THE ‘review’ of South Africa’s highest courts, commissioned by the government, involves illegitimate probing of whether decisions by these courts were correct.

That’s the view of Sir Jeffrey Jowell QC, director of the Bingham Centre for the rule of law, who was speaking at the Helen Suzman Foundation last night (16 May, 2012).

Jowell said that while some aspects of the evaluation were acceptable, because the questions would give government useful information about deployment of resources, other questions were not.

‘It is perfectly appropriate for the government to assess the effectiveness of the courts’ organisation and management.  Are they acting sufficiently quickly?  How clogged is the docket?  Are individuals provided with reasonable access to the courts?  Are they employing their resources efficiently? 

‘Might they need more resources, or more resources in certain geographical areas or in some areas of legal dispute?  Are the costs of litigation reasonable?  Is legal aid sufficient?  Is justice provided evenly across the land? 

‘These questions are appropriate for government to answer because it is government that can decide whether to provide the resources or the expertise to remedy any deficiencies in those organisational and managerial matters.’

These questions dealt with matters of efficiency and impact and would be legitimate to explore without affecting separation of powers.

But there were other questions, going to the correctness of the decisions made by the courts. The purpose of these questions, according to the tender documents, is to undertake

‘a comprehensive analysis of decisions [of the courts] to

• establish the extent to which such decisions have contributed to the reform of S African jurisprudence and the law to advance the values in the Constitution,

• to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity” and
• to assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the constitution.'   

Jowell said that these questions were legitimate for an academic or NGO study, ‘but surely not another branch of government even by means of contracted out tender.’

‘The executive here is assessing the substance of the courts’ decisions.  It is asking whether the actual judgments of the courts are correct.  It is claiming the right to second-guess the judiciary, in blatant disregard of the separation of powers and the right of the courts to arrive at their  decisions irrespective of the view of the executive and free of any executive pressure. 

‘There is also a clear implication that if the courts fail the examination, a penalty will ensue.  Why else conduct the inquiry? What concealed sanction is contemplated that could not amount to an interference of judicial independence and the separation of powers?'

Full text of the Jowell speech:

Click here to download:

HSF_LECTURE_FIN.docx (32 KB)

(download)

Click here to download:

HSF_LECTURE_FIN.docx (32 KB)

THE General Council of the Bar and the Johannesburg society of advocates are likely to challenge the high court ruling declaring that the South Africa President has no power to confer senior counsel status on members of the bar. That’s according to a statement issued Friday 10 February 2012. The statement summarises the high court decision and says its members believe the decision would be ‘susceptible’ to appeal.

Judge Legodi Phatudi today delivered a judgment in which he found that the President of SA had no power to confer the status of senior counsel on advocates. He said this inevitably meant that all silk appointments, made since April 1994, were unconstitutional and invalid.

IT’S not only the central government that finds itself under pressure from the courts. Provincial and local governments are also being told to obey the law and act as the constitution requires. In fact the national government’s proposed inquiry into the courts and their decisions could well find a general judicial tendency to insist that everyone, regardless of who they are or how important, should respect the rule of law.

One such judgment landed on my desk this week. It’s in fact a decision delivered some time ago, but the acting judge concerned, Templeton Mageza, was not able to hand over a copy for distribution until now because of problems with his laptop.

The applicant, Nontskikelelo Dlusha, is a ratepayer within the King Sabata Delindyebo municipality. In March 2009 the municipality informed her that her services were being discontinued as she owed R61 098.49 for ‘arrear municipal rates and services’. Dlusha then formally asked how the municipality had calculated the amount said to be outstanding, filling in an application for this information.

Most readers will correctly guess that this was followed by a deep and prolonged silence. Two months later she went to court saying her constitutional right to access information was being infringed and that she wanted various documents so she could understand how the rates and arrears were computed.

That woke the municipality authorities from the deep sleep which they appeared to have been enjoying. They now claimed a special defence against her action: she was not entitled to go to court for this information, they said, as she should have brought an internal appeal before involving the courts.

Dealing with this dispute, Mageza noted that in the municipality’s heads of argument there is for the first time an inkling of what might lie behind the silence that followed Dlusha’s request. Her papers ‘seem to reflect that [she] seeks information which has a potential of jeopardizing the [municipality’s] claims against various consumers’. From those phrases, however, it’s hard to work out exactly what the municipality fears, unless it’s that others would follow her example.

Mageza wondered why the authorities relied on the claim that Dlusha should have brought an internal appeal, rather than spelling out why they objected to giving her the information. He quoted at some length from previous court decisions about the entitlement of all citizens to a just and fair resolution of disputes by way of a fair public hearing before a court or impartial tribunal and that all constitutional obligations (in this case by the authorities concerned) must be performed diligently and without delay.

He did so, explained Mageza, ‘in an effort to send the clear message that an applicant who has in good faith and as of right requested information in terms of [the law] ought to be dealt with in a rational, fair and just manner by public authorities.’

‘In an open and democratic society, government must be accountable for its decisions and its actions should be informed by rational considerations that are explicable to those affected. Public access to information is fundamental to encouraging transparency and accountability in the way in which government and public authorities operate. Executive action must not be arbitrary. Arrogant disregard and failure to positively engage the public is not one those values contemplated in the constitution. There is no room for a policy of “Don’t ask, don’t tell”.’

Mageza added that in Dlusha’s case there seemed to exist ‘an apparent lack of insight by [the municipal authorities] of their legal position as a body that is there in order to serve citizens and ratepayers.’

He highlighted the decision by the authorities not to file answering affidavits and said this was a matter of concern because of the unwarranted extra costs incurred by the applicant in such a case. ‘The duty of [the authorities] is always to facilitate rather than to obstruct the dissemination of reasonably requested information.’

And, he noted, where an applicant was dealt with, and a case was conducted, in a way that showed ‘unconscionable conduct’ by any sphere of government, the court could ‘express its displeasure’ by awarding punitive costs against it. Thus he ordered that the authorities had to file their answering affidavits within 15 days, and that they pay Dlusha’s costs on attorney and client scale.

An excellent example, I would have thought, of the courts, transformed in their thinking, showing proper constitutional independence by applying the law to hold the authorities accountable.