JOHANNESBURG 4 MARCH 2013 11:15
Who will rule on judges versus the Constitution?
01 MAR 2013 00:00 - SERJEANT AT THE BAR
When judges make key decisions, what fidelity do they owe to the normative framework of the Constitution?
Two weeks ago, Jeremy Gauntlett SC published an article in this newspaper on the important topic of judicial accountability (" Who guards the guardians of the law
?", February 15). Unfortunately, it did not appear to win him any favour with the Judicial Service Commission (JSC), which did not, in the end, put his name forward for the vacant position on the Constitutional Court.
Nonetheless, the article raised a vital question. Our Constitution, setting a clear template for the society that would encapsulate the nation's aspirations, empowers judges to make decisions with immense political and economic consequences.
That this model society, or the juris prudence of the Constitutional Court, may be contested by members of society only raises the stakes of the debate. When judges make key decisions, what fidelity do they owe to the normative framework of the Constitution? If judges eschew such fidelity, how are they to be held accountable, and to whom?
The issue is strikingly illustrated in a recent judgment of South Gauteng High Court Judge Nigel Willis in Johannesburg Housing Corporation v Unlawful Occupiers of the Newtown Urban Village, delivered in November 2012 (but for reasons best known to the editors of the South African Law Reports only just published). The case is hardly unusual: it concerns the eviction of a group of occupiers from property that had been bought after a failed low-cost housing development left a group, primarily of elderly people and women with children, with no legal recourse, although they continued to occupy the property.
The court responded to an eviction application in terms of the Prevention of Illegal Evictions and Unlawful Occupation of Land Act 1998, proceedings that are invariably difficult but that now take place in the context of much Constitutional Court precedent.
Willis has had his disagreements with the Constitutional Court and the Supreme Court of Appeal. Hence one braced oneself for one of the expositions for which the learned judge is well known.
Early in his judgment, he takes aim at the Constitutional Court for its judgment in Machele v Mailula and Others (2009), in which the court criticised Willis's decision to evict without consideration of the provisions of the 1998 evictions Act, which it described as "inexcusable". For no reason directly material to the present case, Willis provides a lengthy justification for his decision in Machele, concluding in astounding fashion.
He suggests that the Constitutional Court had either failed to read the full record in Machele or decided the appeal without an understanding of how application proceedings are dealt with in the high court.
Not content with this condemnation of the highest court in the country, regarding a case in which he had a vested interest (defending himself against a judicial rebuke), Willis moves on to deal with the economic underpinnings of the Constitution as interpreted to date by the Constitutional Court.
He commences with an acute observation that can surely not be controversial: that local government is strapped for cash and limited by inadequate infrastructure and thus cannot be expected to produce solutions to all pressing social questions immediately. Hence the courts' ability to ensure redress is limited.
Having made an important point, Willis resumes his initial theme: the over ambition of the Constitution. Section 26 is the source of the right to access to housing, about which the learned judge says: "If we want more people to have access to housing, it must be made easier to own property … Progressive realisation [of the right to access to housing] is no more capable of changing this than King Canute could stop the sea."
This critique of a key provision of the Constitution, which all judges take an oath to uphold, leads to a lengthy discourse on the merits of free enterprise and the unlimited potential of the private sector. We are told of the dangers of state intervention, comparable to apartheid social engineering.
In the attempt to argue the economic solution to South Africa's problems, there are further rich pickings for enthusiasts of the Willis style.
All of which compels a return to judicial accountability. Is it permissible for a judge to advocate a normative legal framework that diverges from that of the Constitution and the content given it by the Constitutional Court? Is it permissible to use the office of a judge delivering judgment as a pulpit to expound his personal views? Or does the judge owe an overriding fidelity to the Constitution as it currently reads? For example, could a judge say that he or she disagrees with the present antidiscrimination clause in the Constitution?
These are vital questions, which Willis has brought into sharp focus. What says the JSC?
Mail & Guardian
Comments by Sonny
Our Constitution is doomed to failure.....?
The JSC is not impartial and they have proved this in the recent past.
THE PEOPLE SHALL PROTECT SA AND ITS CONSTITUTION!