A Big CON

By: Mduduzi Mike Katide
Writer, Author and IT Specialist

South Africa is not what we hoped it would be because the Constitutional Court has not remained what it once was; it has not lived up to what we hoped it would remain. The biggest con since the democratic dispensation has been the transition of the Constitutional Court to the Apex Court —that nearly all the justices accept this new monicker is sad. 

In Knowledge and Decisions, Thomas Sowell teaches to distinguish between categorical decisions and incremental decisions. He teaches that where the knowledge cost is high the decision must be made incrementally; being open to feedback processes, tweaking and tinkering until the decision is right. However, when the knowledge cost is relatively low, a categorical decision can and should be taken once and for all. This seems to be the basis for the two main legal traditions around the world. There is common law, which is based on incremental decisions or precedents, and there is civil law, which is a more categorical set of codes which is developed somewhat academically, much through reasoning in the abstract and then the judge simply must read what the law says and apply it to the case at hand and give a decision. On the other hand, in common law countries it will be adversarial; one side argues, and another side argues, and they each cite which precedent decision supports their interpretation of the case at hand and the judge is the moderator in between and decides who was right of the two and who was wrong. In short, common-law systems make law by tradition. They tend to better freedom and liberties because, crudely put, you can do whatever the hell you want —as long as nobody complains. But if somebody complains, hence the rise of adversarial situations, they can then take you to task before a magistrate, judge or jury. If the matter resolves in your favour, you carry on with what you did, a new precedent has been set and nobody will be bothered by the same objection again. However, if you fail, then that behaviour henceforth is proscribed. s 

South Africa is in a very difficult situation because of the historic injustices that have interjected an entire corpus of laws based on injustice by design; where people were regarded as inherently unequal and the laws that have been developed over time by the common law tradition, are mostly unjust. And unjust in so many ways that it will be impossible to rectify in a moment of time, partly because all classes have internalised absurdities such that a European’s distress is perceived as more acute than an African’s. The question of how South Africa moves forward, is one which could either be resolved through a revolution where everything is done away with and you get a new system or through incremental, peaceful means. 

The United States’ revolutionary civil war of 1776 achieved justice for settler colonialists because they prevailed against the British. But the Egypt-like anti-slavery plague, the American Civil War of 1861-65, achieved categorical end of slavery, but constrained by common law tradition, did not bring Africans into the promised land flowing with peace and justice for an entire century until the Civil Rights Movement of the 1960s began embarrassing the executive and the courts. Similarly in South Africa, continuity and inertia of the common law tradition has failed to deliver a transformed society. But this was fully anticipated, hence the framers of the democratic order leaned on South Africa’s hybrid legal tradition’s civil law wing to create a centralised constitutional court tasked with re-casting South African society in the image of the constitution. 

The United States with a written constitution at the beginning of their Republic, has a Supreme Court, but no constitutional court. It didn’t need it because all the laws that would be developed and legislated would be guided by the values of the constitution. However, the United Kingdom without a unified constitution, also has a Supreme Court and no constitutional court. It is typically civil law countries that have constitutional courts as a review mechanism. The question then is, how does South Africa, a former British colony which also inherited the common law legal tradition, end up with a centralized constitutional court which is a feature of civil law jurisdictions? Well, that is no longer the case, and we believe this transition was a big con. This is the first in a series of articles, where we will delve into this change and its implications. 

Before we do so, it is important that we reflect on South Africa’s legal regime. President Jacob Zuma has been heard on the campaign trail for uMkhonto weSizwe questioning the legitimacy and logic of Africans living under Roman-Dutch civil law. Legal professionals say that South Africa has a hybrid system combining both common law and civil law. However, the constitution and various acts of parliament, unambiguously acknowledge and accommodate aspects of African common law, known as customary law. Thus, in effect, the South African legal regime is a hybrid of Roman-Dutch civil law and two common law traditions (British and African). Here is the problem, if you want to move forward at all, you have a big problem of three legal traditions that remain irreconcilable. For example, on marriage, customary law (African common law) says polygyny is alright. Common law (British) and Roman-Dutch civil law insist on monogamy. That, right there, is an irreconcilable contradiction. What do you do? The framers of the new democratic dispensation, whoever they be, chose the path of the constitution with the centralized constitutional court to decide only on matters constitutional. The original constitution of 1996 was clear: 

Thus, the original Constitutional Court was holy —in the sense of set apart from ordinary courts. It was not part of the court system, but akin to Chapter 9 institutions, it was the people’s David against the Goliath judicial system with a legacy of human rights violations and it was also an insurance against the executive and the legislative branches —not their accomplices. 

The amendments of 2012 particularly changed the constitutional court into a supreme Supreme Court of Appeals, and as such become hood to the old sweater, before its work was done; the work of mending the old, ragged South African garment using new cloth made in the loom of divinely ordained human rights. These amendments upended the original intent that through the instrumentality of the constitution, the Constitutional Court would incrementally correct categorically unjust laws (Roman-Dutch civil law tradition), set aside unjust precedents (British common law tradition) and tone down inequitable traditions (African customary law). By operating through the adversarial common law model, it would have been the people who prioritised and set the programme of reform for the Constitutional Court by bringing to that court, the most intolerable breaches. For this purpose, direct access was provided for: 

“167. 

(6) National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court— 

(a) to bring a matter directly to the Constitutional Court; or 

(b) to appeal directly to the Constitutional Court from any other court.” — Constitution of the Republic of South Africa Act, 108 of 1996. 

Then things changed. In 2012, parliament passed an amendment to the constitution that would fundamentally alter the trajectory of the Republic of South Africa. On the face of it, the change appears to extend the powers of the Constitutional Court while aligning it closer to other common law jurisdictions. 

“167.  

(3) The Constitutional Court— 

(a) is the highest court of the Republic; and 

(b) may decide— 

(i) constitutional matters; and 

(ii) any other matter, if the Constitutional Court grants leave to appeal on 

the grounds that the matter raises an arguable point of law of general 

public importance which ought to be considered by that Court, and 

(c) makes the final decision whether a matter is within its jurisdiction. 

[Sub-s (3) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012.]” — Constitution of the Republic of South Africa Act, 108 of 1996, Constitution Seventeenth Amendment Act of 2012. 

But the change was so radical and its consequences of such import, it warranted a referendum for with the change dimmed our hopes of a brighter tomorrow —though we did not notice at the time. Most of us knew something had changed, but it was not clear what had changed. I began locating the change in the altered work of the Constitutional Court in 2019 and began making relevant notes on July 23^rd of that year. The drastic change might as well have been accompanied by a change of the national anthem from Nkosi Sikelela to Abide with me, fast falls the even tide.