/ 28 May 2010

Last Rights

Finally, a Superior Courts Bill has been approved by the Cabinet that may pass without major resistance from the judiciary, says a columnist.

Finally, a Superior Courts Bill has been approved by the Cabinet that may pass without major resistance from the judiciary. The broad idea of the Bill is to restructure the higher courts, bring clarity to their composition and function and to make provision for the administration of the judiciary.

Of the many changes to the existing system, the move by the Bill, read together with a Constitutional Amendment Bill, to ensure that the Constitutional Court is the apex court for the entire judiciary is, arguably, the most significant.

Recall that at Codesa a compromise was struck: a new court with limited jurisdiction, the Constitutional Court, would be the final court for all constitutional matters — such was the understandable distrust with the then apex court, the Appellate Division (AD), which had been so legally and morally compromised during apartheid. The AD would, however, continue to be the final court for non-constitutional matters.

The new Bill changes this situation and rightly so. An animating idea of the Constitution was that all law was within its scope, including the common law that continues to regulate disputes between private parties. But in practice much of our law has remained immune from constitutional influence. In addition, the way the courts have dealt with the demarcation between constitutional and non-constitutional matters has been haphazard at best. On occasion, it is has been impossible to divine the reasons why the Constitutional Court has assumed jurisdiction over a case save that the inappropriately named Supreme Court of Appeal (the new name for the AD) got the decision horribly wrong.

As the new apex court, the Constitutional Court could hear an appeal in any case, not only those classified as “constitutional matters”.

Hence, depending on the importance of the case to our legal development, the court may hear, for example, a shipping dispute, a tax case, or a company, intellectual property or competition law matter without having to find that a constitutional provision was applicable, whether directly or indirectly, to the disposition of the dispute.

Our constitutional ambition was to ensure that all law was shaped by the Constitution. The Bill removes the fetters on the court that require an initial finding that the resolution of the case depends on a provision of the Constitution. That achieved, the artificiality of the constitutional/non-constitutional distinction can finally be consigned to history.

Of course, this requires judges who view the legal system in this holistic fashion, understand how constitutional principles develop the common law and are able to deal with the full panoply of the law — private, public, criminal and commercial — through the prism of the Constitution. If the record of judgments over the past decade is any guide, such judges are a decidedly rare and exotic, if not non-existent, breed — the unicorns of the Bench.

That, of course, raises questions about the present composition of the Constitutional Court. If the proposed legislative changes were known at the time of the interviews for the most recently appointed justices, as they probably were, then it is truly surprising that so little attention was paid by the Judicial Service Commission to the candidates’ legal experience outside of the public law arena.

To be sure, good judges should be able to deal with complex cases without specialist skill in the relevant field. But for an apex court, some measure of clear expertise beyond public law confines is surely required if our criminal, family, property and contract law, for example, are to develop coherently and in keeping with the substantial demands of a country that is part of the global economy.

In addition, the controversial push to scrap term limits for the Constitutional Court justices needs to be evaluated within this context. (This change would also renege on an important agreement to limit the influence of any one justice, but more about that in another column.) The proposal is that the present justices should sit until the standard retirement age for high court judges — 70 years old.

Were this to happen, the country would be stuck with the present collegial bench.

The concern is that it may not, between its members, have the range of expertise necessary to seize this new role, which demands that the court develop complex law that ensures the decisions of our courts are again respected by other jurisdictions, and meet the demands of our developing economy, together with the challenges imposed by the constitutional era.

The new Bill, therefore, may need as careful scrutiny as its justly maligned predecessors.

Now is the time for vigilance, lobbying and activism by the legal community and civil society or will we risk proving the truth of the maxim about poor precedent produced by ill-qualified apex courts — their judgments are right because they are last; they are not last because they are right.