Constitutional Court & Supreme Court of Appeal jurisprudence assessment

Meeting report

Briefing by Department of Justice (DOJ) and Constitutional Development

Adv Jacob Skosana, Deputy Director General: Court Services, DOJ, clarified that the assessment done by the Department was not about the merit of decisions issued by the Constitutional Court or the Supreme Court, but rather on the impact and effect of the decisions on jurisprudence as described in the National Development Plan (NDP) such as eradicating inequality and poverty, building a capable and developmental state and strengthening judicial governance and rule of law. An interim report of the assessment was submitted to the Committee on 5 September 2014 and this report was based on 140 interviews done with stakeholders and government officials. The assessment was also aimed at establishing the extent to which socio-economic rights decisions of the Constitutional Court and Supreme Court of Appeal have advanced constitutional justice and its influence on social transformation to create a just and egalitarian state. The assessment also sought to understand the doctrine of separation of powers within the context of policy making, power vested in the executive branch of the state.

In conducting the research, theoretical and practical components were analysed, desk top analysis of landmark decisions of the court were undertaken and direct interviews of stakeholders were done. It was concluded on assessment that the court’s decisions have the effect of transforming lives of ordinary citizens. Irrespective of the power of this transformative role, the courts cannot implement their own decisions. Government though policy determined the impact of that transformation. A rigid interpretation of the doctrine of separation of powers created obstacles for the courts to make a difference in people’s lives.

The survey canvassed attitudes of citizens towards government’s ability to implement court decisions and deliver services to litigants and it found that the poor are not satisfied with the delivery of basic services and government’s performance. Further, the survey showed that there was slow implementation of decisions by government and the reasons may be lack of funds, capacity and those court orders often did not reach the affected departments to implement them.

On direct access to the Constitutional Court, arguments against the direct access showed that to have direct access would undermine the hierarchy of the court and the system of legal precedent. There is a real risk that the Constitutional Court may be flooded and overburdened with cases which could be handled by the lower court. In addition, it will be very costly to rearrange procedures of the Constitutional Court to accommodate the direct access. Arguments in favor of direct access are that it will reduce duration and cost of litigation and make it easier to access the ultimate authority of the land.

The survey also found that access to justice has been compromised by lack of knowledge and awareness of socio-economic rights and the cost of litigation are prohibitive to most litigants. It was therefore proposed that to mitigate the barriers to access to justice, the current rules and procedures on costs must be improved, that socio-economic rights cases should be deferred to alternative dispute resolution mechanisms, that litigants should have access to pro bono legal representation and direct access to the Constitutional Court.

The final report of these findings was disseminated to government departments and municipalities for comments. This final report and its recommendations will be dealt with in the context of the meeting between the Executive and the Judiciary which was held on 27 August 2015 and resolved that there should be transformation of the judiciary and the legal profession and that there must be regular engagement between the arms of state for co-operative governance.

Discussion

Mr S Swart (ACDP) asked on the legitimacy and impact of the process. He asked the Department to clarify on the cost of the project which was approved at R10 million and asked to what extent the government was complying with court decisions and why government institutions were not complying with court orders. He asked when the Committee can expect to get the final report which the presentation says has already been completed and whether the Committee can get the report before it was tabled in Parliament.

Mr W Horn (DA) agreed with Mr Swart and stated that the research has taken too long to complete since it started in October 2013 and was only supposed to be for 18 months. He asked when the Committee can expect the final report as the Minister had already said the final report was being discussed in Parliament whereas Advocate Skosana said the report is on its way to Cabinet. He asked why the final report was given to departments and municipalities first before it was seen by the Committee and why should the Committee receive a progress report when there was already a final report out there.

Mr M Maila (ANC) said he was worried that the report focused on the separation of powers of the Executive and the Judiciary but did not define the role of Parliament. Parliament has oversight on the implementation of court decisions. The emphasis has been on the independence of the Judiciary, however, if the Judiciary was not checked, it will end up taking over and running the country. The Judiciary also needed checks and balances.

Ms M Mothapo (ANC) thanked the Department for reminding the Committee that the report before the Committee was interim and not final. She worried however why the project was still incomplete five years after it started and after R10 million has been spent. She proposed that the survey should have assessed specialised courts such as the land court because land was very important to many South Africans. She noted that the assessment did not focus on rural court problems. Litigants who went to the Constitutional court are often rich unlike the specialised courts. She asked the Department to unpack and clarify the claim that strict and rigid interpretation of the doctrine of separation of powers created obstacles for the court’s obligation to make a difference in people’s lives.

Ms G Breytenbach (DA) agreed with the questions raised by Mr Horn and Mr Swart and asked about the level of implementation of court decisions. She wanted to know why court orders could not reach the implement department. She also asked why the Committee should waste time on an interim report instead of the final report.

The Acting Chairperson asked Advocate Skosana to clarify whether there was a final report and if there was, why was the Committee working on an interim report.

Adv Skosana clarified that the researchers had submitted a final report and it had been proposed by the Minister that the final report be submitted with a road map hence the delay in submitting the final report. The final report raised issues that have to be addressed by the departments and municipalities and that is why it was sent to the departments for their input.

The Acting Chairperson suggested that the report was perhaps called final because consultation with external parties had been concluded although there were still internal processes to conclude.

Mr K Mpumlwana (ANC) noted that it appeared Department had not finished its work on the report as there are gaps in the report.

The Acting Chairperson further stated that the Department may have termed the report final because the external institutions that it had commissioned to conduct the survey had submitted their findings.

had commissioned to do the research had submitted a final report in terms of the instructions issued by the Department to the external parties. In the final report, the researchers noted some gaps which will need more time and money to complete.

Mr Mpumlwana said the doctrine of separation of powers was very controversial as there is a conflict between Parliament who are the people’s representative and the Judiciary where judges are just appointed. The problem was that judges will make a decision but it was Parliament and the Executive that must enforce it and it may not be possible to implement. It therefore appears like it is the People versus Parliament with the Judiciary in the middle. The danger was that the Judiciary may end up usurping powers of Parliament such as it happened in Kenya and Namibia. Therefore the separation of powers must be guarded and the Department has not come out clearly on its stand on this for the Committee to comment on. He also pointed out that it was unfair to tax payers that the project has taken so long with a lot of money spent, but it still needed more money.

Dr M Motshekga (ANC) arrived.

The Acting Chairperson commented that no arm of the state should be undermined and processes like this guided the intention of the government to enrich the democratic process with one vision for the country. The interpretation of the transformation drive must be the same in all arms of the government and Parliament as the people’s representatives cannot be left behind - the decisions cannot be taken by the Judiciary alone. Oversight by Parliament over judgments and implementation is very important to achieve the transformation agenda. South Africa has ratified many international conventions without assessing the impact on implementation. For instance, an international convention will say every child has a right to shelter but it was impractical to expect the government to give every child shelter.

Dr Motshekga asked if the presentation before the committee came from work done by academics and whether the researchers analysed cost issues of litigation to assist Parliament. The work by the researchers will not empower the Committee as it seemed to have gaps. The Committee was not saying that the Judiciary misunderstood the doctrine of separation of powers, but he proposed that it may be premature for the Committee to take a position without the conclusive report.

The Acting Chairperson confirmed that the report is a work inI progress and the Department will add input to produce a final report based on the Committee’s comments.

Dr Motsheka proposed for the Department to go back to the drawing board and the Committee should be provided with the original report produced by the researchers.

The Acting Chairperson asked who commissioned the report.

Advocate Skosana replied that Cabinet had commissioned the report. The Department did not do any research but processed under authority from Cabinet.

Dr Motsheka pointed out that Parliament should not push Cabinet for the report. Parliament has capacity to do its own research and not rely on other processes elsewhere.

Mr Swart admitted that there was nothing that prevented Parliament from conducting its research. He was concerned that the report by the university might not be liked by the departments to which it was sent and may therefore be sanitised before it was presented to the Committee. He asked what Chief Justice Offices’ involvement was in the project. He emphasised that the Committee must see the final report as soon as possible.

Mr Horn reiterated that it must be made clear that the final report was concluded with tax payers’ money and if the Department needed more money, the Committee must see the original report by the researchers to allay fears of sanitisation. The delay in presenting the final report was dangerous and compounded fears. He took issue with comments made by the Acting Chairperson and Mr Mpumlwana on the separation of powers. He stated that this report should not be used as a platform to complain about the Judiciary which played a crucial role in checking that government was complying with the law. The members of the Committee should not use the report to shout populist rhetoric against the judiciary.

Ms Breytenbach asked if the Minister said the final report was given to Cabinet, why that report has not been given to the Committee. The only reasons for holding back the report may be nefarious.

Mr Maila said there was a sentiment that says Parliament should never talk about or raise any questions about the Judiciary. The Judiciary cannot be treated like a holy cow. He pointed out that there was a perception that the Constitutional Court was for the rich and the arguments for and against direct access to the Constitutional Court are valid.

The Acting Chairperson referred to Mr Horn’s comment and said her comment was read out of context. There should never be a time when there was no room for debate even on the conduct of the Judiciary. She asked Mr Horn to stop creating sides as to or for the judiciary as such comments make everyone’s job difficult. It was not about parties or furthering a political agenda. All the arms of the government must be put up to the same scrutiny.

Mr Mpumlwana stated that he had been misinterpreted in his comment. He pointed out that in practice, non-governmental organisations (NGOs) are the ones who petitioned the court, not ordinary people and those NGOs get funding from outside the country. Ordinary citizens do not have money or time to take issues to the Constitutional Court.

Mr Swart raised a point of order against the comment that the courts are running the country. The comment made by the Acting Chairperson was objectionable and the court’s actions are the rule of law.

Mr Mpumlwana said the impression that was given to the ordinary person was that once the government did something, an NGO which does not represent the people of South Africa will go to court to force the government to do something. It therefore appeared that the court was always over turning government action. Parliament must look at the boundaries of the court and the power of the Executive and people should not hide behind the claim that to say anything is to attack the Judiciary.

Mr B Bongo asked Advocate Skosana to facilitate the submission to the Committee of the final report. He shared Mr Mpuwana’s sentiments that the separation of powers must be part of the debate. Mr Swart had agreed in previous meetings that the court cannot write legislation. The case of the ICC created an impression of disorder and the Legislature was empowered by the people and the Judiciary should not undermine that role.

Dr Motshekga said the Committee has been made to made have uninformed discussions and that is why there was talk on transformation of the Judiciary.  The Committee must have a report that showed the results of an assessment on the impact of court decisions. He said the meeting was not a place to discuss the transformation of the Judiciary, but Members should not stifle free speech. It was a problem that other departments have the final report and not the Committee as the Committee has the mandate to discuss the issues that were found by the survey. He stated that civil society has added value to South Africa’s democracy and some NGOs obtain funding from the Human Rights Foundation and unless there was evidence of abuse by the NGOs, the Committee should not cast doubt on the work of NGOs. He asked Advocate Skosana to record the Committee’s concerns on not getting the final report and trusted that the Department will present the original and unsanitised report to the Committee.

Advocate Skosana said there was a meeting between Cabinet and the Judiciary which discussed the issues of separation of powers and how government can move forward together on this doctrine. This is why Cabinet had asked for a road map and mechanisms agreed in the meeting to be made part of the report. The Department will assess the findings of the report and will find a way to internalise the findings. He advised that he will report the concerns of the Committee, as well as the original final report to the Minister. There was a tender process for the project and a budget of R10, 3million was assigned to the project. A team of researchers was organised and the team compiled a report on their findings. In the findings however, they raised questions that have to be addressed by the departments and municipalities and hence the engagements. The Department will release the original report. The Judiciary was engaged in the survey and there was no need for suspicion. Since court orders against the government must be served on the Attorney-General, there may be delays in the system to get the order to the relevant department and all these system issues are part of the law reform process.

The Acting Chairperson said the answer brings an end to the discussion on the report of the assessment of the Constitutional Court and the Supreme Court of Appeal. She stated that as it appears there is more work to do on the ‘final report’ and perhaps the Department should not refer to it as final, but an interim report.

Mr Joseph Manuel, Provincial Head in the Office of the Chief Justice, said that all issues had been adequately covered and the office of the Chief Justice was fully involved in the process of the project.

Adoption of reports on the suspension of Magistrate S Monaledi and the draft notice on determining rates payable to Constitutional Court judges

The Acting Chairperson excused the team from the Department. She asked the Committee to vote on the adoption of the report on the suspension of Magistrate S Monaledi and the draft notice on determining rates payable to Constitutional Court judges.

The Committee voted unanimously and the reports were adopted.

Removal of item on Committee Agenda

Dr Motshekga resumed his duties as Chairperson.

The Chairperson expressed concern that the Deputy Minister alleged that the Committee failed to take a position on the suspension of the magistrates which was not correct. He asked the Committee to give a final say on the Committee’s position on the courtesy invitation to Pretoria by the President of the Magistrate’s Commission.

Ms Mothapo said she recalled that the Committee had concluded that the Commission should get more information on the meeting of 2012 to understand the context of the invitation from the Commission.

Mr Mpumlwana said the decision of the majority on the day was that the Commission should come to Cape Town as the invitation was not as innocent as stated in the letter.

The Chairperson advised the Committee to distinguish between the issue of the venue of the meeting and nature of the meeting. If it was a courtesy visit then it should be in Pretoria.

Mr Maila confirmed that the position is as has been stated by Ms Mothapo and the Chairperson concurred that the Committee will have to get more information of the meeting that happened in 2012 before it made a decision on the invitation.

The Chairperson also informed the Committee that the University of Pretoria had postponed the symposium the Committee had been invited to.

Mr Horn asked on why there was no presentation on the transformation of the law curriculum as was indicated on the agenda.

The Chairperson said that there was a suggestion from the Department that the Committee should write to the Council for Higher Education (CHE) on the issue of transformation of the law curriculum and not the Department although it was the Department that commissioned CHE to conduct the study.

Ms Breytenbach asked why the issue which was on the agenda was not brought up in the presence of the department offices when they appeared before the Committee.

The Secretary to the Committee indicated that the Department had informed him to write to CHE on the day of the meeting.

Ms Breytenbach found the conduct of the Department unacceptable and said the Department was answerable to the Committee.

The Chairperson reiterated that the Committee must improve its communication with the Department to avoid speculating on the Department’s reasons.

Mr Horn pointed out that the Committee appeared to be working haphazardly. Previously there was a schedule which Mr Horn obtained from Mr J Selfe (DA). He urged the committee to come up with a schedule in advance of a quarter, because the meeting the Committee just had, had been a complete waste of time and this was the second time this year that the Committee has met and not done anything concrete.

The Chairperson said the Committee did not issue any unapproved programs and does not distribute it through individual members. He said the Committee does come up with a schedule, but attendants sometimes asked for postponement which is beyond the Committee’s control. The Committee should agree to come up with the agenda for the next quarter.

Ms Majake said the Committee must start giving attention to bills and legislation for amendments which it has to work on this year and not get distracted by side issues. There are about 25 laws to amend and there must be time to work on them. There was a backlog and it must be cleared.

The Chairperson asked what determined the desirability of a law to be given priority before the Committee.

The Committee Secretary replied that the Committee issues an advert of the laws to amend and there is no specific basis on the priorities.

The Chairperson said that the schedule of laws to discuss may be a political decision and the Secretary may not be in a position to address it. The Committee agreed to come up with the program to ensure that the laws are given attention.

The Chairperson thanked everyone for attending and the meeting was adjourned.