The Department lead the Committee through the presentation which detailed the basic information surrounding the Constitutional Justice Project, which was cast as an assessment of the impact of jurisprudence rather than a review of these judgements. This initiative was started by Cabinet in November 2011 and rested on two fundamental principles- there is a need to determine what effect the judiciary has on the lives of people through its jurisprudence, thereby giving those who make jurisprudence a chance to correct their errors; and understanding how the highest courts interpret the laws and policies made by other branches of the state and thereby reaffirming the strength and value of judicial activism, law reform and constitutional review. The Project is a joint venture by the Human Sciences Research Council (HSRC) and University of Fort Hare. A diverse panel of 38 experts was constituted to ensure that all sectors of society have input on the assessment of judgements. The objective of the Project is to locate the jurisprudence of the apex courts within the developmental state as described by the National Development Plan and whether it advances the objects of the Bill of Rights. The Project aims to identify a means for government to become aware of the judgements against it and react in an appropriate fashion. The Project was awarded to a bid of R10.3 million and spread over two financial years. A service level agreement has been concluded, properly vetted by state attorney who grounds the management of the project with the Department.
The presentation further covered the terms of reference, which included assessing the jurisprudence produced by the apex courts and the implementation of these decisions by government; the research methodology to be used which was to have both desktop research conducted as well as a review of the direct consequences of the judgement for the people involved and similarly placed individuals; the timeframes for the completion of the project and the progress to date which was the completion of the multi-partisan colloquium which identified focus areas for research and the production of an inception report for presentation to Cabinet and eventually Parliament. Lastly, it detailed the expected outcomes, the most important being the development of an understanding of the jurisprudence produced under the Constitution which will be available to the public and will hopefully inform future judgments and government policy.
The discussion among the members generated concerns about possible areas of research for the Project, including the access to court judgements, the impact of the language used in court and the jurisprudence affecting women. Members also raised concerns about how African law is being interpreted under the Constitution, particularly decisions such as Bhe vs Magistrate Khayelitsha. Also discussed was how the Project is to be made accessible to and involve the views of the wider public and what the various branches of government’s roles were in driving the process forward.
Opening Remarks by Chairperson
The Chairperson kick started the meeting with opening remarks on the process highlighting that the meeting was intended as an initial briefing and that further meetings would be arranged based on the issues arising. The purpose was not to review the judgements of the Constitutional Court, but offer constructive criticism which was important as an opportunity for the wider community to participate in the jurisprudential process. Progressive jurisprudence is a jurisprudence that embodies the revolutionary values of the Constitution. There is need for a guarantee that the judges making these decisions are steeped in these values and this informs the criteria for the appointment for judges. Particularly it had become necessary to ensure that the appointees are alive to the need for transformation and progressive jurisprudence. Reference is made many times to English common law and Roman Dutch Law, but when referring to African law it is termed customary law, despite the fact that the former two are based on the customs of the respective peoples. This could be viewed as a suggestion towards the inferiority of African law. A review of university curricula reveals that African customary law is not compulsory - how then will future judges interpret the customs which 80% of the population practice, if they have not been educated in this area. It was disappointing that lawyers are the slowest to transform, with racial fractures in the organising bodies. Further, if lawyers are slow to transform, it means that the implementation of the Constitution will be delayed. This initiative it was hoped will aid the discourse around transformation.
Mr S Swart (ACDP) replied that while he supports the broad ambit of what was said it cannot be said that “judges know nothing about customary law”.
The Chairperson clarified that because African customary law is not compulsory, then necessarily some of the lawyers and judges produced by the universities will not know about African customary law.
Mr Swart cautioned the Chairperson on the import of his remarks, in particular, his earlier statement that customary law is inferior to common law; which is not true in light of several court decisions. Further, it was not helpful to make general statements which were not necessarily correct.
The Chairperson reminded Mr Swart of freedom of speech and thought. Also as Chairperson it was necessary to provoke discussions in this respect. Most of the universities do not teach African customary law, focusing rather on English common law and Roman-Dutch law; leading to the situation where the lawyers produced are experts in foreign civil law systems, rather than the indigenous system which is applicable to the majority of South Africans. He welcomed Mr Swart’s engagement on the point and any further engagement which will be forthcoming.
Ms G Breytenbach (DA) aligned herself with comments made by Mr Swart, accepting that the comments were intended to be general and discussion provoking. It was incorrect to suggest that customary law is seen as inferior, even from previous experience in court. Further, the Chairperson’s assertion that “judges knew nothing about customary law” was an incorrect statement. Lastly, the university which she had studied at had certainly taught African customary law.
Mr L Mpumlwana (ANC) said that it is true that African customary law is not compulsory at universities and it is true that most lawyers and judges do not know this law, particularly as what is termed customary law is a trimmed version of African law. Further, African customary law is only accepted in so far as it is not repugnant to good morals, which are European morals, in line with the doctrine of repugnancy and therefore it is regarded as inferior. What is studied is Roman-Dutch law and common law; therefore it is true that African customary law is not on par with European law in South Africa.
The Chairperson added that the President and Judge Hlope had called for the Africanisation of the law. Further, there was constant engagement around the continent on indigenisation of the law. Where would these statements have come from if there was no issue to be addressed? It was needful for the Committee to exercise the fullest reach of freedom of expression and engage on contentious issues to truly aid the transformation of the legal system.
Ms C Pilane-Majake (ANC) said that harmonisation of the differences in opinion was important particularly in the context of South Africa in which people were dehumanised and marginalised. It cannot be believed that all the problems were mended overnight, through the democratic dispensation Therefore these issues need to be raised in the Committee and sore points must be identified and debated. This is to enhance nation building efforts towards the end of a free and fair society, which is reconciled and harmonious. It is fair to scrutinise the judgements of the Constitutional Court, to ensure that the Constitution is benefitting people. Culture and cultural practices can sometimes be contentious, however the Constitution was there to guide in the resolution of these conflicts and whatever is not against the Constitution should be allowed to continue.
The Chairperson concluded by stating that culture is dynamic, but people confuse principles and custom of African law, which is not done in England where principles of law and customs are clearly differentiated. People mistake African law to be things such as ukhutwala and these are remote practices, but not part of African law.
Briefing by the Department of Justice and Correctional Services
Adv Jacob Skosana, Deputy Chief State Law Advisor Department of Justice and Correctional Services, began with a quote from the late Justice Mohammed: “judges must consciously accept the risk that our judgements in crucial areas will be subject to vigorous attack and criticism; this should cause them no distress, a viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination; what they are entitled to is demand that criticism should be in good faith, not question the bona fides and above all it does not impair their independence, because judges would not be the only victims of such impairment”. He quoted this in a bid to clarify the suggestions that review would be unconstitutional; these judgements speak to the lives of people and an assessment is therefore warranted. The Bill of Rights binds the judiciary and is an important element in the grounding of the Project.
This initiative was started by Cabinet in November 2011 and rested on two fundamental principles. First, similar to how policies and legislation are assessed for constitutional value, there is a need to determine what effect the judiciary has on the lives of people through its jurisprudence, thereby giving those who make jurisprudence a chance to correct their errors. It is about understanding how the highest courts interpret the laws and policies made by other branches of the state and thereby reaffirming the strength and value of judicial activism, law reform and constitutional review. Chapter 2 of the Constitution read in conjunction with section 39(2) of the Constitution provides that courts when performing their interpretive function must be guided by the spirit, purport and objects of the Bill of Rights. This Project is intended to check how closely the jurisprudence has kept to this obligation and what the effect has been.
The Project is a joint venture by the Human Sciences Research Council (HSRC) and University of Fort Hare; following an open bid process, which ensured that all interested parties could participate and that the Project was not merely a state driven process. A diverse panel of 38 experts was constituted to ensure that all sectors of society have input on the assessment of judgements and conduct independent research. A reference group of experts has also been appointed to critique the reports of the panel, for added objectivity and quality assurance. The reason high courts were not included in the study is that the Minister felt the time and cost required would be restrictive; further the apex courts affects jurisprudence the most. The service provider had submitted an inception report in March and will be tabled in Parliament once approved by Minister. This report outlines the research methodology and angle which the Project intends taking.
The objective of the Project is to locate the jurisprudence of the apex courts within the developmental state as described by the National Development Plan and whether it advances the objects of the Bill of Rights. In the recent past, the state has had problems implementing the judgements of the courts and therefore the Project seeks to assess the capacity of the state to implement these decisions. The Project aims to identify a means for government to become aware of the judgements against it and react in an appropriate fashion. The Projects aims to review the cost of litigation, for access to justice.
The terms of reference have focused the research on the following areas: Assessment of the impact of decisions of the apex courts- by collating the judgements and reviewing the context on the ground. This is to establish jurisprudence’s impact on socio-economic rights in the fight against poverty and inequality and the extent to which South Africa’s evolving jurisprudence transformed and developed the common law and customary law as envisaged by the Constitution. It is the nature of courts that they can only pronounce on a matter if it is brought before it and therefore there should be a transformative agenda by all three branches of government to seize the courts with these issues.
The second pillar of the research is to conduct a study into the implementation of the decisions of the apex courts in order to assess the progress made and challenges encountered in implementation of these decisions, because this could affect the jurisprudence itself if judges are aware their decisions will not be implemented. Further, to decipher whether effective legislation, policies and government programmes are in place to implement judgements for a wider range of people besides litigants. It would also assess the capacity of the state to realise the outcomes of the decisions. The third pillar considers direct access to the Constitutional Court and factors which inhibit access to the apex courts. The Constitutional Court was intended to be a court of equity. However, the only way it can be reached is if the litigant is very wealthy or the matter is of public interest. The study aims to look into what obstructs individuals from directly accessing the court, such as the rules of court which require senior council representation and legislation which obstructs access. The final pillar is the speed with which cases are finalised. It was emphasised that the process does not impugn on the independence of the judiciary, because everyone has a direct interest in court’s performance and outputs. The research is aimed at determining where in the system the lag in case finalisation comes in.
Adv Skosana read from the National Development Plan, which states that although the Constitution lays out basic attributes, there is a need for the Judicial Service Commission to expand on the values which inform the ideal South African judge, including a progressive philosophy and understanding of the socio-economic context of South Africa. The National Development Plan requires the judiciary, to reverse inequality and poverty through effective leveraging of justiciable socio-economic rights; identifying capacity gaps for implementation of court decisions towards building a capable state and strengthening the rule of law; strengthening judicial governance by researching the requirement of independent judicial administration; and helping transform society by the judiciary ensuring that jurisprudence is complementary to legislation and policies in the area of transformation.
The presentation briefly touched on the methodology for research which correlates to the four pillars identified above, through the Inception report. Asides desktop academic research, the Project plans to engage with all relevant stakeholders in particular judgments and in all the specific areas of concern identified, including African customary law and socio-economic rights. The Committee had been presented with a document detailing the cases already identified by the service provider and when the midterm report is produced the Department will be better placed to fully brief the Committee on the outcomes. Ten landmark Constitutional Court cases covering health, education, housing, water and electricity, and customary law/gender/social security were cited.
The presentation further highlighted the progress to date which included a colloquium held in February 2014, where government was invited to present its input. Eminent persons including former Constitutional Court judges were present and the process resulted in the Inception Report. The Inception report was completed in March 2014 and details the methodology and themes for research. This report will be tabled in Parliament after the Minister has presented it to Cabinet, seeing as this is a Cabinet initiative. The midterm report is expected by October 2014 and will present the empirical research conducted up to that point and interactions with identified persons. The expected outcomes of the Project are to provide a platform for public discourse on jurisprudence. The final report is due in March 2015.
The Project was awarded to a bid of R10.3 million and spread over two financial years. A service level agreement has been concluded, properly vetted by state attorney who grounds the management of the project with the Department. If the Department had not engaged state institutions, then it would be paying far more to private parties. Engaging state institutions has double benefit, because the institutions also seek value for themselves and this will manifest through skills remaining within government and recognition as credible research institutions. Lastly, the value of the Project to society is priceless, because it deals with matters such as the transformative project, cost of litigation and African customary law.
In conclusion when the Project was presented to the Department, the debates were as vibrant as what has been experienced with the Committee and the Project remained a means through which government and the Department could pursue the transformative agenda.
The Chairperson thanked the Department for the presentation. It is often said that African cultures are diverse, complicating the regulation thereof. However, all African people in South Africa are Bantu and this is why there is a common trend in them all subscribing to uBuntu and this could be the greatest contribution to jurisprudence made by African culture. Section 39(2) of the Constitution requires customary law to be taken into account yet universities do not make the study of African customary law compulsory and this could lead to misinterpretation of the Constitution. The Project is an important opportunity to allow black students and young academics develop skills with the historically disadvantaged. He requested a list of the 38 people appointed to the research panel and particulars on community participation. While western jurisprudence is based on individualism, African jurisprudence is based on communalism. The law cannot be applied to people without acceptance on their part and if done this delegitimises the law. An example was the Communal Land Rights 11 2004’; the root of the problem with that Act reflected the differences in world views and people trying to regulate a legal system which they did not understand. During the struggle there had been talk of contextual theology, which meant that people from different parts of the world interpret the same religion against their various cultural backgrounds; this similarly applies to the law. However, there is a tendency to interpret law against a western background, therefore there was a need to have contextual interpretation of the Constitution. On accessing judgements, if a copy is not provided to the litigant, who may be aggrieved with their legal representatives handling of the case, how are the people’s right to access courts respected. Particularly where most of the legal practitioners do not speak the same language as the people they are to represent.
Mr Swart remarked that previously concerns were raised about the process, however those were in the initial stages; it was reassuring to note the clarification that an assessment rather than a review was taking place, particularly with the emphasis placed on the protection of the independence of the judiciary. Concerns about the budget which grew from R2.5 million to R10.3 million, were allayed in light of the expanded mandate particularly in assessing the implementation of the court decisions by government. Although the budget is warranted given the amount of work being done, were the 18 month timeframe and the midterm report on track? Did the Project intend to assess the way religion, broadly speaking came into play in the jurisprudence, because the majority of South Africans are religious in some sense? How did the select cases under ten clusters in the presentation tie into the other document received and the greater Project, especially because the ten clusters do not include important areas such as crime which will form part of the assessment. The views of the Chairperson remained respected and it was hoped that as the Project progressed more would be learnt about indigenous law.
Mr M Maila (ANC) said that he thought this was an exciting Project and will aid in realising the transformation of the legal system. It is a fact that access to Constitutional Court depends on the economic strength of the parties. If it was possible that the Constitutional Court could be accessed by individuals, interest groups and rural communities and if its judgements were adhered to then there would be fewer service delivery protests and South Africa would progress.
Mr Mpumlwana appreciated the scope of work to be done and what had already been done and agreed with the Chairperson’s remarks on the approach of the Project. Caution should be exercised with customary law as written or understood by courts during apartheid and misinterpretations which can arise therefrom. The Bhe v Khayelitsha Magistrate’s Court was a classical example, where the court failed to frame the issue as trusteeship which would be required by African law, rather than inheritance in the common law sense. This had been a misinterpretation based on a distortion of African law and lead to African law being labelled as discriminatory against women. It was hoped that the Project would go further than so called customary law and find out what is really involved in African law. Access to courts as currently structured is a business venture with lawyers involved as business merchants. Whereas in the African sense access to dispute resolution is free; to what extent can this be replicated? The investigation into direct access to the Constitutional Court was encouraging.
Ms Pilane-Majake remarked that it was hoped the Project goes through to conclusion and the country actually receives benefit from its outcomes. Who leads the process, because the presentation had indicated that the Project emanates from a Cabinet memorandum. Specifically, who has ownership of the documents produced as this has implications for pushing the process forward? The drive to have access to judgements was supported, because it is not fair for litigants to have to buy their own judgement from a company which produces law reports. The submissions received at the colloquium that the high court ought to be included was valid, particularly as high court judgements determining constitutional questions must be ratified by the constitutional court. As these processes are connected it would be better to do a comprehensive study now, rather than have to go back. On the categories of cases to be assessed, it is important to look at judgements which dealt with women and their advancement, so it can be understood how much apex court decisions helped the empowerment of women. The Bhe judgement referred to was applauded, as this set precedent for inheritance by girl children and the Constitutional Court remedied the unfair discrimination which they faced. Under the constitutional democracy it must be understood that customary law cannot be allowed to serve as grounds for discrimination against women and children. The key issue was choice and this was protected under the Women’s Charter of Effective Equality, an example where this would be important is termination of pregnancy. Jurisprudence which affects women needs to be assessed for the impact it has on the advancement of women and gender equality.
Ms M Mathapo (ANC) said that access to justice is very important, especially to rural communities. The presentation had made mention of indigent and unrepresented people; this is critical to rural women who face very contentious issues, therefore the work Project is vital. On the ten categories of landmark cases, what criteria were used in selecting only these cases, because others were equally important? She echoed sentiments on the language used in courts, because this is very important and it is not just English, but the use of technical wording such including Latin; certain courts only operate in Afrikaans and even attorneys have to pray in chambers for leave to argue in another language. On the recommendations to the Committee, it was hoped the Committees input will enhance the Project.
The Chairperson remarked that Mr Swart raised the important issue of progressive realisation of socio-economic rights. This as well as the ability of the state to provide for these rights within its budget must be taken into account and if courts make orders which exceed this ability people who hear of the favourable judgement may take advantage. It had been postulated that fewer than 46% of South Africans understood the Constitution and therefore legal education ought to be a top priority, otherwise people will see only the rights and not understand the need for progressive realisation. He reiterated Mr Mpumlwana’s point on interpretation, saying that in the western paradigm the focus is on ownership, hence community of property, but in the African paradigm the focus is on the community, therefore trusteeship over the common wealth of the family passes to the son and the translation of these concepts needs to be addressed. He agreed with Ms Pilane-Majake’s point on women empowerment and this was important because they are part of the most vulnerable. However, women are a diverse group and input from all sectors should be taken on board, especially that of rural women and not only to be debated by experts.
Adv Skosana replied that he had noted the concerns of the Committee and would relate them to the research panel as well as comment as he could at present. The list of landmark cases came about from the colloquium where it was decided that the Project should not be an academic exercise and the list has been updated to show the appreciation that the focus should not be on the most written about cases, but on cases which have a transformational element of themselves, to bring obscure cases which still affect people’s lives. An initiative has been undertaken by the Minister to visit universities with the Project, because the very research which government is paying to have done could be done by post-graduates who would benefit from the funds applied and having their work presented to the public rather than merely put into a library. Suggestions and concerns on language used in court and religious aspects will be conveyed accordingly and this will be facilitated by the service level agreement which is flexible to accommodate any valuable research. On who is leading the process, it started with Cabinet, which was factored into the Department’s program and therefore it must account to Parliament as part of its Annual Performance Plan. The ultimate outcome of the Project is the development of a program of action for government departments, which will be shared with the judiciary, on how to have a more effective jurisprudence. The problems with written accounts of customary law was noted; people did not have the opportunity to verify what was said or state that what was written was not what they intended to convey. Points about access to judgements will be taken forward as well as on progressive realisation of the socio-economic rights. The process is dynamic and would consider how the judgements have articulated the realisation of socio-economic rights and the extent to which the judiciary understand its constitutionally mandated role, against that of the executive in this arena. If the judiciary has faltered in this balancing exercise, it is the aim of the Project to make them aware of this so that they may correct the faults in jurisprudence and the implementation assessment will also aid with this. The reference group is currently being selected for appointment, from outside the government auspices, to bring a fresh view. The Department will be ready to fully brief Parliament once Cabinet has approved the inception report.
The Chairperson questioned if it would not be useful to have preliminary reports into the various focus areas, so as to encourage targeted engagement with all stakeholders, so that before the final report is produced those views will be taken into account. Was there provision for social scientists in the Project, because they have the expertise to assess the impact of the judgements?
The meeting was adjourned.