WATCHING THE WATCHMEN

"As Antoine de Saint-Exupéry said, it is harder to judge oneself - and, one may add, the fruits of one's labours - than to judge others."[1]

Oliver Wendell Holmes reflected ruefully on judging the fruits of a judicial career near the end of his own. What, he asked, was there to show "for this half lifetime that has passed?" Studying the docket of his judgments, he was struck by the fact that "many of them [fall] upon trifling or transitory matters, to represent nearly half a lifetime".[2] But of course many others did not: they shaped the law, and speak across time.

Other contributors write of the fruits of judicial labour in the case of Louis Harms. The sweep is protean. His reported decisions over his own long career bestride administrative law, contract, delict, of course intellectual property par excellence, procedural law, privacy, tax, and the whole gamut of public law. (He liked to say to counsel in oral argument that he was supposed not to know anything about constitutional law or shipping - yet delivered leading judgments in both).[3] But to one encompassing theme he warmed - in every sense of the word. This is a permutation of the first point of the author of The Little Prince. Beyond determining the worth of one's own work, it entails the yet more basic task of setting its boundaries. In the case of the judge, public servant extraordinary, it entails identifying and respecting the limits of judicial authority itself.

The judge's duty to do so has long been recognised. The courts, wrote Alexander Hamilton in 1788, were intended under the American constitution to keep the legislature "within the limits assigned to [its] authority".[4] Much later the same was said for English law, but this time with equal application to the executive. In the cause célèbre of M v Home Office,[5] Nolan LJ put the point with precision:

"The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is."

For South Africa, the position in principle has been made equally clear.[6] It is the constitutional function of the court to pronounce upon the validity of all public power, of whatsoever nature. With that the quietus was given to the deeply-entrenched notion that no-go areas existed for the courts in public law. True, the Constitutional Court had previously held for a power of review over presidential pardons, but it had done so, by majority, in tentative terms.[7] But now the implications were spelt out: the Constitution is supreme; the judges' oracular power to pronounce upon it binds the other arms of state.

But if no crevice of public power is beyond judicial reach, does it follow that judicial power itself is unlimited? That notion is constitutional anathema: it invites comparison with the power of the king in medieval English law. "Every legal power must have legal limits otherwise there is dictatorship".[8] This is precisely what made Lord Denning such a late convert to the notion of a justiciable bill of rights. The prospect of the undefined authority of an unelected judiciary under the unwritten constitution of the United Kingdom had filled him with unease. His answer was only that someone had to be trusted. "Let it be the judges".

But how?

For Louis Harms a sense of noblesse oblige was not good enough. His judgment in National Director of Public Prosecutions v Zuma went straight to the heart of the matter.[9]

The facts are well-known. South African's President asked the High Court to annul the decision of the National Director of Public Prosecution to indict him for corruption. The High Court found for the President.

The judge, Harms DP held, failed to adhere to a basic tenet: "that in exercising the judicial function, judges are themselves constrained by the law".[10] Inverting the Gospel, what they did to others, judges had to do to themselves.

The judge below had promisingly asserted that the judiciary is independent and no respecter of persons, standing between the subject and any attempted encroachment on her liberties. But then he went awry. His commendable departure point, noted Harms DP

"was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative function".[11]

The analysis of the hapless judge a quo's multiple misdirections - most at the fundamental level as to what was evidence and what was not, and as to which were the triable issues - is as extensive as it is withering. But Harms DP anchored it all in this premise:

"The independence of the judiciary depends on the judiciary's respect for the limits of its powers. Even if, in the words of the learned judge, the judiciary forms a ‘secular priesthood',^[[12]] this does not mean that it is entitled to participate or be judgmental, especially about those who have not been called upon to defend themselves ...".[13]

An objective determination is required, then, by the judge himself - a custode ipso - in answer to the timeless question: quis custodiet custodes ipsos?

The problem is no arid abstraction. Daily the issue arises: what determines whether "the court will take time" (the incantation of a court rising with a reserved judgment), and how long this might be? How in this (and related contexts) judges are controlled by law, not seigneurial whim, was explored by Harms JA (as he then was) in anothercause célèbre.[14]

A High Court full bench had, by majority, dismissed a challenge to pricing regulations for medicines. All parties were agreed that the matter was urgent. Application for leave to appeal followed the next court day. It was eventually heard weeks later. The ruling was not immediately delivered, as is customary, but reserved by the judges. After five weeks the ruling was requested. There was no response. So an application for leave to appeal was lodged with the Supreme Court of Appeal, on the basis that for the High Court not to grant the application within a reasonable period was, in the absence of an explanation, inexplicable. In the circumstances in which the matter was argued (agreed by the parties to be urgent), constructively it was a refusal of leave to appeal.

Harms JA ruled that the application had competently been lodged with the Supreme Court of Appeal. He anchored the ruling in constitutional principle, and in particular the right to a fair hearing:

"The Supreme Court Act assumes that the judicial system will operate properly and that a ruling of either aye or nay will follow within a reasonable time. The Act - not surprisingly - does not deal with the situation where there is neither and a party's right to litigate further is frustrated or obstructed. The failure of a lower Court to give a ruling within a reasonable time interferes with the process of this Court and frustrates the right of an applicant to apply to this Court for leave. Inexplicable inaction makes the right to apply for leave from this Court illusory. This Court has a constitutional duty to protect its processes and to ensure that parties, who in principle have the right to approach it, should not be prevented by an unreasonable delay by a lower court. In appropriate circumstances, where there is deliberate obstructionism on the part of a Court of first instance or sheer laxity or unjustifiable or inexplicable inaction, or some ulterior motive, this Court may be compelled, in the spirit of the Constitution and the obligation to do justice, to entertain an application of the kind presently before us".[15]

The factual matrix also raised the question of judicial delay - and inappropriate responses by perpetrators when confronted with it. These responses have taken on the language of Runnymede. There are some judges, Harms JA wrote caustically,

"who believe that requests for ‘hurried justice' should not only be met with judicial displeasure and castigation but the severest censure and that any demand for quick rendition of reserved judgments is tantamount to interference with the independence of judicial office and disrespect for the Judge concerned. They are seriously mistaken on both counts. First, parties are entitled to enquire about the progress of their cases and, if they do not receive an answer or if the answer is unsatisfactory, they are entitled to complain. The judicial cloak is not an impregnable shield providing immunity against criticism or reproach.

Delays are frustrating and disillusioning and create the impression that Judges are imperious. Secondly, it is judicial delay rather than complaints about it that is a threat to judicial independence because delays destroy the public confidence in the judiciary. There rests an ethical duty on Judges to give judgment or any ruling in a case promptly and without undue delay and litigants are entitled to judgment as soon as reasonably possible. Otherwise the most quoted legal aphorism, namely that ‘justice delayed is justice denied', will become a mere platitude. Lord Carswell recently said:

‘The law's delays have been the subject of complaint from litigants for many centuries, and it behoves all courts to make proper efforts to ensure that the quality of justice is not adversely affected by delay in dealing with the cases which are brought before them, whether in bringing them on for hearing or in issuing decisions when they have been heard'.

In Goose v Wilson Sandford and Co the Court of Appeal censured a judge for his delay in delivering a reserved judgment and said:

‘Compelling parties to await judgment for an indefinitely extended period ... weakened public confidence in the whole judicial process.

Left unchecked it would be ultimately subversive of the rule of law'."[16]

There can be no debate that this is so. Of course, the phenomenon is not new. Lord Eldon was a chronic delayer, beginning his judgment in one case by noting (with no evident irony) that "having had doubts upon this will for twenty years, there can be no use in taking more time to consider it".[17] William Hazlitt, mordant essayist, portrays Eldon as a judge who

"hugs indecision to his breast and takes home a modest doubt or a nice point to solace himself with it in protracted, luxurious dalliance. Delay, seems in his mind, to be of the very essence of justice. He no more hurries through a question than if no one was waiting for the result and he was merely a dilettanti, fanciful judge, who played at my Lord Chancellor, and busied himself with quibbles and punctilios as an idle hobby and harmless illusion."[18]

Grotesque current examples in the region abound. Zimbabwe's Supreme Court upheld on the day it was argued (25 June 2009) a claim regarding the detention and torture of a human rights activist, Jestina Mukoko. It was presided over by Chief Justice Godfrey Chidyausiku. The defence advanced on behalf of the Attorney-General, Johannes Tomana, collapsed in oral argument under probing questions by one of the five members of the court, Wilson Sandura. Hence the immediate order. But the court is yet to bring itself to give its reasons, finding (as they must, given their order) abduction and torture by state functionaries.

Worse examples of delay abound in Namibia. Sebatane v Mutumba[19] entailed a challenge to the constitutionality of a time-barring provision, requiring litigants to institute claims against provincial and local authorities within 90 days. Shivute J reserved judgment on 18 March 2003. On 4 October 2012 (now serving as Chief Justice) he returned to the High Court to deliver judgment. He held that a 90-day limit on a lay litigant was entirely reasonable. The irony of taking nine years to say so appears to have been lost on the court.[20]

Precisely because the limits of judicial power cannot be left to individual, discretionary determination, Louis Harms has played a leading role in the formulation of a judicial code of ethics for South Africa. It draws on the comparative work of Mauro Cappelleti,[21] UN, Australian, Canadian, EU, German and US guidelines.[22]

A third area in which Harms has set trenchant limits for judicial intervention is arbitration. In Telecordia Technologies Inc v Telkom SA Ltd[23] a High Court judge had judicially reviewed an international arbitration award by a London silk, directing to boot that he be summarily removed and replaced by three new arbitrators (all retired South Africa judges).

The judgment by Harms is a tour de force of comparative modern law on party autonomy in arbitration proceedings. More important for present purposes is the analysis of the limits of the court's powers sitting on review. The analysis is simultaneously simple and devastating:

"The High Court's approach was to interpret the agreement afresh; to come to a different conclusion about its meaning; and then to conclude that as a result of the difference ‘the arbitrator did not apply his mind thereto in a proper manner, [and] that he misconceived the whole nature of the inquiry and his duties therewith' and that he simultaneously exceeded the bounds of his powers. But it was not for the High Court to reinterpret the contract; its function was to determine whether the gross irregularities alleged had been committed. By its reinterpretation the Court dealt with the matter as an appeal, reasoning, in effect that because the arbitrator was wrong it had to follow that he had committed an irregularity. The failure to apply the applicable principles of interpretation or to come to a wrong conclusion does not amount to a ‘gross irregularity' as the quotations from Doyle v Shenker illustrate. It is circuitous to reason, as the court did, that this alleged failure amounted to a misconception of the whole nature of the inquiry and that consequently the failure amounted to a gross irregularity. The Court sought to distinguish Doyle v Shenker on the basis that in that case the magistrate committed an error of law while acting within his jurisdiction, implying that by interpreting the Integrated Agreement the arbitrator had acted outside his jurisdiction, which is simply wrong. If one considers the length of the proceedings, the arbitrator's active involvement in defining and refining the issues, and the detailed and reasoned award, it was as presumptuous as it was fallacious for the Court to have held that the arbitrator did not apply his mind properly to the issues at hand".[24]

There is some debate as to whether it was Aristophanes or Archilochus who left us the adage: the fox knows many things, but the hedgehog knows one big thing.[25]

For the polymathic "fruits of his labours" (as both Antoine de Exupéry and Oliver Wendell Holmes would see them) Louis Harms is a singular judicial fox. But his insistence on the pervading principle that "the independence of the judiciary depends on the judiciary's respect for the limits of its powers"[26] makes him a hedgehog in our times, sans pareil.

Footnotes:

[1] New Clicks South Africa (Pty) Ltd v Minister of Health 2005 3 SA 238 (SCA) 260C, per Harms JA.

[2] Oliver Wendell Holmes Jnr Collected Legal Papers (1920) 245-6.

[3] He did so without pointing out that, after all, in a legal system like that of England and Wales, the Probate Division historically has required of its judges simultaneous expertise in divorce law and shipwreck at sea.

[4] The Federalist or New Constitution: papers by Alexander Hamilton, James Madison and John Jay (1979). The Federalist Papers were first published over the signature of "Publius" in New York newspapers from October 1787 to April 1788. They were collected (in two volumes) in 1788, with their authorship still anonymous. It is accepted that number 78 was authored by Alexander Hamilton. He served with Washington in the Civil War, was a delegate to the Federal Constitutional Convention (1787) and First Secretary of the Treasury (1789-1795). His support for Thomas Jefferson over Aaron Burr for the presidency and later opposition to Burr's campaign for the governorship of New York resulted in a duel with Burr in 1804 in which Madison was killed.

[5] 1992 QB 270 314. A Zairean asylum-seeker was repatriated in breach of what the court understood to be a Home Office undertaking. The House of Lords held that the Home Secretary was answerable for contempt. Counsel in the matter recollects that "Lord Templeman was famously to remark that the Crown's argument that ministers complied with court orders as a matter of grace and not of legal obligation would, if it succeeded, reverse the result of the Civil War" (Sedley Ashes and Sparks: Essays on Law and Justice (2012) 271-2).

[6] Pharmaceutical Manufacturers Association of SA: In re ex parte President of the Republic of South Africa 2000 2 SA 674 (CC).

[7] President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC) 17B-C.

[8] Schwartz and Wade Legal Control of Government (1972) 254-5, cited by the full bench in Ismail v Durban City Council 1973 2 SA 362 (N) 372A-B.

[9] 2009 2 SA 277 (SCA).

[10] 287J-288A.

[11] 288B-C.

[12] The phrase, though sonorous and self-congratulatory, has its sinister side. Jeremy Bentham, for instance, condemned "the artifices of priestcraft" practised by lawyers to the detriment of lay clients (Bowring (ed) The Works of Jeremy Bentham(1843) vol 2 270. And Morris Pax Britannica (1979) 194 writes of a hill tribe in India "sacrificing a kid to propitiate a distant but omnipotent deity: ‘We know nothing of him, but that he is a good god, and that his name is the Judicial Committee of the Privy Council'".

[13] 289B.

[14] New Clicks South Africa (Pty) Ltd v Minister of Health 2005 3 SA 238 (SCA).

[15] 257H-258C.

[16] 260H-262C.

[17] Radnor v Shafto 1805 32 ER 1160 at 1162. Whether the beneficiaries were stillin esse is not recorded.

[18] Hazlitt The Spirit of the Age (1825) 238, quoted by Pannick Judges (1987) 87.

[19] [2012] NAHC 253. In Minister of Basic Education, Sport and Culture v Vivier NO[2012] NASC 9 Maritz JA took four years and two months to confirm in its material parts a judgment for damages (initially heard in the High Court from 23 February 2005, judgment delivered on 30 September 2007). The claimant had sued on behalf of a mentally disabled girl raped by a teacher. There are more examples. A case concerning the constitutionality of requiring all citizens (by naturalisation, as opposed to those by birth or descent) to renounce their existing citizenship - Tlhoro v Minister of Home Affairs 2008 1 NR 97 (HC) - was heard by Maritz J (with Mainga J) on 25 August 2000. Maritz JA (as he had become) delivered judgment on 2 July 2008.

[20] These obvious failures of justice have impelled the Namibian Law Reform and Development Commission in October 2012 to present for discussion a Judicial Oversight Bill, attaching a draft Code of Judicial Conduct based on the 2002 Bangalore Principles of Judicial Conduct. It proposes (clause 4) a 90-day limit in civil cases and 60-day limit in any appeal, subject to an extension on application by the judge to the Judicial Service Commission (clause 6). Fines may be imposed on delinquent judges (clause 9).

[21] Cappelletti "Who watches the Watchmen? A comparative study on judicial responsibility" 1983 American Journal of Comparative Law 1.

[22] 2000 SALJ 406 418.

[23] 2007 3 SA 266 (SCA).

[24] 305H-306C.

[25] Isaiah Berlin The Hedgehog and the Fox: An Essay on Tolstoy's View of History(1953) 3. See too now Dworkin Justice for Hedgehogs (2011) 1.

[26] Zuma case 289B.

This article first appeared in the February issue of the Journal of Contemporary Roman-Dutch Law.

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