussion document entitled “The transformation of the judicial system and the role of the judiciary in the developmental South African state”[iv], on 28 February 2012, elicited a strong public reaction. The discussion document recommended the assessment of the impact of the Constitutional Court’s decisions on social transformation. The discussion document went to great lengths to emphasise that the proposed review was not intended to be an attack on the judiciary. Rather it said that the commission was mandated by item 16(6) of Schedule 6 to the Constitution, a transitional provision relating to the rationalisation of court systems. The focus was not on the decisions of the Constitutional Court itself, but rather the impactof its jurisprudence on society.

Despite these assurances, judges[v], academics[vi], legal and political commentators[vii], and civil society[viii] voiced concerns that this review amounted to an unconscionable intrusion by the executive on the independence and functioning of the judiciary.

Notwithstanding this criticism, the Department of Justice and Constitutional Development issued terms of reference regarding the proposed research[ix]. Over a year later, the tender to conduct the required research was awarded to the Human Sciences Research Council (HSRC) in partnership with the Nelson R Mandela School of Law of the University of Fort Hare (UFH).

Development of Report

The researchers convened colloquia during the research period, which were attended by industry experts. The purpose behind the colloquia was to “democratise” the project and hear concerns regarding research integrity. These provided a forum for those who initially criticised the project to offer their input on what should be explored. Their intervention appeared to have been successful, in that the research mandate was firmly kept away from any review of courts’ powers.

The final Report was completed some eight months behind schedule in November 2015. However, the more egregious delay was in the release of the final Report which occurred only two years after its completion. This delay was neither mentioned nor explained by Minister of Justice Masutha during his speech at the launch of the Report on 3 November 2017.[x]

Overview of Report

The researchers’ mandate included examining the “lived experiences of all South Africans, particularly in respect of the adjudication and implementation of socio-economic rights within the context of a capable and developmental state”.

This was done both by way of desk-top research (such as analysing court decisions) and fieldwork. The fieldwork component of the research canvassed views of former and current judges of the Constitutional Court and Supreme Court of Appeal, public officials, advocates, attorneys, civil society organisations, and – most interestingly –litigants themselves, the people who approached the Courts with the aim of vindicating their constitutional rights. Often, cases centred on constitutional rights capture intense public scrutiny and media attention as they make their way through the courts, only for the cases – and the persons whose lives are materially impacted by those decisions – to be forgotten soon as judgment is handed down.[xi]

The Report was organised into four main themes, namely:

- Socio-economic and transformational jurisprudence and the role of the courts;

- Implementation and impact of court decisions;

- Direct and indirect access to the constitutional court; and

- Access to justice: costs, duration and process.

- Jurisprudence and the role of the courts

The Report found that the orders of the Constitutional Court and Supreme Court of Appeal have been “mostly transformational” and that the courts rely on the legislature and executive branches of government to implement these orders. The Report implies that that executive must meet its primary responsibility for the implementation of socio-economic rights for transformation to occur.

The Report pointed out that the courts are not well placed to make policy, or even to prescribe to government as to how it should make its policy choices. Rather, the courts should be seen as guardians of constitutional rights.

Different tests are possible in the adjudication of socio-economic rights. The first approach would entail the definition of a minimum core content of these rights. The second would be a ‘reasonable’ test, applied to government actions. The preponderant view is that the second approach is more desirable, although the Constitution does not prohibit a minimum core approach.

Jurisprudentially, there is a tendency to borrow extensively from Canadian law, very little from German and American law, and hardly anything from comparative jurisdictions in Africa. Courts have adopted best practices from other countries, especially those concerned with compliance with court orders.

Focus was placed on innovative remedies such as structural interdicts and “meaningful engagement”. The Report did not point out that the need for such judicial oversight would not arise if the executive were diligent in implementing court orders. It was proposed that a “monitoring agency” could increase compliance, and the South African Human Rights was suggested by some respondents for this role.

Implementation and impact

Judgments are narrowly defined and issue-driven. Implementation depends on the multitude of variables that the executive branch of government has to consider. A key finding was that mechanisms for accountability, oversight, and monitoring must be enhanced in respect of measures aimed at realising socio-economic rights. Complexities arise from the different competencies of levels of government – national, provincial and local. One interesting finding was that some delays in implementation are attributed to fear of transgressing the Public Finance Management Act.

Direct and indirect access to the Constitutional Court

Questions surrounding direct and indirect access to the Constitutional Court were answered largely in favour of retaining the status quo. The respondents in the research discussed concerns about overburdening the Constitutional Court and expressed that “greater flexibility in structural aspects of the CC and the more effective implementation of judgments are more preferable to a relaxation of direct access criteria”. They also highlighted that the High Courts should not be overlooked as they have a key role to play in adjudicating constitutional claims.

Costs, duration and process

This theme produced some interesting insights regarding the experiences of litigants in constitutional rights cases, mostly because the research was empirical. Respondents conveyed that they generally felt that they were treated fairly and with dignity in the courts but their attitudes were less favourable when asked about the impact of court decisions. This again demonstrates that poor implementation of court orders can undo many of the positive aspects of constitutional litigation.

Another important finding is that for litigants, the court process may be prohibitively costly – even where legal services are provided pro bono. Costs such as transport to hearings, meetings, and consultations as well as the costs of being away from work must be taken into account. The South African Social Attitudes Survey 2014 found that 76% of respondents favoured the use of tax funds for the funding of legal services when required. The idea that the mandate of Legal Aid South Africa (LASA) should be increased to include socio-economic rights litigation was generally supported, but concerns were raised regarding LASA’s independence as a state-funded entity, and the quality of legal representation it can provide. Some respondents expressed the view that the rules of the High Court and Supreme Court of Appeal need to be reformed to simplify procedures and make justice more accessible.

Conclusion

The Report contributes in some ways to the understanding of how the mechanisms intended to ensure justice actually operate. This is particularly the case as regards the findings that followed from interviews with litigants and members of the public regarding their perception of the justice system. Nevertheless, in its extensive analysis of court decisions, the Report confirms prevailing positions surrounding the work of the Constitutional Court and Supreme Court of Appeal, and in that regard, the Report has not provided many novel insights.

Further analysis of the Report will follow in Part II of this brief.

Cherese Thakur, Legal Researcher, Helen Suzman Foundation, 9 February 2018

[i] Presentation to the Justice Portfolio Committee dated 5 September 2014, http://pmg-assets.s3-website-eu-west-1.amazonaws.com/140905constitutional_justice_project.ppt accessed on 11 January 2018.

[ii] Monare, M “Concourt’s powers need reviewing, says Zuma” The Star accessed online at https://www.iol.co.za/the-star/concourts-powers-need-reviewing-says-zuma-1232428 on 22 January 2018.

[iii] Staff Reporter “No sunset clause for Constitution” The Mail and Guardian, accessed online at https://mg.co.za/article/2012-02-17-no-sunset-clause-for-constitution on 19 January 2018.

[iv] This document can be accessed online at http://www.justice.gov.za/docs/other-docs/20120228-transf-jud.pdf.

[v] Uncredited “Moseneke in new clash with Zuma” IOL Newshttps://www.iol.co.za/sundayindependent/moseneke-in-new-clash-with-zuma-1296282 accessed on 30 January 2017.

[vi] See Klaaren, J “Transformation of the Judicial System in South Africa, 2012 – 2013” The George Washington International Law Review (47) 2015 at pages 481 – 508.

[vii] De Vos, P “Assessment of judiciary represents a retreat for reactionary forces in government” https://constitutionallyspeaking.co.za/assessment-of-judiciary-represents-a-retreat-for-reactionary-forces-in-government/, accessed on 30 January 2017.

[viii]The Helen Suzman Foundation published a brief detailing a number of concerns with the review. See Morris, E “A Review of Concourt and SCA Decisions: Undermining or Empowering the Rule of Law?” http://hsf.org.za/resource-centre/hsf-briefs/a-review-of-concourt-decisions-undermining-or-empowering-the-rule-of-law accessed on 31 January 2018.

[ix] This can be accessed online at http://www.justice.gov.za/m_statements/2012/20120326_m_transformation-tor.pdf.

[x] This is despite the fact that the final Report builds on the work of three prior reports, which were submitted to the Department in March 2014, October 2014, and March 2015 respectively. Therefore, at the very least, the Report’s preliminary findings and conclusions would have been known to the Minister well in advance.

[xi] See, for example the news article by Pearlie Joubert of the Mail & Guardian “Grootboom dies homeless and penniless” https://mg.co.za/article/2008-08-08-grootboom-dies-homeless-and-pennilessaccessed on 30 January 2018.