The South African Parliament has had a tendency to produce poorly drafted and dangerous legislation, the text of which allows unjust legal outcomes to occur. With the exception of the Sexual Offences Amendment Bill that decriminalises prostitution, I cannot think of one bill in recent memory that ticks all the boxes required by the standards of the Rule of Law.
On occasions where I presented oral submissions to parliamentary committees on such legislation – in this case, primarily the Hate Speech Bill and Land Court Bill – representatives from across the political spectrum insisted that despite the imperfections in the bills, South Africa’s courts will be fair and will not allow abuse to occur.
The Hate Speech Bill, among many other issues, theoretically allows a restaurant owner who refuses to let a transgender person use the restroom of the gender they identify as (as opposed to the one they were born into), to be charged and sentenced to eight years in prison. One might agree or vociferously disagree with the owner’s conduct, but all sober-minded people agree they must not spend time locked up amongst murderers and rapists for engaging in wrongthink.
The Land Court Bill, in turn – also among other problems – creates a court consisting of one judge and (when deemed necessary) two assessors, of which the latter need not be experienced lawyers. They could be land activists. These three form the bench of the court, and decide factual issues by majority, whereas the judge decides legal issues.
The new court will also be empowered to allow (ordinarily inadmissible) hearsay as evidence. Whether or not to allow such evidence, and the weight attached to such evidence, will be matters of fact, not law. In other words, if someone lodges a claim for land that is currently privately owned by another, on the basis that a deceased grandparent once told them that that land belonged to their family a century ago, two theoretical land-activist assessors could overrule the judge who wants to disallow this ‘evidence’, and could assign overriding weight to it.
The owner could, on the strength of this ‘evidence’, lose their property – and if the Expropriation Bill is also adopted, lose it without any compensation.
This is the kind of legislation Parliament is adopting, despite the fact that these imperfections and substantive problems are pointed out to the committees that are responsible for ensuring the bills are drafted properly and in line with constitutional and binding legal principles. This is the kind of legislation South Africa’s courts will be expected to adjudicate on.
Yes, South Africa’s courts are, in the main, fair, and we are certainly fortunate to have some of the most competent judges on the continent. However, the courts are not perfect, and delivering to them highly flawed legislation is to ask for trouble. ‘Don’t worry, the courts will be fair’ should not be considered a fallback position for legislative drafters or members of Parliament.
… makes hard cases
In 2018, Vicki Momberg was sentenced to three years in prison by the Randburg Magistrate’s Court on a charge of crimen iniuria (the unlawful and intentional serious impairment of another’s dignity). Momberg had used the k-word repeatedly against the complainants. Her repugnant racism is of the interpersonal type. Momberg’s standing in the community was that of a fashion designer and estate agent that nobody had heard of before or since.
In 2022, Julius Malema was cleared of wrongdoing by the Equality Court after AfriForum laid a charge of hate speech under the Equality Act against him. Among other things, Malema sang the song, ‘Kill the Boer, Kill the Farmer’, despite the same court having declared the song hate speech in 2010. Malema’s racism is of the legal, political, and institutionalised type. His standing in the community was and remains that of one of South Africa’s most prominent, influential, and powerful politicians.
The harmless but offensive Momberg was ‘neutralised’ by the legal system, whereas the powerful and offensive Malema has shown no signs of ending his advocacy of racist positions nor does the legal system seem intent on ever putting a stop to it. The courts can and do get it wrong, and sometimes very wrong.
Indeed, after the infamous Constitutional Court judgment in the Agri SA case from 2013, it would be difficult for me to trust the courts on any property-related matter again.
Shed legal training
In that case, the majority on the bench effectively shed its legal training and commented liberally on economic and social issues. Where law was pertinent, the court waved the established principle away in the name of what it thought was some mystical ‘transformative’ mission inherent in the Constitution. The result was that the unambiguous requirement in section 25 of the Constitution requiring compensation when property is expropriated was ignored, and the en masse expropriation of South Africa’s mineral resources was allowed to go uncompensated. In the minds of the majority – to the amazement of the legal community – there was no expropriation per se. The bad law in this case was the Mineral and Petroleum Resources Development Act.
While the courts can and do often stave off much of the abuse that might follow from bad law, they are themselves also often complicit in the abuse. This is understandable when one appreciates the nature of the judicial process.
Not all judges are legal philosophers. My own preference would be for all judges to have a deep understanding of natural rights and the classical liberal foundations of constitutionalism. Following from this, judges should be capable of striking down legislation that is patently incompatible with the kind of liberal democracy the Constitution envisages, even when the legislation’s constitutionality is not being impugned by the parties.
This is not the case in reality. South Africa’s judges regard themselves as bound by the legislation Parliament lays down, no matter how improperly it is drafted. If the Hate Speech Bill is adopted, and cases of hate speech come before South Africa’s courts, the courts will apply the law as laid down in the legislation. The only way for the courts to take their blinders off momentarily is for the constitutionality of the law to be challenged, and even then, it is an uphill battle to convince the courts that South Africa’s parliamentarians have a dim view of the Constitution.
Perhaps by no fault of their own, when they are forced to apply bad law, the courts will deliver bad judgments. There are many ways to fix this problem, including becoming more discerning in what type of person we want as a judicial officer. But the simplest place to start is for Parliament to stop adopting poorly drafted or dangerous legislation under the misapprehension that the courts will soften their deleterious impact.
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