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By: Mduduzi M. Katide
Writer, Author and IT Specialist
How many levels does the South African court system have? We have:
- Magistrate’s Court,
- High Court,
- Supreme Court of Appeals and
- Constitutional Court.
But the Dutch who established Roman-Dutch law in these shores and the British who imposed their system of Common law, and the Americans who presently exercise power of global empire, have these levels:
Netherlands | United Kingdom | United States of America |
11District Courts | Magistrate –> Crown Court | 94 District Courts |
4 Appeal Courts | High Court | 13 Appellate Courts |
1 Supreme Court | 1 Appeal Court | 1 Supreme Court |
1 Supreme Court (2005 –>) |
That the millennium long British law system only got a Supreme Court in 2005 should be interesting. As it happens, it was not introduced in 2005 but was merely reorganised in that year. It had for a long time been in the upper house of parliament, the House of Lords, and known as Lords of Appeal, consisted of 12 most senior judges. Thus, it was set apart from the court system of England & Wales. In fact, the Lord/Lady Chief Justice leads the Appeal Court and not the Supreme Court. Therefore, England has a three-tier court system, and the Supreme Court is outside this system and hence is in effect an oversight authority over the courts of the United Kingdom (England & Wales, Scotland and Northern Ireland). [i] The author’s opinion is that the 2005 restructuring was mostly cosmetic to align with separation of powers doctrine —wholly unnecessary in the UK because the House of Lords is in any case not an elected body but an extension of the constitutional but non-executive Crown.
As discussed in A Big Con (2024-06-16)[ii], South Africa used to have a Constitutional Court which was located outside the three-tier court system as a check on the Judiciary, the Executive and Legislature. Through direct access as well as through appeal “from any other court” and working within the adversarial common law framework, it would enable the choreographic chaos of doing away with unjust laws, precedents and traditions at a time, rate and programme determined by residents within the Republic.
While cosmetically, it appears that the South African Apex Court (misleadingly sometimes still referred to as a Constitutional Court) is similar to the UK’s apex court, their Supreme Court, it remains fundamentally and materially different in that the South African apex court is headed by the head of the Judiciary, the Chief Justice whereas the UK’s Lord/Lady Chief Justice leads the Appeal Court, the South African equivalent of which is the Supreme Court of Appeals (SCA).
Thus, South Africans are being taken for a ride in that the judicial referees are also participants in the tournament. As things stand, the supreme-SCA (a.k.a. Apex Court) is worse than merely fruitless and wasteful expenditure, it is a judicial monstrosity because it provides direct access whereas it is above the SCA to which there is no direct access. This Frankenstein arrangement was activated to disastrous effect by non-other than the then deputy and present Chief Justice Zondo when he obtained direct access against President Zuma’s refusal to attend Zondo’s Commission, pending Zuma’s litigation of Zondo’s refusal to recuse himself in the lower courts. Zuma was imprisoned and yet to date, his application for the courts to review Zondo’s refusal to recuse is yet to reach finality. If this were the only demonstration of the absurdity of the Apex Court without raison d’être, it would suffice to warrant its abolition. But this is not all.
The four-tier court system in South Africa delays finality, increases the costs and sets justice further away from the lived experience of many. Without the sophisticated and well-resourced team that Please Call Me inventor Mr Nkosana Makate has, how could he have survived Vodacom’s endless appeals to the Apex Court? Given that South Africa is the most economically unequal country on earth, increasing the cost of legal finality places the legacies of apartheid further away from legally competent and decisive challenge. The Apex Court is an effective sustainer of the status quo.
There is no reason why matters of general law should go beyond the SCA. This is not the author’s subjective opinion, but the position of the original constitution which limited the Constitutional Court to constitutional questions.
When we consider that the constitutional amendment act of 2012 retired the Constitutional Court and replaced it with the Apex Court by giving it powers to decide matters of general law, we understand that the Apex Court must now be a defender of laws in general. Therefore, those laws that are inconsistent with the values of the constitution, for not being inconsistent with the letter of the constitution, can now be upheld by the Apex Court. This creates an environment where only the strictest textualists can win cases at the Apex Court. When we consider the volume of laws against which the constitution stands, it is crystal clear that the constitution can never assail all unjust laws that remain in effect. Therefore, a strict textualist approach should not be entertained in South Africa because of the judicial legacy of human rights violations against Africans and other non-European ethnicities. This is quite apart from the fact that former United States Chief Justice Antonin Scalia in any case rejected strict textualism as absurd.[iii] At another time and opportunity, an argument could be presented showing how strict textualism barred President Zuma from returning to parliament when the Apex Court set aside the Electoral Court’s decision that the Constitution did not prevent Zuma from standing for election to the National Assembly. Once again, the ugliness of an Apex Court posing as, and vested with powers of a Constitutional Court was there for all to see.
When the Apex Court balances the Constitution against other consideration then the Constitution is no longer what it claims to be, it has become just another piece of law, like all other laws. Again, it was in the same Zondo’s Commission vs Zuma case that the Apex Court held that Zuma’s rights to not be convicted and sentenced without trial was to be weighed against the alleged (not tested in cross examination) impugned dignity of that court[iv]. Clearly, the authority of the court was deemed more worthy of protection than Zuma’s constitutional rights —even though direct access had been granted to the Apex Court against whose decision there is no appeal. An impartial assessment of the facts would have concluded that at worst, the impugned dignity would have been that of a court of first instance and not the dignity of an apex court, the sentence given would have been that ordinarily given for contempt of a court of first instance —which in this case, the Apex Court was. This is not an accident of history, but an engineered outcome of the dissolution of the Constitutional Court in 2012. This absurdity would not be as easy to sustain were the Constitutional Court apart from the courts —for then it would be its duty to challenge the courts where they undermined rights enshrined in the constitution. As it happens, no institution can challenge its own authority and the Apex Court is now part of the institution of courts it was to transform and reshape in the mould of the Constitution.
In all this, is it any wonder why South Africa is not transforming to be a place that Africans can ever attain citizenship in? There is a possibility that the amended Constitution, and the Apex Court it created to usurp the erstwhile Constitutional Court, is the single biggest obstacle to transformation.
There is another aspect of the Apex Court that warrants scrutiny, namely, that it can be a court of first and last instance. Anyone who dares transact with a person to whom R1 and R10 have equal value, is bound to lose. First and last can only be the same when there is only one. We can only accept this character of the Apex Court if it was the only court. Indisputably, this is not the case but is nevertheless an implied assault on the dignity of all lower courts to the extent that it obviates their existence. Thus, we must either declare Mathematics unconstitutional or deal with this legal sophistry of the same entity being first and last in a series with four unequal elements. Moses prepares us for this by explicitly stating: “You shall not have in your bag differing weights, a heavy and a light. You shall not have in your house differing measures, a large and a small. You shall have a perfect and just weight, a perfect and just measure, that your days may be lengthened in the land which the LORD your God is giving you. For all who do such things, all who behave unrighteously, are an abomination to the LORD your God.”[v] If we are to take Moses seriously, we should not expect the return of the land for as long as the Apex Court is a court of first and last authority. President Zuma easily lost his freedom when the Commission brought a complaint as to a court of first instance but the contempt for which he was sentenced was that due to contempt of a court of last instance. He was never going to win because the Commission and the Court would use whichever measure suited their agenda best. But the most disturbing element of this is the assumption of divine prerogatives in exercising first and last authority.
An ancient prophet, Isaiah by name, reports:
“Thus says the LORD, the King of Israel,
And his Redeemer, the LORD of hosts:
‘I am the First and I am the Last;
Besides Me there is no God.
And who can proclaim as I do?’”[vi]
Indeed, who can proclaim to be the first and last, except for our Apex Court? Ours being a circular state and democracy, the Apex Court is our alpha and omega, the first and the last. And so, the prophets of the Apex Court must warn any who dare challenge its authority for thus says the Apex Court: “And behold, I am coming quickly, and My reward is with Me, to give to every one according to his work. I am the Alpha and the Omega, the Beginning and the End, the First and the Last.”[vii]
[i] United Kingdom Judiciary. 2024. https://www.judiciary.uk/about-the-judiciary/our-justice-system/the-supreme-court/
[ii] Katide, M. (2024-06-16). A Big Con. The African Perspective Weekly Report, vol.001.
[iii] Hoover Institution. (2012, October 31). Uncommon Knowledge with Justice Antonin Scalia [Video]. YouTube/@HooverInstitution. https://youtu.be/DaoLMW5AF4Y
[iv] Khampepe, S. (2021). Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18, pars. [82, 128]
[v] Deuteronomy 25:13-16 NKJV
[vi] Isaiah 44:6,7 NKJV
[vii] Revelation 22:12-13 NKJV