Constitutional law is not the exclusive domain of constitutional lawyers, judges, and litigants. It is of importance to the broader legal community, including scholars, and to society as a whole.
The Constitution – and the law and jurisprudence around it – affects everyone. That means everyone has an interest in, and in fact a right to engage in, the discourse around constitutional law.
In public policy discourse, however, the judgments of superior court judges are quoted as if from gospel. In other words, they are often used as substitutes for argument and persuasion.
For example, there are good reasons why society should not impose the death penalty, but S v Makwanyane, 1995, is not a ‘reason’. Some good reasons might be found in the judgment, but the judgment itself represents nothing more than the opinions of people. Highly qualified and knowledgeable people, to be sure, but nonetheless humans like you and me. To tell a proponent of the death penalty that it cannot be imposed ‘because of S v Makwanyane’ misses the point of discourse.
Secular priesthood
We treat judges as if they formed part of a priestly class. The rituals and uniforms associated with the judicial office certainly contribute to this. Judges are almost always robed. Those who enter and exit a courtroom must bow or at least nod in the direction of the judge when doing so, and judges are to be addressed as ‘My Lord’ or ‘My Lady’, and the cherry on top, in the lower courts, as ‘Your Worship.’
As Koos Malan writes in his 2019 book, There is No Supreme Constitution, judges in South Africa are regarded as ‘the legal kings of statist constitutionalism, privy to knowledge, insight, and wisdom other people are deprived of. They are clothed with a distinctive, almost sacred status and they sometimes even describe themselves as a secular priesthood.’ It was in the KwaZulu-Natal High Court judgment of Zuma v National Director of Public Prosecutions in 2009 that Judge Nicholson said:
‘When the public forfeited their right to resort to arms, they placed the resolution of their disputes in the hands of judges and agreed to abide by their decisions. There came into being a secular priesthood that should remain apart from the taint of politics.’
I would change very little of this – maybe ‘Your Worship’ and the errant notion that judges are under all circumstances more insightful than Joe Q Public – because ritualisation is an important part of building and entrenching important institutions in society. The mystique crafted around judges helps to inculcate a respect for and confidence in the judiciary and the idea that it stands above the dog-eat-dog politics of daily life.
Questioning judgments
In the abstract, most people would accept that the courts can be wrong and often are. In the abstract, then, people understand that judgments can be questioned.
As James R Stoner writes, the English common law tradition (whence South Africa acquires the procedure, methodology, and process of its own legal system) did recognise the notion of precedent (stare decisis) but it also recognised the principle of nihil quod est contra rationem est licitum – nothing that is against reason is lawful. As a result, ‘it was assumed that a precedent that ran against reason need not be followed.’
Even Judge Dennis Davis, whose work reveals much of what is wrong with constitutional theory in South Africa today, says in his 1999 book, Democracy & Deliberation, that the meaning of constitutional law should be subject to ‘democratic contestation’ . This is correct, although Davis undermines his own point when he effectively concludes that crude majoritarianism must determine who wins the ‘contest’, rather than who makes the most persuasive, reasonable, and logical argument.
Justice Felix Frankfurter of the US Supreme Court also once remarked:
‘Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Judges must be kept mindful of their limitation and of their ultimate public responsibility by vigorous stream of criticism expressed with candor however blunt.’
When we allow the ritualisation of the judicial process to contribute to the perception that judicial officers – and in particular, their judgments – are entirely above reproach, we are in fact undermining the very institutions the ritual was meant to strengthen. Indeed, vociferous engagement with the quality of judgments is necessary to improve the judiciary.
Agreed in the abstract, not so much in practice
The unfortunate reality is that those who have had their views vindicated in court feel that they no longer need further justify those views. They also usually believe that because their opponents’ views have lost in court it means that those views hold no validity.
We were in fact never taught at law school that judgments are infallible, which is what makes it so bizarre that many of my peers treat them as such.
In S v Jordan, 2002, the Constitutional Court found that the criminalisation of prostitution was not unconstitutional. This, despite the fact that the South African Constitution is one of few in the world that contains an explicit right to choose one’s profession freely (the practice of which profession government may regulate). To simplify the Court’s reasoning: other ‘open and democratic societies’ criminalise prostitution, and as a result, so can we!
In Agri SA v Minister of Minerals and Energy, 2013, the Court deemed the wholesale nationalisation of minerals and petroleum to be an example of ‘deprivation’ of property, rather than ‘expropriation’, meaning there was no need for government to pay compensation. On top of this, the Court failed to apply the test necessary to establish whenever a constitutional right was being justifiably limited (as is the case with deprivation).
In AfriForum v UFS, 2017, the Court decided that the University of the Free State could constitutionally abandon teaching in Afrikaans. The Constitution provides that one has the right to receive education at public institutions (like the University of the Free State) in an official language of one’s choice provided it is ‘reasonably practicable’. The Court in this case said it was not ‘reasonably practicable’ because ‘the use of Afrikaans as a parallel language of instruction unwittingly perpetuates segregation and racism.’
These are a random selection of important Constitutional Court judgments that give new meaning to the term ‘nonsense.’ In all three cases, which arguably deal with some of the simplest questions in South African constitutional law, various logical errors, misunderstandings of history, and forays into non-judicial contexts produced the obviously wrong precedent.
Yet these judgments are still quoted today, not as the anti-canon they deserve to be, but as if they are perfectly reasonable examples of jurisprudence. Certain popular law professors at the University of Cape Town tend to be especially guilty of this.
Nihil quod est contra rationem est licitum!
Only in litigation, not public policy
It is the law that rules, not the written opinions of judges who, like us, are trying to find out what the meaning of law is. For practicality’s sake, it is their opinion that we (rightly) treat as binding – almost always temporarily, until a better judgment comes along – but ‘binding’ is not synonymous with ‘correct.’
Attorneys and advocates providing practical legal advice and gearing up for litigation should defer to judgments. But when engaging on the good and bad of public policy, there is no good reason to treat these judgments as gospel.
Judges are human beings, and human beings make mistakes. We must apply our own minds to legal questions that are of central importance to public policy, and engage in vigorous debate about which argument is the correct one.
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