Focus: The Constitutional Court's 1999 Term

South African Journal on Human Rights ISSN: 0258-7203 (Print) 1996-2126 (Online) Journal homepage: http://www.tandfonline.com/loi/rjhr20 Focus: The Constitutional Court's 1999 Term Andrew J Burrow , Jeremy Sarkin , Esther Steyn , Dirk van Zyl Smit , Ron Paschke , Ronald Louw , Mohamed Alli Chicktay , Penelope Andrews , Shireen Motara , Stuart Woolman , Allen Leuta , Kirsty Mclean , Mabatho Nteleki , Jack Phalane , Andrew Smith & Jonathan Klaaren To cite this article: Andrew J Burrow , Jeremy Sarkin , Esther Steyn , Dirk van Zyl Smit , Ron Paschke , Ronald Louw , Mohamed Alli Chicktay , Penelope Andrews , Shireen Motara , Stuart Woolman , Allen Leuta , Kirsty Mclean , Mabatho Nteleki , Jack Phalane , Andrew Smith & Jonathan Klaaren (2000) Focus: The Constitutional Court's 1999 Term, South African Journal on Human Rights, 16:2, 283-371, DOI: 10.1080/02587203.2000.11827597 To link to this article: https://doi.org/10.1080/02587203.2000.11827597 Published online: 02 Feb 2017. Submit your article to this journal Article views: 6 View related articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=rjhr20 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM REGULATING THE NEW NATIONAL ECONOMY Ex PARTE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA: IN RE CONSTITUTIONALITY OF THE LIQUOR BILL I INTRODUCTION As one learns to expect in constitutional law, matters of the greatest importance for a country's constitutional, political and economic life often arrive at court dressed in the drabbest factual garments. Putting this consideration aside and at the risk of exaggeration, the core issue in the Liquor Bill case was nothing less than the continued economic unity of South Africa. Against the backdrop of the creation in recent years of the new economy (characterised by the advent of black-empowerment initiatives, public-private partnerships and efforts at privatisation of state-owned assets), the national government's much-needed powers of regulation were about to be tested and defined. What the Liquor Bill 131 of 1998 - introduced in the National Assembly on 31 August 1998- sought to achieve was summarised for the Court by Cameron AJ in the following terms: (a) the prohibition on cross-holdings between the three tiers involved in the liquor trade, namely producers, distributors and retailers; (b) the establishment of uniform conditions, in a single system, for the national registration of liquor manufacturers and distributors; and, in a further attempt at establishing national uniformity within the liquor trade, (c) the prescription of detailed mechanisms to provincial legislatures for the establishment of retail licensing mechanisms. 1 The Bill sought to achieve these objects by dividing the liquor trade in South Africa into three components: production, distribution (or wholesale) and retail sales, and by requiring that any market participant be registered with the appropriate authority in one of the three categories. Two singular features of the proposed regime were, first, that no applicant could apply for registration in more than one of the three industry components and, second, that while registration for production and distribution would be the responsibility of a national entity, the National Liquor Authority, whose members would be appointed by the Minister, registration for retail sales would be the responsibility of provincial liquor authorities. Even in this case, however, the Bill set out in some detail the duties of the provincial authority when considering retail I Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bi/12000 (I) SA 732 (CC) para 69 (Liquor Bill). 283 284 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM sale licence applications? The clear intention behind these measures, as stated in the Minister of Trade and Industry's affidavit, was to allow new entrants into the market, particularly from previously disadvantaged communities, by preventing the excessive concentration of economic power in the hands of the few. 3 When the Bill was sent to the President for his assent, he referred it back to the National Assembly for reconsideration in accordance with s 79(1) of the 1996 Constitution,4 citing reservations about the Bill's constitutionality. After having reconsidered the Bill, the National Assembly returned it to the President, with no amendments having been made. For the first time under the 1996 Constitution, the President then invoked his power under s 84(2)(c) to send a Bill before the Constitutional Court for a decision on its constitutionality. On the invitation of the President of the Court, the Western Cape government stated that it wished to be represented and to present affidavit evidence as to why it was not necessary that national legislation regulate the liquor trade in pursuit of any of the goals ins 44(2) of the 1996 Constitution. 5 The Minister of Trade and Industry, as representative of the government of the Republic of South Africa, also wished to be represented and to supply evidence of the necessity of such legislation in light of the requirements of s 44(2). This note will examine the Liquor Bill case in the context of the need for economic transformation in South Africa and will suggest how its outcome, with its broad reading of national regulatory powers, might facilitate that transformation. Furthermore, anyone familiar with US constitutional jurisprudence must be struck by the similarities in the issues raised, in reasoning, and even in the occasional turn of phrase, between the Court's judgment in this case and that of Chief Justice Marshall in the early, and justly famous, case of Gibbons v Ogden 6 before the US Supreme Court. With this in mind, a comparative review will be undertaken to see whether the outcome in that case, albeit in a very different constitutional context, can tell us anything about what to expect from the outcome of the Liquor Bill case. 7 2 3 4 5 Ibid para 79. Ibid para 34. Constitution of the Republic of South Africa Act 108 of 1996 (1996 Constitution). This section provides: (2) Parliament may intervene, by passing legislation in accordance with section 76( I), with regard to a matter falling within a functional area listed in Schedule 5, when it is necessary(a) to maintain national security; (b) to maintain economic unity; (c) to maintain essential national standards; (d) to establish minimum standards required for the rendering of services; or (e) to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole. 6 6 L Ed 23 ( 1824). All references to this case in this note are to the extracts of the opinion reproduced in G Gunther Constitutional Law 12 ed (1991) 94. 7 Apart from the core issue of whether or not the Liquor Bill was constitutional, the decision also had to grapple with novel problems concerning the scope and purpose of the referral procedure itself. This note will not address those issues. (2000) 16 SAJHR 285 The central issue before the Constitutional Court, simply put, was the capacity of the national legislature (Parliament) to assert control over certain aspects of the economy which are potentially also subject to provincial control under Schedules 4 and 5 of the 1996 Constitution. Specifically, the case pitted the national legislature's (concurrently held) competence with regard to trade and industrial promotion (Schedule 4A of the 1996 Constitution) against the exclusive legislative competence held by provincial governments with regard to liquor licences (Schedule 5A of the 1996 Constitution). 8 Setting aside, for purposes of this note, the procedural challenge to the Bill, the essence of the constitutional challenge was that the provincial legislatures were excluded from having any say in the licensing of producers and distributors and that too much national intervention in retail licensing was permitted under the Bill. The Province contended that the Bill's chosen regime intruded upon the Provinces' exclusive legislative domain in the 'functional area of "liquor licences" '. 9 The Constitutional Court, per Cameron AJ, held that in respect of the production and distribution aspects of the liquor industry, the regime established by the Bill was constitutional in that the object sought (the prohibition on cross-holdings in the liquor trade) fell within the national legislature's competence to regulate trade. The means chosen to effect this (the registration or licensing system) was a 'necessary' measure to 'maintain economic unity' in terms of s 44(2) of the 1996 Constitution. Regarding the Bill's measures pertaining to the retail sale aspect of the trade, however, the Court held that, as this licensing competence clearly fell within the exclusive ambit of the provincial legislatures, and as the Minister had not persuaded the Court of the necessity of national regulation in this sphere, they were unjustified. To this extent, the Bill was held to be unconstitutional. II THE COURT'S ANALYSIS OF NATIONAL REGULATORY POWERS Before delving into the Court's substantive analysis of the various strands of argument, it is important to note one highly satisfying aspect of Cameron AJ's judgment in this case: the kind of historical and economic analysis he endorsed. It is possible that a decision based on narrow legal principles which ignored either the country's (and the liquor trade's) racialised past or the need for an integrated economy in the future, might have had disastrous consequences. Noting that 'liquor licensing has a shameful history in this country's racial past', and that 'liquor acted as a means of social control since it was an offence for a black person to be 8 'The question', stated Cameron AJ, 'is whether the substance of this legislation falls within the excluded field of "liquor licences", in which case the justifications itemised in s 44(2) [of the 1996 Constitution] will have to be shown; or whether it falls within a permitted competence of Parliament even without such justification.' Liquor Bill (note I above) para 68. 9 Ibid para 36. 286 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM in possession of liquor outside the designated areas', 10 the Court detailed the various measures by which the production, distribution and sale of liquor had been controlled along racial lines. 11 The Minister of Trade and Industry asserted, no doubt with this background in mind, that the objectives of the Bill included 'erasing the history of the use of liquor as an instrument of control over most of the population as part of the policy of apartheid', and 'making the liquor industry more accessible to historically disadvantaged groups' . 12 It is easy enough to understand that against the background mentioned above, the ownership interests in all three areas of the liquor trade (production, distribution and sale) are predominantly in the hands of white capital. At least as much as the need for continued (and improved) economic unity in the country, it was the need to ensure more equal participation in all spheres of the economy that made the outcome of this case so vital. The need for equal participation is also, in my view, the driving force behind the national government's concern to have certain elements of the economy regulated at the national, as opposed to the provincial, level. Cameron AJ, invoking the first provision of the 1996 Constitution, immediately began his substantive analysis with an affirmation of the fact that South Africa is 'one, sovereign, democratic State'Y Then, in a move reminiscent of the great Chief Justice of the United States, John Marshall, whenever he was about to limit States' rights or condone an exercise of federal power, Cameron AJ quickly placated the provinces by pointing out that this 'unitarian emphasis' 14 is not absolute in that governmental power in South Africa is distributed between the national, provincial and local spheres of government, and that the provinces are allocated specific legislative areas in which they have either concurrent competence (shared with the national government) or exclusive competence. Not even the later mention of the Court's statement in the First Certification judgment to the effect that the inclusion in the 1996 Constitution of a category of exclusive powers gave the provinces more powers than they had under the interim Constitution, 15 however, could disguise the fact that, fundamentally, the provinces are in a relatively 10 Ibid para 31. II The judgment of Cameron AJ begins its investigation with the coming into being of the Union of South Africa in 1910. A brief review of South Africa's history before Union, however, confirms that the use of liquor as a means of social control, had roots even before that date. Frank Welsh, discussing the deteriorating political conditions for blacks in the Cape during the late nineteenth century in A History of South Africa (1998) 294, says of a disenfranchisement measure- the 1887 Registration Act- that it 'was the first act of a long-drawn-out destruction of non-white political rights, continued in 1898 with the Liquor Act, which banned the sale of alcohol to "Aboriginal Natives", while allowing it to Coloureds'. 12 Liquor Bill para 31. 13 Ibid para 40. 14 Ibid para 40. 15 Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution). See Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) para 335, cited in Liquor Bill (note I above) para 49. (2000) 16 SAJHR 287 weak position, and that the division of governmental power in South Africa is heavily weighted in favour of central government. After setting out the various allocations of powers and functions to national and provincial governments, Cameron AJ came to the conclusion that the 'list of exclusive competences in Schedule 5 must therefore be given meaning within the context of the constitutional scheme that accords Parliament extensive power encompassing "any matter" excluding only the provincial exclusive competences' . 16 With a few more steps, the end result would almost be in sight: the 'new philosophy' 17 of co-operative government notwithstanding, provinces and their allocation of certain legislative competences would not be allowed to stand in the way of the national government's important function of ensuring a unitary and more distributive economy. How would the Court reconcile the concurrent competences under Schedule 4A with respect to trade and industrial promotion with the exclusive provincial competence under Schedule 5A with regard to liquor licences? And what would it make of the Bill's apparent recognition of the national/provincial distribution of power in its division of the liquor trade into three distinct categories regulated by either national or provincial authorities? Noting that the legislative competences in Schedules 4 and 5 of the Constitution are designated 'functional areas', Cameron AJ made the important jump to evaluating the constitutional legitimacy of the Bill by the appropriateness of different kinds of action by either national or provincial spheres of government. 18 This inevitably involved a valuebased adjudication which, although enabled or assisted by the detailed provisions of s 146 of the 1996 Constitution regulating conflicts between national and provincial legislation, was still a bold undertaking considering that the objects of the evaluation are governmental authority, on the one hand, and vital aspects of the national economy, on the other. In giving meaning to the functional area of 'trade', included in Schedule 4 to the 1996 Constitution, the Court thus adopted a broad definition that recognised the original connotation of travel included in the term and its tendency to cut across provincial boundaries. The Court also accepted that the only limitations on the term (and thus on the functional area) were those that were to be found in the 1996 Constitution itself; there were no inherent limitations which limited the national legislative competence either geographically or to certain aspects of the trade. The result of this line of reasoning was that, by their nature as nationally based activities, the production and distribution of liquor 16 Liquor Bill para 47. 17 Ibid para 40. 18 'The Constitution-makers' allocation of powers to the national and provincial spheres appears to have proceeded from a functional vision of what was appropriate to each sphere and, accordingly, the competences itemised in Schedules 4 and 5 are referred to as being in respect of "functional areas". The ambit of the provinces' exclusive powers must, in my view, be determined in the light of that vision.' Ibid para 51. 288 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM were more amenable to national regulation (by Parliament) and were thus held to fall within the concurrent competences of 'trade' and 'industrial promotion'. The 'necessity' element of s 44(2) was provided by the Minister's ecooomic rationale that fragmentation of the industry, as well as inter-provincial 'arbitrage' should be avoided. 19 The Court, however, recognising that 'the substance of a particular piece of legislation may not be capable of a single characterization only', 20 then ·determined that the Constitution made provision for exclusive provincial legislative power only in regard to matters that did not extend beyond the provincial boundaries. In this way, it could hold that retail sales, which by and large were wholly internal matters, clearly fell within the Schedule 5A exclusive competence of 'liquor licences'. To the extent that the nascent legislation tried to regulate this aspect of the trade, it was held to be unconstitutional. It is submitted that not only is this finding consonant with the internal logic of the decision, but it is also correct as a matter of broader constitutional interpretation and public policy. It seems perfectly acceptable that provincial governments, which are by and large more in touch with local cultural and religious sensitivities and needs, have the ability to regulate the sale of liquor. By the same reasoning that was used to hold that retail sales were an exclusive provincial competence, production and distribution, precisely because they have a national (and international) focus, could not be conveniently encompassed by this functional area. 21 III COMPARATIVE AND HISTORICAL REFLECTIONS This brings us to the comparative section of this note. Although it is worth bearing in mind the admonition that foreign, and particularly American, constitutional case law will frequently be irrelevant to the development of South African constitutional jurisprudence, 22 it is obviously worth examining such jurisprudence when its consequences have been fully fleshed out after 175 years and the judgement of history can be examined. In this context, this note will briefly examine the US Supreme Court's decision in Gibbons v Ogden. 23 Under art 1 of the 19 Ibid para 77. 20 Ibid para 62. 2I Without keeping the social dimension of national regulation in mind (ie the need to ensure diversification of market participants and encourage, in particular, black empowerment), it could be claimed that Cameron AJ too readily grouped production and distribution together. Whereas distribution almost invariably is a national undertaking, most liquor production, by his own admission, is contained within a few provinces (ibid para 72). Why should the Western Cape government, after all, not know its own wine producers (who are unlikely to be operative in other provinces) best? It is submitted that in light of South Africa's specific history, the national legislative body has been given the task of opening up the economy, and it is this body which can 'produce the goods', so to speak, more effectively than the government of the Western Cape or of Gauteng for that matter. This would seem to be an implicit premise of the decision. 22 Richard Blake 'The Frequent Irrelevance of US Judicial Decisions in South Africa: National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 (I) SA 6 (CC)' (1999) 15 SAJHR 192. 23 Note 6 above. (2000) 16 SAJHR 289 US Constitution, Congress has the power to 'regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes'. This explicit delegation of power to the federal government is important because the US constitutional division of authority (between the United States and the several States) is the opposite of that in South Africa: the so-called 'commerce clause', the Tenth Amendment (1791), clearly states that 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' In other words, federal power was, at the beginning in any event, rather more limited than that of the States. Gibbons v Ogden was the first time the Supreme Court had had to interpret this rather obscure clause. The respondent in the case operated a ferry in New York and New Jersey under a monopoly granted by the New York legislature. When the appellant began operating a rival ferry service, licensed under a federal statute, in the same waters, a New York court granted the respondent an injunction barring the appellant from operating his ferries in New York. Against the background of deteriorating relations between all the involved States (including the passage of legislation authorising the seizure of vessels licensed in New York), the case eventually found its way to the Supreme Court under the Chief Justiceship of John Marshall. The essential questions to be answered were as follows: what was interstate commerce and what activities did it cover? To what extent could Congress regulate this commerce, however defined, and what did this delegation of power do to the States? 24 Marshall, in much the same way as Cameron AJ would do 175 years later, began by looking to the object for which a specific power was given? 5 Once it was established that this object was 'commerce', for which Marshall proceeded to give an expansive definition, covering all forms of trading and 'commercial intercourse' (and clearly including navigation), he was then able to define the power to regulate it in a similarly broad manner. In his eloquent prose, he asked and answered his own question thus: [We] are now arrived at the inquiry- What is this power? It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. 26 Congress could exercise this power wherever its object, in this case commerce, was to be found. That commerce, and navigation in 24 For this summary of the case and the constitutional questions it raised, I am indebted to Gunther (note 6 above) 94 and to RG McCloskey The American Supreme Court 2 ed (rev ed S Levinson, 1994) 45. 25 Rejecting the notion that the commerce clause should be restrictively interpreted, Marshall held that if, 'from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.' Gibbons v Ogden, as reproduced in Gunther (note 6 above) 95. 26 Ibid 96. 290 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM particular, often cut across State boundaries was obvious and the power to regulate it could thus also be exercised across these boundaries and in the interior of the States. The only exception, the Court reasoned, was commerce that was entirely internal in a given State. That remained beyond Congress's power to regulate. Once again, the similarity between Marshall's reasoning and that of Cameron AJ is striking: the latter also held that matters which were by nature provincial or non-national fell to be regulated by the provincial legislatures. Included in this category were micro-manufacturers and retailers 27 - just the sort of enterprises Marshall might have concluded were subject to the States' reserved powers. The result in Gibbons was that the New York law was held to be invalid and the monopoly was ended. Of course, the vast constitutional differences between the early United States and modern South Africa must be considered. What is remarkable in the comparison of the two cases is precisely that, despite the inverse starting points regarding national regulatory power, they managed to arrive at similar results, justifying exercises of federal/central power at the expense of States' rights and provincial powers. How did this occur and what can Gibbons tell us about what to expect in the wake of the Liquor Bill case? The US Constitution had been adopted with the experience of competing States fresh in the mind of the drafters. In fact, the need to end inter-state feuding and tariff wars was recognised as vital to the continuation of the Union. With Gibbons, the steamboat business rapidly expanded and helped ensure the subsequent economic development of the United States. Had the Supreme Court decided that the federal states were entitled to regulate such matters by giving the commerce clause an exceedingly narrow ambit, it is difficult to imagine America today bearing any resemblance to what it is: a great economic power. 28 Although the direct relevance of Gibbons may be difficult to deduce at first glance, the following points should be considered. First, South Africa's background is not one of inter-provincial strife, but it is certainly one of huge economic inequalities and lack of access to economic opportunity for the majority of people. Second, a monopoly, such as was operative in the dispute underlying Gibbons, is itself a kind of economic inequality which hampers future economic development and which governments, even today, are loathe to tolerate. Third, with the current provincial distribution of power, it is not inconceivable that in the future, provinces may be tempted to interfere with the trade of neighbouring provinces in some measure. However, the comparison operates at a deeper level than these similarities: both inter-state economic strife and socio-economic disparities, are by their nature national issues requiring national intervention and regulation. It is therefore welcome 27 Liquor Bill paras 80 and 83. 28 JE Smith John Marshall: Definer of a Nation (1996) 481, provides a comprehensive account of how the decision rapidly helped fuel economic expansion and, eventually, political unity. (2000) 16 SAJHR 291 that the Court has recognised 'that where a matter requires regulation inter-provincially, as opposed to intra-provincially, the Constitution ensures that national government has been accorded the necessary power, whether exclusively or concurrently under Schedule 4, or through the powers of intervention accorded by s 44(2)'. 29 Thus, the differing constitutional contexts notwithstanding, both courts recognised the over-arching political and economic imperatives involved and ensured that, to the extent provided for in the respective constitutions, the central governments were able to carry out their mandates. 30 IV CONCLUSION What then do we make of the Liquor Bill case? While this note may have seemed to suggest at times that the validation of national power is a goal to be pursued at all costs, and that this was what the Court held, this notion should be corrected. The Court was clear that it would assign meanings to exclusive provincial legislative competences every bit as full and expansive as it did to (concurrent) national powers, within the confines of the 1996 Constitution. Furthermore, it would apply the same functional approach to determining what was appropriate to provincial regulation. Cameron AJ also accepted the contention by the Western Cape government that differences between provincial regulation in the appropriate areas were in fact desirable. 31 However, it should be recognised that the social and economic ills to be addressed by government in South Africa are of such proportions that only regulation at the national level will, in many instances, be sufficient. While the government's ability single-handedly to create jobs and opportunity in the liquor industry may be limited, by ensuring that the relevant market participants, producers and distributors, are subject to a uniform, national system of regulation, it will enable this industry to grow in a relatively unencumbered manner. Furthermore, new market entrants on a national level will not face the daunting prospect of multi-province licensing ordeals. If Gibbons v Ogden was destined to become known as 'the emancipation proclamation of American commerce', 32 then the 29 Liquor Bill para 52. 30 Ibid para 82. 31 Of course, Gibbons is nowhere mentioned in the judgment of Cameron AJ and we might want to speculate about this. Frankly, I find it hard to imagine he has not read the decision. If this is so, why then not mention it? This would admittedly be a rather unusual use of foreign case law, as is shown by the trouble the present author has had in justifying the comparative exercise. There are at least two potential problems: first, the possibly grating idea of a South African court 'following' American jurisprudence in such a sensitive area as socio-economic policy; and, second, the narrow way in which we usually view the comparative enterprise. At present I will not take these ideas any further, but I believe they are both fruitful avenues to explore in the future. Of course, if I am wrong and Cameron AJ has never heard of Gibbons, then my thesis, such as it is (ie, that two very different Courts, perceiving similarly broad problems, will adopt similar approaches), is possibly strengthened. 32 C Warren History of the American Bar (1911) 396, quoted in Smith (note 28 above) 473. 292 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Liquor Bill case may in time become known in South African constitutional jurisprudence as the new national economy's opportunity charter of distributive justice. ANDREW J BURROW* Legal Assistant to Judge Gaetano Arangio-Ruiz Iran-United States Claims Tribunal, The Hague THE CONSTITUTIONAL COURT'S BAIL DECISION: INDIVIDUAL LIBERTY IN CRISIS? S V DLAMINI I INTRODUCTION Long, long ago, a Constitution to guarantee, for an interim period, rights for all in the new South Africa was adopted by the last Parliament of the old minority regime.' Many, even those who had been skeptical about Utopian claims for constitutionalism, were impressed by the rights guarantees contained in the interim Constitution. They were equally pleased when most of these guarantees were repeated in the 1996 Constitution. 2 They literally and figuratively clutched breast-pocket versions of the Constitution to their hearts and shared their newfound belief in constitutionalism with their colleagues, their students and their friends. Lovers of liberty, equality and human dignity were further emboldened to hail the new dispensation by early decisions of the new Constitutional Court to abolish the death penalty3 and corporal punishment,4 and to deny the constitutionality of reverse onus provisions in statutes creating criminal offences. 5 Especially heartening about these early decisions was the demonstration of a firm commitment not to be swayed by contrary popular opinion, but to apply fearlessly the wide range of rights that the Constitution manifestly guaranteed. • Thanks to Felco Szabo and Tom Ginsburg for comments on an earlier version of this note. All mistakes are, of course, my own. I Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution). 2 Constitution of the Republic of South Africa, Act 108 of 1996 (1996 Constitution). On the 1996 Constitution and its drafting see, further, Jeremy Sarkin 'Innovations it) the Interim and 1996 South African Constitutions' (June 1998) The Review 57; 'The Development of a Human Rights Culture in South Africa' (1998) 20 Human Rights Q 628; 'The Drafting of the Final South African Constitution from a Human Rights Perspective' (1999) 47 American J of Comparative L 67 and 'The Effect of Constitutional Borrowings on the Drafting of South Africa's Interim Bill of Rights and the Role Played by Comparative and International Law in the Interpretation of Human Rights Provisions by the South African Constitutional Court' (1998) I J of Constitutional L 176. 3 S v Makwanyane 1995 (3) SA 391 (CC). 4 S v Williams 1995 (3) SA 632 (CC). 5 SeeS v Zuma 1995 (2) SA 642 (CC), S v Bhulwana 1996 (I) SA 388 (CC), S v Mbatha 1996 (2) SA 464 (CC), S v Julies 1996 (4) SA 313 (CC), Scagel/ v Attorney-General. Western Cape 1997 (2) SA 368 (CC), S v Coetzee 1997 (3) SA 527 (CC), S v Ntsele 1997 (II) BCLR 1543 (CC) and S v Mello 1998 (3) SA 712 (CC). (2000) 16 SAJHR 293 Many, even academic lawyers, overlooked the early indication by a majority of the Constitutional Court in S v Mhlungu 6 that it would readily depart from the literal meaning of the words of the Constitution if it believed that there were compelling reasons for doing so. 7 Or, if the judgment was noted disapprovingly, it was passed over as the product of a new court that was still settling down and that had been carried away by its enthusiasm for the wider values that the Constitution undoubtedly appeared to guarantee. At issue in Mhlungu was the interpretation of an unusual interim provision; many hoped that this sort of aberration would not happen again under the 1996 Constitution. Moreover, the departure from the text was, so it appeared, inspired by a deep commitment to the value of individual liberty, an impression that allowed some scholars to come to the defence of the majority decision in Mhlungu and the style of constitutional interpretation it represented. 8 A scant four years after Mhlungu, the Constitutional Court has again overlooked the clear meaning of words- not only in the Bill of Rights but also in the legislation it was evaluating. It has done so not to protect liberty but to allow the limitation of the most fundamental of liberty rights. A unanimous Court judged as constitutionally valid, legislation that allows- with qualifications, but nevertheless allows- the violation of the right to bail and therefore the continued detention of persons who are suspected but have not been convicted of any criminal offence. In doing so, it appears to have succumbed to the panic and hysteria that exists about crime in South Africa. 9 How did the Constitutional Court come to deal with current bail legislation in the way that it did? We propose to address this question by analysing the decision in S v Dlamini; S v Diad/a; S v Joubert; S v Schietekat 10 (Dlamini) in some detail. The scene is set, first, by describing the current social context of crime and fear of crime and, secondly, by outlining South African bail law and the most recent legislative amendments. We then describe the grounds of constitutional attack in Dlamini and note some aspects of the judgment that seem to us to be unproblematic. Detailed attention is then paid to the three provisions that seem to us to be open to constitutional attack. They are the allowance made by the legislation for community reaction to possible bail decisions; the provision for denying bail in serious cases; and the enactment on the admissibility at a subsequent trial of the evidence that accused persons give at their own bail hearings. In this analysis, we consider what appear to us to be the major difficulties of this judgment, 6 1995 (3) SA 857 (CC). 7 See Eduard Fagan 'The Longest Erratum Note in History' (1996) 12 SAJHR 79. 8 Dennis Davis 'The Twist of Language and the Two Fagans: Please Sir May I Have Some More Literalism!' (1996) 12 SAJHR 504 and Jacques de Ville 'Eduard Fagan in Context' (1997) 12 SAPL 491. 9 Jeremy Sarkin 'Panic Over Crime Could Poison South Africa' Democracy in Action (March 1996) 17. 10 1999 (4) SA 623 (CC). 294 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM namely the Court's deference to public perceptions about the crime problem in South Africa and attitudes towards bail, and the mode of interpretation applied to the legislation that it was required to examine. We attempt to show how these two factors combined to produce the result that they did and analyse the specific outcomes that we believe to be problematic. Finally, we suggest that the conclusions reached by the Court on the bail legislation are not only destructive of the fundamental values of the Constitution that the Court has purported to uphold, but are also not the solution to South Africa's crime problem. 11 II CRIME AND THE FEAR OF CRIME The issue of crime obviously played an influential role in the reasoning of the Court in Dlamini. In the words of the Court: over the last few years our society has experienced a deplorable level of violent crime, particularly murder, armed robbery, assault and rape, including sexual assault on children. Nor can there be any doubt that the effect of widespread violent crime is deeply destructive of the fabric of our society and that accordingly all steps that can reasonably be taken to curb violent crime must be taken ... it is against this background that we should assess the ... [baillegislation]. 12 Steven Donzinger, commenting on the disproportionate role that fear of crime plays in determining American criminal justice policy, states: There is nothing more viscerally disturbing than the fear of being a victim of violent crime. Much of that fear has a legitimate basis in fact, for violent street crime is a real threat, particularly in the inner city. Yet fear of crime rather than crime itself drives much criminal justice policy in the United States. Fear of crime and crime are not the same thing. Policies based upon fear are not the same as policies based upon fact. 13 These comments are equally applicable in South Africa. One factor that accounts for the difference between the fear of crime and its incidence is the way in which crime is portrayed by the media. Newspaper headlines and bloody front-page pictures present a distorted view by focusing on particular violent incidents. People become scared when they personalise these stories in their minds and fear that they may be next. Individuals (including judges) thus tend to exaggerate the crime problem. Crime in South Africa did increase dramatically in 1990, the year when the transition to democracy began. 14 Levels of crime increased further across the board between 1990 and 1994. From 1994 to 1998, however, the per capita incidence of violent crimes reported by the police either remained unchanged or decreased. 15 These statistics, it is true, may be under11 See also Esther Steyn Witnesses in South Africa. the Stepchildren of the Criminal Justice System (unpublished LLM Dissertation, University of Cape Town, 1999) 56-74. 12 Dlamini para 67. 13 S Donzinger (ed) The Real War on Crime - The Report of the National Criminal Justice Commission (1996) 97. 14 M Shaw Crime and Policy in Post-Apartheid South Africa (1998) 24. 15 The Incidence of Serious Crime January to December 1998 Semester Report I /99 South African Police Services (SAPS), Crime and Information Analysis Centre (CIAC) 3. (2000) 16 SAJHR 295 reporting the actual amount of crime, but as the primary 'hard facts' available they need to be taken seriously. Certainly, both the question of what these figures mean and the wider issue of what weight the Constitutional Court should attach to crime trends require careful attention before any conclusions can be drawn from them. This is not to deny that current crime rates are alarming and that victims, particularly of violent crime, are not receiving the support and protection that are needed. III SOUTH AFRICAN BAIL LAw South African law has long recognised the procedural device of bail as a means of striking a balance between the liberty interest of a person detained on the suspicion of having committed an offence and the interest of society that requires that such a person should stand trial. 16 Underlying the need for bail is the presumption of innocence, which requires that an innocent person should not be deprived of his or her liberty. 17 Internationally, bail has long been recognised as an expression of the fundamental principle of presumption of innocence. 18 This principle has been recognised historically in South African common law, in the law of other major jurisdictions 19 and in internationallaw?0 As a result of this presumption, courts have traditionally granted bail whenever possible and tried to lean in favour of the liberty of the accused, provided that it is in the 'interests of justice' to do so. 21 This approach was robustly expressed by Van Zijl AJP inS v Budlender: 22 16 SeeS v Budlender 1973 (I) SA 264 (C), 269. 17 See J Vander Berg Bail~ a Practitioner's Guide (1986) 1: Pre-trial incarceration presents a special problem. An accused is being deprived of his liberty in circumstances where no court of law has pronounced him guilty and the presumption of innocence operates in favour of the accused. But at the same time there is a possible risk ~ and in many instances a very real risk~ that an accused who is released pending trial might abscond. The procedural device known as 'bail' attempts to strike a balance between these competing criminal justice interests. 18 This presumption has been recognised since at least 1789. For example, art 9 of the French Declaration of the Rights of Man and the Citizen began with the words: 'Every man being counted innocent until he has been pronounced guilty, if it is thought indispensable to arrest him, all severity that may not be necessary to secure his person ought to be strictly suppressed by law.' Scholars such like HJ Berman maintain that this French doctrine was originally intended to operate, primarily, at the stage of investigation: 'The Presumption of Innocence: Another Reply' (1980) 28 American J of Comparative L 615 at 622. 19 See Stack v Boyle 342 US I (1951) 6, where Vinson CJ stated with reference to the right of bail, 'this traditional right to freedom before conviction permits the unhampered preparation of a defence, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before the trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.' 20 In Krause v Switzerland (7986/77) DR 13, 73 the European Commission of Human Rights stated in a similar vein that the principle of the presumption of innocence is in the first instance a procedural guarantee applying to all aspects of criminal procedure. Its application therefore reaches much further than just the trial. 21 S v Smith 1969 (4) SA 175 (N) 17E~F. 22 Note 16 above, 269E~F. 296 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM The Courts do not like ever to deprive a man of his freedom while awaiting trial. He may be innocent, and then it would be very wrong. Also, even if he is guilty, we try not to deprive him of his freedom until he has been convicted. After all, even if you are sitting in gaol awaiting trial under the most favourable conditions in the gaol you are nevertheless deprived of your freedom. Herbert Packer's crime control and due process models of how crime is dealt with provide a useful theoretical basis for understanding the fundamentally different attitudes to bail that exist in society. 23 In the crime control model, liberty is and should be kept to a minimum and pre-trial liberty should not become the norm. In the due process model, however, the basic point of departure is that there is a right to pre-trial liberty. A clear distinction must be maintained between the status of an accused who is awaiting trial and one who has been formally found guilty by a court of law. Constitutional law emphasises the importance of due process and is therefore designed to keep in check excesses that may result in too great an emphasis on crime control. Under South African common law, bail applications were regarded as sui generis and the onus was on accused persons to show on a balance of probabilities that they should be released?4 The interim Constitution spelt out detainees' rights more specifically. In terms of s 25(2)(d) of the interim Constitution, every person arrested for the alleged commission of an offence had the right 'to be released from detention with or without bail, unless the interests of justice require otherwise'. The interpretation and application of these rights initially caused some confusion amongst members of the judiciary. This was particularly so in relation to the interpretation of the 'interests of justice' and the incidence of the onus in a bail application. 25 (a) The 1995 amendment Fortunately, much of the initial confusion was clarified in 1995 when the legislature amended s 60 of the Criminal Procedure Act 55 of 1977 to fit the constitutional norm in s 25(2)(d) of the interim Constitution?6 The legislature did not set out a closed list of instances defining 'interests of justice' but left the list open-ended to leave room for judicial interpretation. 27 The 1995 amendment emphasised that presiding 23 H Packer The Limits of the Criminal Sanction (I 968) 149-173. 24 SeeS v Hlongwa 1979 (4) SA 112 (D). Even the common law, however, was criticised on this ground. 25 On the onus, see Ellish v Prokureur-Generaal, Witwatersrandse Plaaslike Afdeling 1994 (2) SACR 579 (W); Magana v District Magistrate, Johannesburg ( 1) 1994 (2) SACR 304 (W); S v Mbe/e 1996 (I) SACR 212 (W); Prokureur-Generaal van die Witwatersrandse Plaaslike Afdeling v Van Heerden 1994 (2) SACR 469 (W); Prokureur-Generaal, Vrystaat v Ramokhosi 1997 (I) SACR 127 (0); S v Vermaas 1996 (I) SACR 528 (T). On 'interests of justice', seeS v De Kock 1995 (1) SACR 299 (T); S v Dhlamini 1997 (1) SACR 54 (W); S v Tshabalala 1998 (2) SACR 259 (C). 26 Criminal Procedure Second Amendment Act 75 of 1995. 27 See P M Bekker 'Interpretation of the Right to Bail and the Limitation Clause of the Constitution of the Republic of South Africa' (1994) 57 THRHR 490; L C Kotze 'Wat is die huidige posisie by 'n aansoek om borgtog deur 'n gearresteerde in die lig van die nuwe (2000) 16 SAJHR 297 officers should acknowledge their new roles and functions in dealing with bail applications, 28 and that every presiding officer should consider what effect the release of the detainee would have on the 'interests of justice'. Important from the perspective of crime control was that it was no longer required of judicial officers to act as neutral umpires in bail hearings. Instead they were obliged to act inquisitorially and investigate each matter. 29 A further desirable innovation was that the 1995 amendments provided guidance for judicial officers where previously little was available. The 1995 amendment introduced a new subsection, s 60(11), which caused some controversy because it created a reverse onus. In cases where the accused had allegedly committed a Schedule 5 offence, or had allegedly re-committed a Schedule 1 offence while out on bail, the accused was required to satisfy the court that the 'interests of justice' did not require their detention in custody. From the wording of the legislation it was clear that, in all other instances, the state bore the onus of proving that the accused should not be released from detention. By international standards, the 1995 amendments were strict measures. They provided, for example, for the continued detention of someone who might commit further crime rather than limiting pre-trial detention only to those who might not stand trail or who might interfere with witnesses or other preparations for the trial. Nevertheless, the provisions were widely regarded as fair and as a constitutionally sound crime-control measure. 30 In a positive sense the law offered the protection to all, including victims and witnesses, that had been lacking after the inception of the interim Constitution. One could have been forgiven for thinking that the question of bail law had been settled. (b) Bail and the 1996 Constitution The 1996 Constitution, like the interim Constitution, also dealt with pretrial release. It made a subtle change, however. Where the 1993 Constitution recognised a right to be released unless the interest of justice required otherwise, s 35(l)(f) referred to the right to be released from detention if the interests of justice permit. In the context of a Bill of Rights that was still replete with other references to individual freedom, this subtle change may have seemed an insignificant product of the plain English in which the 1996 Constitution was cast. It was, however, to prove to be of considerable significance. grondwet?' (1995) 30 The Magistrate 36; K Malan 'Die Grondwet en borgaansoeke' 1995 De Rebus 49; D J L Kotze 'Borgtog- artikel25(2)(d) van Wet 200 van 1993' 1994 De Jure 407; M Cowling 'Criminal Procedure' (1995) 8 SACJ 239; M Cowling 'A Constitutional Right to Bail' Human Rights & Constitutional LJ of Southern Africa 36. 28 See £//ish (note 25 above). This approach is confirmed by s 60(3) of the Criminal Procedure Act, as introduced by Act 75 of 1995. 29 See s 60(3) of the Criminal Procedure Act, as introduced by Act 75 of 1995. 30 SeeM Schonteich A Case of a Good Law, its Bad Application and its Ugly Results (Institute of Race Relations, 1997). 298 FOCUS: THE CONSTITUTIONAL COURTS 1999 TERM (c) The 1997 amendments Despite the fact that adequate legislation was in place to protect the rights of the community and that the wording of the Constitution had been tightened, members of the South African public remained convinced that the right to bail was to blame for the perceived increase in crime. This belief was strengthened by one incident in particular, the 1997 rape and murder of six-year old Mamokgethi Malebane. 31 The Mamokgethi case sparked an outcry from the community that courts failed to protect innocent victims, by granting bail to hardened criminals too readily. 32 Suggestions were made that the bail law should be tightened. Government's response to these calls for vengeance was to amend the bail law again by enacting the Criminal Procedure Second Amendment Act 85 of 1997. It was these amendments that were to be the subject of the Dlamini case. IV GROUNDS FOR CONSTITUTIONAL CHALLENGES In Dlamini, the bail provisions of the Criminal Procedure Act (as amended in 1997) were challenged on six grounds: l. The constitutional right to bail was frustrated by the provision that bail may be refused 'where in exceptional circumstances there is a likelihood that the release of the accused will disturb the public order or undermine the public peace.J 3 (the 'community reaction' ground). 2. Section 60(1l)(a) effectively denied bail to persons charged with certain very serious offences by requiring them to adduce evidence that 'exceptional circumstances' exist which in the 'interests of justice' permit their release 34 (the 'very serious offence' ground). 3. Section 60(11 B)(c) unfairly made the bail record part of the trial record 35 (the 'admissibility of the bail record' ground). 4. The bail amendments generally offended the separation of powers doctrine and adversely affected judicial independence. 36 5. Access by the accused to the police docket was unreasonably restricted. 37 6. Sections 60(4)(a) and 60(5) listed factors unrelated to trial. 38 31 Mamokgethi Malebane was abducted, raped and killed by Dan Mahote. shortly before she had to testify against him in a rape trial. Mabotc had been released by the court on bail of R2 000 despite the fact that the police were investigating two other charges of rape against him and that the police had opposed the bail application. Sec 'Mamokgcthi: and justice for all?' Weekly Mail & Guardian 31 July 1998. 32 Sec 'Justice betrayal of innocence' Weekly Mail and Guardian 9 May 1997 9: 'Selmaats slaan man na moord op kind' Burga 2 August 1997 4. 33 Sections 60(4)(e) and 60(8A) of the Criminal Procedure Act, dealt with at paras 54- 57 of Dlamini. 34 Section 60( II )(a). dealt with at paras 58-80. 35 Section 60( II B)(c). dealt with at paras 86 100. 36 Section 60(4)-(9). dealt with at paras 37-44. 37 Section 60(14). dealt with at paras 81 85. 38 Sections 60(4)(a) and 60(5). dealt with at paras 51-53. (2000) 16 SAJHR 299 The manner in which the Constitutional Court dealt with the last three of these grounds is unproblematic. However, we take issue with the way in which the Court dealt with the first three grounds, namely the grounds of constitutional attack relating to community reaction, very serious offences and the admissibility of the bail record. Before analysing these grounds, we need to consider briefly one preliminary matter that coloured the approach of the Constitutional Court. As we have seen, the provision in the 1996 Constitution dealing with release from pre-trial detention was worded differently from its 1993 predecessor. The Constitutional Court seized on this subtle shift. The use of 'if' rather than 'unless' was the basis for a finding that the 1996 Constitution did not favour the liberty of the accused to the extent that the interim Constitution had done. 39 This is a very narrow interpretation that largely ignores both the common Jaw presumption in favour of liberty and the wider constitutional protections of individual liberty contained in s 12 of the 1996 Constitution. It reveals a restrictive approach to liberty rights that also shapes the Court's analysis of the challenges to the specific restrictions introduced by the 1997 amendments. It is to the most controversial of these amendments that we now turn. (a) Community Reaction There can be little argument that community reaction should not decide when a person should be detained or not. How then could a provision that bail could be denied where 'in exceptional circumstances there is a likelihood that the release of the accused will disturb the public order or undermine the public peace' pass constitutional muster? In Dlamini, the Court recognised the draconian and prima facie unconstitutional nature of the Jaw but nevertheless upheld it. The Court summarised the grounds for opposition to the provision as follows: Looking at public opinion and taking into account the likely behaviour of persons other than the detainee, so counsel suggested, smack of preventive detention and infringe a detainee's liberty interest protected by s 35(1)(f) of the (1996) Constitution. Elevating the sentiments of the community above the interests of the detainee is constitutionally impermissible. There is force in the argument. Ordinarily, the factors identified in s 60(4)(e) and (8A) would not be relevant in establishing whether the interests of justice permit the release of the accused. It would be disturbing that an individual's legitimate interests should so invasively be subjected to societal interests. It is indeed even more disturbing where the two provisions do not postulate that the likelihood of public disorder should in any way be laid at the door of the accused. The mere likelihood of such disorder independently of any influence on the part of the accused would suffice. 40 39 Sec Dlamini paras 37-38. where Kriegler J holds that s 60(l)(a) of the Act was introduced by the 1995 amendment to acknowledge the demands of s 25(1) of the interim Constitution. As it was left unchanged by the 1997 amendment which was introduced after the 1996 Constitution was enacted. it "favours liberty more than the minimum required by the [1996] Constitution·. 40 Paras 54-55. 300 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM The way the Court dealt with the matter was to find that although ss 60(4)(e) and 60(8A) infringed a fundamental constitutional right, they were, in terms of s 36 of the 1996 Constitution, a permissible limitation of the right. The primary question is how the Court managed to convince itself that this possibility could ever be acceptable in an open and democratic society based on human dignity, freedom and equality. 41 The answer is twofold. First, the Court made much of the crime rate and the public's violent reaction to the perception that bail was being granted too freely. Secondly, it noted that the courts had a discretion to apply this provision, but that this discretion was shaped and indeed restricted by the requirement that it was only to be exercised if there was a 'likelihood' of such public reaction, and then only in 'exceptional circumstances'. The first of these answers is highly suspect. The threat of a violent public reaction should not be enough to justify an action that is otherwise unconstitutional any more than public opinion may be used as such a justification. In Makwanyane, Chaskalson P, considering the constitutionality of the death penalty, commented that public opinion was 'no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour'. 42 In the same way that the threat of public lynchings was not enough to persuade the Court to uphold the death sentence, it should not have had any persuasive power in the case of bail. It is simply not an acceptable response in a democratic society of any stripe. Jonny Steinberg has argued that the justification 'remains striking for its glibness and its rather clumsy forays into pop criminology': in essence, Kriegler is telling us that the accused should remain in jail because lawless, vigilante action is rife, because people have little respect for the criminal justice system and take justice into their own hands. It is doubtful whether a constitutional court the world over has ever before denied an accused person his freedom with a glib reference to the force of mass lawlessness. 43 Kriegler J's second explanation was that '[e]xperience has shown that organised community violence ... does subside while ringleaders are in custody.' However, a criminologist, Eirena van der Spuy, has questioned the basis for this assertion. Van der Spuy asks: Experience? What experience? Sometimes taking gang leaders off the streets opens the space for a new and wilder generation of leadership. There are no axioms here. Each case has its own logic. Using that axiom as a basis for denying an accused bail strikes me as a little crazy. 44 41 See the statement by Kentridge AJ in Makwanyane (note 3 above) para 204: 'In conclusion I would endorse what Didcott J has cogently stated; the striking down of the death penalty entails no sympathy whatsoever for the murderer, nor any condonation of his crime. What our decision does entail is a recognition that even the worst and most vicious criminals are not excluded from the protections of the Constitution.' 42 Note 3 above, para 88. 43 Jonny Steinberg 'Clumsy Foray into Pop Criminology' Business Day 14 June 1999. 44 Quoted by Steinberg (note 43 above). (2000) 16 SAJHR 301 Once the conclusion is reached that the community reaction is an illegitimate ground for limiting the fundamental right to liberty that is at stake here, the second answer is largely irrelevant because merely restricting the scope of the disputed provision cannot save it. However, the attempt to develop these restrictions is of interest because it reveals another fundamental weakness of the judgment. In the course of trying to extend these restrictions as far as possible (in itself a laudable enterprise from the point of view of liberty), Kriegler J turned, inter alia, to the meaning of the words, 'exceptional circumstances'. These, he explained, were a 'clear pointer' to the fact that the sentiments of the community should only be acceded to - 'pandered to' would perhaps be an unfair paraphrase- in 'those rare cases where it is really justified'. 45 Although no further explanation was given of what was meant by 'really justified', other than the 'likelihood' of disturbance or undermining of the public peace (which is really a separate restriction), the intention was that 'exceptional circumstances' was to be interpreted narrowly as a strong limitation on what was, by the Court's own admission, a fundamentally illiberal provision. Strict constructionism in the interest of individual liberty is of course a hallowed technique of constitutional interpretation. What the judge seems to have overlooked is the use made of the same words in the provision dealing with very serious offences, to which we now turn. (b) Very serious offences In his classic dissent in Liversidge v Anderson,46 Lord Atkins said: I view with apprehension the attitude of Judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive minded than the executive .... It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that Judges are no respecters of persons and stand between the subject and any attempted encroachments of his liberty by the executive, alert to see that any coercive action is justified by law. 47 The complaint against s 60(1l)(a) was that it made it almost impossible for persons charged with certain very serious offences to obtain bail because it required them to adduce evidence that 'exceptional circumstances' exist which, in the 'interests of justice', permit their release. In our view, according to the ordinary interpretation of the words in s 60(1l)(a), it is more onerous than the bail laws under apartheid applicable to the same (non-political) crimes. The only provisions that were more draconian were those relating to detention without trial of people accused of political offences. 48 45 46 47 48 Dlamini para 57. [1941] 3 AllER 338. Ibid 361. For an overview of a number of these offences see Anthony Mathews Freedom, State Security and the Rule of Law- Dilemmas of the Apartheid Society (1989). See further Jeremy Sarkin 'Preventive Detention in South Africa' in Andrew Harding and John Hatchard (eds) Preventive Detention and Security Law: A Comparative Survey (1993) 130. 302 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Given the requirements of the subsection, the Constitutional Court correctly concluded as follows: 'To the extent, therefore, that the test for bail established by s 60(ll)(a) is more rigorous than that contemplated by s 35(l)(f) of the Constitution, it limits the constitutional right.' 49 As in the case of the provision dealing with community reaction, the court then moved to the second stage of the constitutional enquiry to assess whether 'that limitation may be justified in terms of s 36 of the Constitution'. 5° The main justification found by the Court was that of crime. The court was presumably also referring to the crime rate when it concluded that the requirement of "exceptional circumstances" ... is a limitation which is reasonable and justifiable in terms of s 36 of the Constitution in our current circumstances.' 51 The Court referred, rather melodramatically, to the submissions made in this regard by counsel on behalf of the State: He pointed to the grim statistics which show that our society is racked by a surge in violent criminal activity which has made all ordinary law-abiding citizens fearful for their safety and that of their family and friends. 52 Here the court makes the common mistake of equating fear of crime with the actual incidence of crime. It thereby takes judicial notice of something that is not quite correct. With respect, not 'all law-abiding citizens are fearful for their safety and that of their family and friends'. Although the fear of crime is certainly very real in our society, there is considerable evidence that people's fear of being a victim of crime outstrips the actual risk to which they are subjected. While it may be a common mistake not to distinguish fear of crime from crime itself, it is inexcusable for a court to make this mistake when allowing the supposed 'surge in violent crime' as a justification for curbing a fundamental constitutional right. The Court recognised that the level of criminal activity was not the only factor relevant to the limitation enquiry. In considering the balancing exercise required in s 36, the Court described the one side of the balance as comprising 'the purpose, effects and importance of the infringing legislation'. 53 In this regard it found the following: 'Parliament enacted s 60(11)(a) with the clear purpose of deterring and controlling serious crime, an indubitably important goal.' 54 However, the Court seems to have taken judicial notice that s 60(ll)(a) will indeed 'deter and control serious crime'. This is in sharp contrast to the considerable attention given to the same issue inS v Makwanyane. 55 All eleven Justices 49 50 51 52 53 54 55 Dlamini para 65. Ibid. Ibid para 77, emphasis added. Ibid para 66. Ibid para 68. Ibid. Note 3 above. See Jeremy Sarkin 'Problems and Challenges Facing South Africa's Constitutional Court: An Evaluation of its Decisions on Capital and Corporal Punishment' (1996) 113 SALJ 71. (2000) 16 SAJHR 303 in their separate judgments discussed whether the death penalty was in fact a deterrent to serious violent crime. Chaskalson P stated: It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. 56 Mahomed J came to the same conclusion: Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been persuaded that the fear of the death penalty rationally or practically operates as a demonstrable deterrent for offenders seeking to perpetrate serious crimes. 57 While somewhat more equivocal about the ineffectiveness of the death penalty as a deterrent, and although clearly attracted by the argument, Kriegler J in M akwanyane also rejected this justification advanced by the State. In an interesting parallel with many of the issues in Dlamini, he stated in his concurring judgment in Makwanyane: We were favoured with literally thousands of pages of material in support of and opposed to the death penalty, ranging from the religious, ethical, philosophical and ideological to the mathematical and statistical. Mr Von Lieres SC, who argued the retentionist cause with great skill, in essence sought to bring the death sentence within the protection of s 33(1) on the strength of its deterrent and retributive value .... But when all is said and done the answer is still what it was to Marshall J in Furman's case: the death penalty has no demonstrable penological value over and above that of long-term imprisonment. No empirical study, no statistical exercise and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force greater than that of a really heavy sentence of imprisonment. That is the ineluctable conclusion to be drawn from the mass of data so thoroughly canvassed in the written and oral arguments presented to us. 58 All the Justices specifically considered and rejected the proposition offered by the state in Makwanyane that the death penalty was an effective deterrent against violent crime. This 'governmental purpose' for the measure was thus discounted as a justification for the infringement of a fundamental right. In contrast to the critical evaluation made of the deterrence justification in Makwanyane, the Court apparently glossed over this justification in Dlamini. This difference in approach is baffling. Most, if not all, South Africans are aware that the death penalty has been abolished. And yet, despite the Constitutional Court's ruling, the death penalty remains the subject of fierce public debate. People contemplating committing a capital crime are therefore likely to know whether or not the death penalty applies to that crime. By contrast, the provisions of s 60(ll)(a) read with Schedule 6 of the Criminal Procedure Act are highly technical and their details are probably familiar only to the few legal practitioners who deal with these provisions on a day to day basis. People contemplating committing a Schedule 6 crime are highly unlikely to know 56 Makwanyane (note 3 above) para 146. 57 Ibid para 293. 58 Ibid paras 211-12. 304 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM that it is a Schedule 6 crime and are likewise unlikely to know that at their bail hearing they will have to prove 'exceptional circumstances' justifying their release. Obviously, the death penalty can hardly be compared in its severity and brutality to pre-trial detention. For these reasons, if the death penalty cannot be considered an effective deterrent against violent crime (and we agree that this is so), then the provisions of s 60(ll)(a) certainly cannot. If deterrence is not the purpose of s 60(ll)(a), then what is? We believe that the real purpose was revealed earlier in the judgment: Mr D'Oliveira, on behalf of the prosecution in Diad/a, vigorously defended subsection I I, saying that its wording had been well chosen with a view to the pressing social need to strengthen confidence in the criminal justice system. 59 One thing that everybody in this country will be able to agree on is that there is a need to strengthen confidence in the criminal justice system. However, the abrogation of fundamental rights is no way to strengthen such confidence, particularly when it is by no means clear that the exercise of that right is responsible for the lack of confidence in the first place. Let us return to the balancing exercise in which Kriegler J was supposedly engaged. He put it like this: It is well established that s 36 requires a court to counterpoise the purpose, effects and importance of the infringing legislation on the one hand against the nature and importance of the right limited on the other. 60 The Court did indeed make reference to the purpose of the infringing legislation; this is discussed in detail above. However, it appears to have failed to consider the 'other hand', namely 'the nature and importance of the right limited'. It did not refer again to the most fundamental of rights, that of freedom. Perhaps that is why it came to the conclusion that it did. The judgment proceeded to list the bail laws in other countries. Briefly stated, the United Kingdom is said to allow denial of bail if there are 'substantial grounds'. 61 The United States of America requires detention if "no conditions or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any other person ... before trial". 62 In Canada, pre-trial detention is only justified 'where necessary'. 63 And in Australia, the onus is reversed for serious offences. 64 None of these bail laws from other countries described in the judgment contain a provision as draconian as requiring the accused to show that 59 60 61 62 63 Dlamini para 62, emphasis added. Ibid para 68. Ibid para 70. Ibid para 71. Ibid para 72. 64 Ibid para 73. (2000) 16 SAJHR 305 there are 'exceptional circumstances' which justify their release. The Court was thus correct in finding that: It is clear from the above discussion that bail is limited in open and democratic societies, although it is also clear that the limitation imposed by s 60(ll)(a) is an unusual one which may well be more invasive than those described above. 65 Other than making the seemingly reluctant finding that s 60(ll)(a) might be more severe than bail laws found in other democracies, the Court did not refer to these laws again. We are not sure why the Court refers to these decisions at all. Kriegler J concludes: therefore, I am of the view that, although the inclusion of the requirement of 'exceptional circumstances' in s 60(11)(a) limits the right enshrined in s 35(l)(f), it is a limitation which is reasonable and justifiable in terms of s 36 of the Constitution in our current circumstances 66 When called upon to adjudicate the constitutionality of s 60(ll)(a) the Court again had to interpret the words 'exceptional circumstances'. It is interesting to contrast the interpretation of these words in this context with the interpretation of the same words used in the first instance, namely the community reaction ground discussed above. In both cases the Court holds the provisions to be in contravention of s 35(3)(f) but to be saved by the limitations clause. Here the provision is in some ways not so obviously in contravention of the primary constitutional right. Many legal systems recognise that the 'interests of justice', loosely defined, require that bail applications in especially serious cases be treated with particular circumspection; for example, the failure of a person accused of murder to stand trial may have wide ramifications. The difficulty is that these factors are covered fully in the earlier subsections ofs 60. Section 60(11)(a) imposes a further restriction that requires its own justification to pass muster in terms of the limitations clause. Here, too, the Court used public opinion as a crutch, for it argued that the prima facie unjustifiable restrictions on bail were acceptable in a democratic society at least in part because of public misconceptions of the bail process. To these it coupled a claim that many judicial officers have fundamental misconceptions of what bail is all about- a gratuitous insult for which no evidence was presented. Nor was evidence presented that 'grim crime statistics' will be improved by tighter bail laws. This is not surprising: it is unlikely that more convincing evidence could have been found to support such a claim than that which was offered about the efficacy of the death penalty as a deterrent, a proposition that the same Court rejected with scorn in Makwanyane. The main reason for the Court concluding that s 60(ll)(a) was constitutionally acceptable, however, was that the restriction it contains on bail being granted to serious offenders was not as drastic as it appears. 65 Ibid para 73. 66 Ibid para 77. 306 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM In deciding this, the Court made much of the fact that persons accused of Schedule 6 offences were not denied bail automatically. Thus the Court ruled that, because bail could still be granted to persons accused of even the most serious offences in 'exceptional circumstances', judicial officers still make the ultimate decision on whether bail should be granted. This is of course true, but the extent of the judicial officer's discretion depends on what is meant by 'exceptional circumstances'. For the discretion to be meaningful it should be wide enough to allow the court to grant bail whenever the accused in fact deserves it. Unfortunately for the Court, the ordinary meaning of 'exceptional circumstances' is in fact relatively narrow. Lord Chief Justice Bingham recently explained in the Criminal Division of the English Court of Appeal that the ordinary meaning is a circumstance such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered. 67 The Constitutional Court's difficulty is compounded by the fact that this restrictive exposition of 'exceptional circumstances' fits closely with the approach it adopted to the same words in s 60(4)(e) where it refers to 'rare cases' in which the invocation of that restriction would be justified. Confronted by its own precedent of a few pages earlier the Court simply obfuscated. It denied the obvious, literal reading of s 60 as a whole, by ignoring its earlier restrictive interpretation of 'exceptional circumstances'. The section itself lists over thirty circumstances where bail may ordinarily be refused. The Court denied the fact that for circumstances to be 'exceptional' this must mean that there are other circumstances than those listed. Its reasoning for the latter conclusion is entirely unconvincing. It studiously avoided a definition of the term exceptional but attempted instead to illustrate how the words should be interpreted. The specific example that it gave, derived from the Joubert case, 68 was of 'an otherwise dependable man charged with consensual sexual intercourse with a 15 year old girl, and who has minor previous convictions'. Such a man would fall within the ambit of s 60(11)(a) and yet, according to the Court, a prudent judicial officer exercising the discretion that the words 'exceptional circumstances' allow, should grant him bail. On the equities of the matter the outcome may be correct. Yet, contrary to what the Court suggested, there is nothing 'exceptional' about these facts at all. It is unfortunately not rare for 'dependable' men with limited or no previous records to be charged with Schedule 6 crimes that are not necessarily particularly heinous (indeed it may happen 'regularly'). What the Court has done is to deny the ordinary meaning of 67 R v Kelly [1999]2 AllER 13, 17. 68 S v Joubert 1998 (2) SACR 718 (C). An appeal by the state in Joubert's case was considered by the Constitutional Court in Dlamini. (2000) 16 SAJHR 307 the words 'exceptional circumstances' in order to develops 60(ll)(a) in a way that allows it to pass constitutional muster. It is worth emphasising why this interpretation is problematic. The debate about constitutional interpretation in South Africa thus far has concerned primarily the question of how the Constitution itself and particularly the Bill of Rights should be interpreted. Literalists have argued that the Constitution protects a wide spectrum of rights and that it should simply be applied as strictly as possible to achieve the protection of liberty, dignity and equality that for them the actual wording so manifestly encompasses. Their opponents have argued for a wider interpretation, which would allow the underlying principles of the Constitution to be applied even where they are not spelled out literally. In practice the results will not often differ, although the latter approach is perhaps more open to distortion by a misapplication of public opinion as a form of contextualisation. What we have here though, is a determinedly non-literalist interpretation of an ordinary statutory provision, the constitutionality of which is being tested. It is, of course, acceptable, where words are inherently ambiguous, to give them a meaning that is compatible with the Constitution, but in this instance, as we have illustrated, there is no ambiguity about the term 'exceptional circumstances'. The problem is that the Court did not attempt seriously to grapple with its meaning but simply gave it two different slants when applying it in two subsections of the same statutory provision. This is a true sleight of hand, for unlike its interpretation of 'interests of justice' where it pointed out the two meanings of the words in the same provision, 69 the Court simply glossed over what it was doing. What it should have done, is simply to have given 'exceptional circumstances' its ordinary, restricted meaning. The outcome would then have been that subsection ll(a) could not possibly have passed constitutional muster in terms of the limitations clause as 'justifiable in an open and democratic society based on human dignity, equality and freedom'. In the present circumstances, the only rule of construction that explains the approach adopted by the Court is from Lewis Carroll's masterpiece Alice in Wonderland (1865): 'When I use a word', Humpty Dumpty said in rather a scornful tone, 'it means what I choose it to mean, neither more nor less.' 'The question is', said Alice, 'whether you can make words mean different things.' 70 One further point needs to be made in this regard. One of the strengths of s 60 in its current form, as the Court recognised, is that it provides guidance for judicial officers in structuring their bail decisions. Section 60(11 )(a) as interpreted does not do so. In this instance the judicial officer is being asked to interpret the words 'exceptional circumstances' widely 69 Dlamini paras 45-50. 70 Quoted by Lord Atkin in Liversidge v Anderson (note 46 above) 361. 308 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM and not literally, while in s 60(4)(e) they must be interpreted narrowly and literally. 71 It is often argued that one of the strengths of literal interpretation is that it supports the rule of law in the traditional sense of making it clear and easy to apply. This may, or may not, be a clinching argument in a jurisprudential debate. In the context of this bail legislation though, we can see an example of it being applied, at least in part, for the flexibility of interpretation that the Court requires here is both confusing and fundamentally undermining of the important guarantee of individual liberty that is at stake. (c) Admissibility of bail proceedings One of the very first cases that decided upon the constitutionality of subsequently admitting the record of a bail proceeding was S v Botha. 72 Myburgh 1 stated the dilemma facing an accused in applying for bail in the following terms: [I]f he fails to give evidence or refuses to answer incriminating questions, he may be refused bail, yet, if he does give evidence and answers incriminating questions in order to get bail, he foregoes his right to remain silent and the privilege against self-incrimination. In the interests of a fair trial, the accused should not have to choose. 73 In Botha, it was decided that the proceedings of a bail application should be excluded on the following grounds: first, that it infringes upon an accused's right against self-incrimination, and secondly, that it is in violation of an accused's fair trial rights in terms of s 25 of the interim Constitution. 74 It was held by the court in Botha that the evidence of a bail hearing be held distinct from the trial in the same way that evidence adduced in a trial-within-a-trial be excluded as testimony. Shortly after the decision in Botha, the legislature intervened by adopting s 60(11B)(c) of the Criminal Procedure Act in 1997, 75 making bail proceedings admissible as evidence at the trial. This provision was criticised by human rights lawyers, as well as the Cape High Court, in S v Schietekat. 76 In that case, Slomowitz AJ held that subsection (llB)(c) was unconstitutional. He reasoned as follows: A bail proceeding is not a Star Chamber. Whatever the purpose of Parliament may have been in enacting it, its effect is malevolent. An accused may only elect to exercise his right to apply for bail on pain of 71 72 73 74 75 As argued above, ss 60(4)(e) should have been struck down but for other reasons. 1995 (2) SACR 605 (W). Ibid 611i-j. More specifically s 25(3)(c) and (d) of the interim Constitution. Section 60(11B)(c) now provides as follows: The record of the bail proceedings, excluding the information in paragraph (a), shall form part of the record of the trial of the accused following upon such bail proceedings: Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings. 76 1998 (2) SACR 707 (C). See also S v C 1998 (2) SACR 71 (C). An appeal by the state in Schietekat's case was one of the matters dealt with by the Constitutional Court in Dlamini. (2000) 16 SAJHR 309 being interrogated on the merits of the case against him, thus to have his own testimony used against him as part of the State's case when he eventually comes to be tried. It is by fashioning this weapon that those who would seek their liberty are to be discouraged from asking for it ... ? Upon testifying an accused might well incriminate himself, whether of the crime charged or, what is more serious, of other offences unknown and uncharged. I am bound to hold, as I do, that the subsection violates the Constitution .... 77 It is against this background that we turn to the Constitutional Court's interpretation of the provision and of its constitutionality. In Dlamini, Kriegler J made it clear that the facts of the two cases should be distinguished. In Botha it had been held that the accused testified without being informed of his right against self-incrimination, whereas in Dlamini the accused had been properly informed of his right to remain silent and the right not to incriminate himself. Kriegler J reflected on the tension that exists between the right of an accused to make out an effective application for bail by adducing evidence and the list of rights under s 35(1) and (3) of the Constitution. He did not, however, consider the tension as exceptional, or unusual, or uniquely applicable to bail applicants. Rather, he observed, that what was required of an accused under the circumstances was to exercise an informed choice. 78 The Court went further and criticised the Botha judgment on the basis that effectively it had given the accused the right to lie in a bail application and not to be confronted with the lies in the later trial. Kriegler J in Dlamini interpreted the right of an accused not to incriminate himself as meaning that he may not be compelled to testify. Based on the Court's interpretation, an accused had to exercise his discretion as to whether to testify in the bail application and if the person did so, it could be claimed that the proceedings should not be quoted in the trial. 79 It is submitted that in its intepretation of the right not to incriminate oneself and the right to remain silent, the Court lost sight of the fact that an accused is not merely exercising a choice when deciding to testify in his own bail application. He has no choice. Without his testimony to support his application he will be denied his freedom. Section s 60(ll)(a) creates an onus, which has 77 Schietekat (note 76 above) 714g-i. 78 Dlamini para 93. 79 See Dlamini para 95: In effect the reasoning in Botha wishes to give the accused the best of both alternatives or, as it was put bluntly in Dlamini, the right to lie: one can advance any version of the facts without any risk of a come-back at the trial; and there one can choose another version with impunity. However, the protection of an arrestee provided under the right to remain silent in the Constitution - or the right not to be compelled to confess or make admissions - offers no blanket protection against having to make a choice. It is true, the principal objective of the Bill of Rights is to protect the individual against abuse of state power; and it does so, among others, by shielding the individual faced with a criminal charge against having to help prove that cl:targe. That shield against compulsion does not mean, however, that an applicant for bail can choose to speak but not to be quoted. As a matter of policy the prosecution must prove its case without the accused being compelled to furnish supporting evidence. But if the accused, acting freely and in the exercise of an informed choice, elects to testify in support of a bail application, the right to silence is in no way impaired. Nor is it impaired, retrospectively as it were, if the testimony voluntarily given is subsequently held against the accused. 310 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM to be discharged and the only way it can be discharged is to testify. There is no real choice under such circumstances. Kriegler J justified the infringement upon the right to remain silent by using other comparisons on the trial process. We are not convinced that the choice exercised by an accused whether to volunteer to give a statement to the police, or to respond to their questions, is analogous to the choice of applying for bail. Should an accused exercise his right to remain silent and not give a statement to the police he will not be 'punished' by being detained, but should he wish to exercise this right when applying for bail it is more than likely that he will be detained. The other examples used by Kriegler J are by no means more persuasive. 80 The Constitutional Court relied on an earlier judgment of the Supreme Court of Appeal in S v Nomzaza 81 to demonstrate that an accused could never, not even under the common law, succeed in a claim that incriminating evidential material given by the accused could be excluded. 82 What the Court failed to recognise is the element of implied compulsion to testify under the 1997 bail legislation as distinguished from incriminating statements made freely and voluntarily by an accused in the course of an ordinary criminal trial under common law. It is submitted that the decision of Nomzaza deals with a different situation from that which s 60(B)(c) is regulating and cannot be used to justify saving the provision. V CONCLUSION The Constitutional Court has judged the current bail law to be constitutional by interpreting narrowly the protection of liberty contained in the Constitution and, more particularly, by limiting the right in s 35(l)(f) that '[e]veryone who is arrested for allegedly committing an offence has the right ... to be released from detention if the interests of justice permit, subject to reasonable conditions'. It has failed to live up to the importance of freedom as a constitutional value as acknowledged in Ferreira v Levin N0. 83 In that case, Ackermann J interpreted s 11(1) of the interim Constitution in the following words: Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of its own. It is likewise the foundation of many other rights that are specifically entrenched. Viewed from this perspective, the starting point must be that an individual's right to freedom must be defined as widely as possible, consonant with a similar breadth of freedom of others. 84 80 81 82 83 84 Dlamini supra par 94. 1996 (2) SACR 14 (A). Dlamini para 96. 1996 (I) SA 984 (CC). Ibid para 49. In Bernstein v Bester NO 1996 (2) SA 751 (CC) para 145, 0' Regan J interpreted freedom as having 'two interrelated constitutional aspects: the first is a procedural aspect which requires that no one be deprived of physical freedom unless fair and lawful procedures have been followed. Requiring deprivation of freedom to be in accordance with procedural fairness is a substantive commitment in the Constitution. The other constitutional aspect of freedom lies in a recognition that, in certain circumstances, even when fair and lawful procedures have been followed, the deprivation of freedom will not be constitutional, because the grounds upon which freedom has been curtailed are unacceptable.' (Emphasis added) (2000) 16 SAJHR 311 In Dlamini, by contrast, the Court restricted this right for persons detained while awaiting trial. Where it could not restrict it any further the Court ruled that circumstances in South Africa justify the legislator in infringing even the limited guarantee that the Court recognised these detainees as having. This it did by invoking the general clause that allows the rights in the Bill of Rights to be limited if specific conditions apply. Draconian bail laws are not the solution to South Africa's crime problem. An effective criminal justice system is the key. The Court recognised this when it declared the death penalty unconstitutional. In Makwanyane, Chaskalson P correctly stated that [t]he greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness. 85 In the same case, Mahomed J provided a useful and concise list of the most critical problems confronting the criminal justice system and perceptively described what needs to be done to deter serious crime. 86 The reason that four years later the criminal justice system remains in crisis is in part because of the scale and complexity of the problems that need to be overcome by the State. Solving the real problems of the criminal justice system is complex and will take a long time and a great deal of effort. It is politically difficult for government to concede this to a public hysterical about crime. By contrast, tough-on-crime legislation is a 'quick-fix', a rapid and cheap way for government to be seen to be doing something. Democratic governments make decisions according to political demands. In the current South African context, it is therefore understandable that the government will be tempted to pass constitutionally dubious laws in an effort to present itself as 'strong on crime'. In fact, in a society that has yet to build a strong 85 Makwanyane (note 3 above) para 122. 86 'It appears to me to be an inherent probability that the more successful the police are in solving serious crimes and the more successful they are in apprehending the criminals concerned and securing their convictions, the greater will be the perception of risk for those contemplating such offences. That increase in the perception of risk, contemplated by the offender, would bear a relationship to the rate at which serious offences are committed. Successful arrest and conviction must operate as a deterrent and the State should, within the limits of its undoubtedly constrained resources, seek to deter serious crime by adequate remuneration for the police force; by incentives to improve their training and skill; by augmenting their numbers in key areas; and by facilitating their legitimacy in the perception of the communities in which they work .... Successful deterrence of serious crime also involves the need for substantial redress in the socio-economic conditions of those ravaged by poverty, debilitated by disease and malnutrition and disempowered by illiteracy. Rapid amelioration in these areas must have some concomitant effect on the levels of crime. There has to be a corresponding campaign among the communities affected by serious crime to harness their own legitimacy and their own infrastructures in interaction with the security agencies of the State. The power and influence of agencies of moral authority such as teachers, school principals and religious leaders must rapidly be restored. Crime is a multi-faceted phenomenon. It has to be assaulted on a multi-dimensional level to facilitate effective deterrence.' Makwanyane (note 3 above) paras 290-91. 312 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM human rights culture, 87 government is under considerable pressure to do so. In the short term, it is politically irrelevant that such laws will not solve the real problems in the criminal justice system. The Constitutional Court is the final guardian of the Constitution. It has the task of counterbalancing the majoritarian political pressures faced by government when it concerns fundamental rights. In this instance the Court has failed, comprehensively and unanimously, in its fundamental duty to protect the liberty of a reviled group, those accused - note, not convicted - of serious crimes. The decision in Dlamini parallels that in Liversidge v Anderson. 88 We all recognise now that Liversidge v Anderson was wrongly decided; 89 but at least it was decided during wartime when an infringement of the right to liberty by the executive was countenanced by the majority. In his famous dissenting speech in Liversidge's case, Lord Atkin said: In England amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the Judges are no respecters of persons, and stand between the subject and any attempted encroachment on his liberty by the Executive, alert to see that any coercive action is justified in law. 90 Dlamini was decided in the misunderstood war against crime. It follows that the case may be the Constitutional Court's contribution to the national war against crime and could therefore be dismissed as an aberration in the struggle for the protection of liberty. Although not excusing the illiberal elements of the decision, that might he the best course to adopt, for it would be deeply ironic if, although the guns of war could not permanently silence the common law, the guns of a few gangsters undermine the much-vaunted new Constitution. Dlamini cannot be allowed to set the standard for the future protection of individual liberty in South Africa. JEREMY SARKIN Professor of Law and Deputy Dean Law Faculty, University of the Western Cape ESTHER STEYN Lecturer in Law, University of Cape Town DIRK vAN ZYL SMIT Professor of Law, University of Cape Town RON PASCHKE Advocate, Cape Bar 87 On the creation of a human rights culture, see Jeremy Sarkin 'The Development of a Human Rights Culture in South Africa' (note 2 above) 628. 88 Note 46 above. 89 Lord Atkin's dissent in Liversidge was finally vindicated in Inland Revenue Commissioners v I Rossminster Ltd 1980 AC 952 (HL), 1011, where Lord Diplock said: 'For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong, and the dissenting speech of Lord Atkin was right.' 90 Liversidge (note 46 above) 361. (2000) 16 SAJHR 313 GAY AND LESBIAN PARTNER IMMIGRATION AND THE REDEFINING OF FAMILY NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY V MINISTER OF HOME AFFAIRS I INTRODUCTION In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1 (National Coalition 2), the Constitutional Court dealt with the constitutionality of s 25(5) of the Aliens Control Act 96 of 1991 (the Act). The provision allows the Department of Home Affairs to issue an immigration permit to a foreign national applicant 3 who is a spouse or a dependent child of a permanent South African resident. It facilitates the immigration of spouses to enable them to live with their South African counterparts. The provision is a reasonable one as it enables married couples to live together irrespective of the nationality or permanent residence of one of the spouses. Until this case, however, its benefits were not available to gay and lesbian partners in an otherwise similar situation, as South African law does not permit them to marry. 4 The central issue canvassed in this note is the relationship between family and marriage, and particularly the extent to which gay and lesbian couples can be considered as constituting family. 5 In several jurisdictions, including South Africa, the traditional legal definition of family has recently been subject to scrutiny and reappraisal for its exclusion of lesbians and gays. In National Coalition, the Constitutional Court unanimously acknowledged that gays and lesbians do indeed constitute family; but it appears that, at least for the time being, such acceptance does not extend to marriage. That institution remains an exclusively heterosexual preserve. Given international trends and the possible implications of this judgment (examined below), gay and lesbian activists may find that, without strategic activism on their part and principled constitutional interpretation, the -equal right to marry will be denied to them. Internationally, the trend is to retain marriage as a heterosexual institution and in certain instances create some other parallel institution I 2000 (2) SA I (CC). The decision of the court a quo, per Davis J, with Conradie J and Knoll AJ concurring, was reported as National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1999 (3) BCLR 280 (C). 2 An earlier case brought by the same applicants is cited as National Coalition for Gay and Lesbian Equality v Minister of Justice !999 (!) SA 6 (CC), and generally referred to as the Sodomy judgment. See National Coalition para 31. 3 For a comment on terminology, see National Coalition para 15 fn II. 4 See B Silver' 'Til Deportation Do Us Part: the Extension of Spousal Recognition to Same-sex Relationships' (1996) 12 SAJHR 575. 5 The judgment deals with other important jurisprudential issues such as 'reading in' and the 'intersectionality of rights' which will not be dealt with in this note. 314 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM to recognise gay and lesbian unions. In Quilter v Attorney-Genera/, 6 the New Zealand Court of Appeal held that the common law and the statutory definition at issue in this case confined marriage to a union between a man and a woman. In Fitzpatrick ( AP) v Sterling Housing Association Ltd, 7 the House of Lords refused to interpret the word 'spouse' as including two persons of the same sex, but did hold that samesex partners could constitute a family. In M v H, 8 the Supreme Court of Canada affirmed a law that marriage was exclusive to opposite-sex couples. The only contrary trend has been that of the Hawaii Supreme Court. 9 II THE DEVELOPMENT OF FAMILY LAW The development of a progressive body of family law in South Africa has been slow. 10 This is the result of a very conservative foundation laid by our academic writers and the courts. Family law in South Africa has been traditionally defined as constituting that part of law that deals with married persons and their children. 11 In W v W, 12 the court refused to recognise that a sex-change operation could legally change the sex of a 6 1998 I NZLR 523 (CA). The appellants were three lesbian couples who argued that the Marriage Act 1995 should be re-interpreted to allow same-sex couples to marry (526). It was argued that such an interpretation would be appropriate in light of the New Zealand Bill of Rights Act 1990 (571). Section 19 of the Bill of Rights deals with freedom from discrimination and s 21(1) specifically refers to sexual orientation (556). The court held, however, that if the Marriage Act constituted discrimination, Parliament had sanctioned it (582). 7 House of Lords 28 October 1999, unreported. 8 (1999) 171 DLR 4th 577. This case dealt with the definition of spouse ins 29 of the Family Law Act 1990 and particularly with whether the term included same-sex couples. The provision allows for 'persons who become financially dependent in the course of an intimate relationship some relief from financial hardship resulting from the breakdown of that relationship' (579). The provision is specifically made applicable to unmarried opposite-sex couples as well as married couples. 9 In Baehr v Lewin 74 Haw 530 (1993), the Hawaii Supreme Court found that the stipulation that marriage be between a man and a woman required 'strict scrutiny', a standard seldom met by the state. See also Baehr v Mike 23 FLR 2001 (1996) (Hawaii) for a particularly good and inclusive discussion of gay and lesbian parenting. 10 See generally C Lind 'Sexual Orientation, Family Law and the Transitional Constitution' (1995) 112 SALJ 481, TL Mosikatsana 'The Definitional Exclusion of Gays and Lesbians from Family Status' (1996) 12 SAJHR 549, and A Pantazis 'An Argument for the Legal Recognition of Gay and Lesbian Marriages' (1997) 114 SALJ 556. II See, for example PJ Visser & JM Potgieter Introduction to Family Law 2 ed (1998) I. These authors not only define family law narrowly but display a hostile attitude to homosexuality: It should be remembered that the prohibition on unfair discrimination against persons on account of their sexual orientation does not override the constitutional principle that the 'best interests of the child' are of paramount importance in every matter that concerns the child. And for as long as society does not see homosexuality and lesbianism as normal, it will frown upon any attempt to treat homosexual and lesbian parents as 'normal' for the purpose of access to young children. Moreover, the Constitution does not require that homosexualism must be actively promoted (170 fn 108). 12 1976 (2) SA 308 (W). For a fuller discussion, see B Van Heerden, A Cockrell & R Keightley Boberg's Law of Persons and the Family 2 ed (1999) 209-61. (2000) 16 SAJHR 315 person. In Van Rooyen v Van Rooyen, 13 not only were stringent conditions placed on a lesbian mother who sought access to her children, but the court treated homosexuality particularly negatively. Since the enactment of the interim Constitution, 14 the legal definition of family has begun to widen. The most significant judicial break with the past has been that of Langemaat v Minister of Safety and Security. 15 In this case a lesbian police captain sought to have her partner included in her medical aid scheme. In finding in her favour, Roux J dramatically changed traditional conceptions of family law when he held that: The stability of their [same-sex] relationship is no different from the many married couples I know. Both unions are deserving of respect and protection. If our law does not accord protection to the type of union I am dealing with, then I suggest that it is time it does so. 16 With regard to custody of children by lesbian mothers, there have been significant shifts away from Van Rooyen in the past couple of years. In V v V, 17 the court found that the homosexuality of the mother was not necessarily a bar to joint custody. 18 In addition, there have been at least two unreported judgments where the court has found in favour of a lesbian mother in a custody matter. 19 In Farr v Mutual & 13 I 994 (2) SA 325 (W). See generally P De Vos 'The Right of a Lesbian Mother to Have Access to Her Children: Some Constitutional Issues' (1994) I I I SALJ 687, E Bonthuys 'Awarding Access and Custody to Homosexual Parents of Minor Children: A Discussion of Van Rooyen v Van Rooyen 1994 2 SA 325 (W)' (1994) 3 Stellenbosch LR 298; D Singh 'Discrimination Against Lesbians in Family Law' (1995) II SAJHR 571. 14 Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution). 15 1998 (3) SA 312 (T). SeeR Louw 'Langemaat v Minister of Safety and Security: A Gay and Lesbian Victory but a Constitutional Travesty' (1999) 15 SAJHR 393. 16 Langemaat (note 5 above) 314B-C. 17 1998 (4) SA 169 (C). 18 The court had to decide whether an order for joint custody was appropriate. Although the parents had in practice been exercising joint custody for the two years prior to the divorce, the plaintiff husband objected to such an order on two grounds and sought an order for sole custody. The grounds were that the mother was suffering from borderline personality disorder and that she was lesbian. However, the evidence of the psychiatrist and psychologists for both parents did not consider the mother's sexual orientation to be a factor. Significantly, the court quoted from one of the psychologists' reports that stated generally that the homosexual orientation and lifestyle per se of a parent do not constitute a moral or psychological threat to the wellbeing of children. The report continued that inappropriate sexual behaviour that impinges on children of whatever sexual orientation might be harmful. See also EP Critchfield and Critchfield (WLD 30 October 1998, unreported) where the court viewed the homosexual encounters of the first applicant during the marriage in 'no more serious a light than conventional adultery'. 19 In Mohapi v Mohapi (WLD 1998, unreported) the applicant mother obtained an order of court for the father to return their minor daughter to her. In her papers, the mother acknowledged that she was lesbian and living with another woman. She alleged that her daughter had 'an extremely good relationship' with her partner as well as her partner's daughter. The father had often vilified the mother in public regarding her sexual orientation and threatened to have her custody of their daughter removed by the court. Although the mother already had custody of her child and only sought an order for the return of her child, the court drew no adverse inference regarding her sexual orientation. In Greyling v Minister of Welfare and Population Development (WLD case no 98/8297, unreported) the applicant had been divorced three years prior to the matter and was granted custody of her daughter. After moving out of her parents' home a year later she formed a lesbian relationship with a co-worker. The applicants' 316 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM FederaP0 the court held that two gay men living together in a domestic relationship constituted a family: I think that while society might not necessarily approve of homosexual relations, it does recognise that where such a relationship has a degree of permanency and the manner in which the partners live together resembles for all intents and purposes (save that their sexual relations are homosexual and not heterosexual) a marriage between a husband and wife, they could be considered members of a family as would a husband and a wife. The most far-reaching understanding of family was recently articulated by O'Regan J in the unanimous Constitutional Court judgment m Dawood v Minister of Home Affairs, 21 where she stated that families come in many shapes and sizes. The definition of family also changes as social practices change. In recognising the importance of the family, we must take care not to entrench particular forms of family at the expense of other forms. 22 While there have been considerable developments in broadening our conception offamily law, 23 the most significant remaining issue is that of gay and lesbian marriage. This question arose in the National Coalition case but was avoided. Ironically, it was raised by the Department of Home Affairs, the respondent, who argued, in both the court a quo and the Constitutional Court, that the matter brought by the applicants was not ripe for constitutional determination. 24 It was argued that a regional committee of the Department could interpret 'spouse', as contained in the relevant provision, to include a same-sex life partner. It was, therefore, unnecessary to consider the constitutional validity of this provision. In dismissing this argument, the Court relied in the first instance on the definition of 'spouse' in the New Shorter Oxford Dictionary as connoting a 'married person; a wife, a husband'. 25 Nothing in the Act suggested a wider meaning. Secondly, the use of the term 'marriage' in the Act also 20 21 22 23 24 25 parents objected to the relationship and obtained an order removing the daughter from her mother on the rather spurious grounds that the daughter did not wish to reside with her mother, that the mother and her partner 'do things which the minor child cannot or is afraid to speak of' and that the daughter was suffering psychological damage. After protracted delays largely at the hands of government officials, the applicant approached the High Court requesting that the order of removal be set aside. Once again, without detriment to her application, the applicant disclosed her sexual orientation in her court papers. The court ordered the return of the child and awarded punitive costs against the respondents on an attorney and client scale. See LA Minot Conceiving Parenthood: Parenting and the Rights of Lesbian, Gay, Bisexual and Transgender People and their Children (International Gay and Lesbian Human Rights Commission, 2000) 96-98. CPO II October 1999, unreported. In this case the applicant was involved in a motor vehicle accident. His passenger was his partner with a limited claim on the Multilateral Motor Vehicle Fund. This made the applicant liable for the remainder of his partner's claim and accordingly the applicant relied on his own insurer, the respondent. The respondent repudiated the claim, alleging it was not liable for claims in respect of family members. The court upheld the repudiation in finding that the applicant's partner was a member of his family. 2000 (8) BCLR 837 (CC) (dealing with immigration permits for foreign spouses). Ibid para 31 (internal footnotes omitted). There have been a number of statutory changes as well; see National Coalition para 37 fn 41. For a fuller explanation of ripeness, see National Coalition para 22. Ibid para 25. (2000) 16 SAJHR 317 indicated that the term 'spouse' was used for a partner in a marriage and that the term marriage extended no 'further than those marriages that are ordinarily recognised in our law'?6 Finally, if the term 'spouse' could have been given a more extensive meaning, the Court reasoned that it would have been unnecessary to have provided in the definition section of the Act that 'marriage' includes a customary union where the definition of customary union was based on an opposite-sex relationship. 27 By relying first of all on a dictionary definition, secondly on the meaning of a word 'ordinarily recognised in our law' and, thirdly, by applying a narrow legislative interpretation, the Court could not by its own restrictive parameters have come to a conclusion any different to that of the current law. Such avoidance of constitutional interpretation may prove to be an obstacle for future litigation concerning the definition of gay and lesbian marriage. It is not that we are bound by this narrow definition (in fact the Court's avoidance of the issue might be a reason why it will require future constitutional analysis), but there are dicta in the judgment which, if followed, could lead to an institution alternative to marriage being used to recognise gay and lesbian relationships. Having come to the conclusion that it was not possible to construe the term 'spouse' to include same-sex partners, the Court nevertheless proceeded to affirm gay and lesbian relationships in the most positive way. The Court commenced its discrimination analysis by building on the jurisprudence it had established in its Sodomy decision: The denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many ways. This is deeply demeaning and frequently has the cruel effect of undermining the confidence and sense of self-worth and self-respect of lesbians and gays. 28 The Court went on to dismiss certain stereotypes discriminatory of gays and lesbians, most notably in respect of children. Although a gay and lesbian couple could not jointly adopt a child, an adopted child by one of the partners could be loved, cared and provided for jointly by both partners?9 Most significantly, the Court held that in all respects a samesex partnership resembled a marriage and that gay and lesbian families' lives are indistinguishable from that of spouses: (i) (ii) (iii) (iv) .. . .. . .. . gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of expressing and sharing love in its manifold forms, including affection, friendship, eros and charity; (v) they are likewise as capable of forming intimate, permanent, committed, monogamous, loyal and enduring relationships; of furnishing emotional and 26 27 28 29 Ibid. Ibid para 26. Ibid para 42. Ibid para 50. 318 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM spiritual support; and of providing physical care, financial support and assistance in running the common household; (vi) they are individually able to adopt children and in the case of lesbians to bear them; (vii) in short, they have the same ability to establish a consortium omnis vitae; (viii) finally, and of particular importance for purposes of this case, they are capable of constituting a family, whether nuclear or extended, and of establishing, enjoying and benefiting from family life which is not distinguishable in any significant respect from that of heterosexual spouses. 30 Having established the extent of the discrimination against gays and lesbians, the Court had no difficulty in concluding that s 25( 5) of the Act constituted unfair discrimination and a limitation of the 'right of gays and lesbians who are permanent residents in the Republic and who are in permanent same-sex life partnerships with foreign nationals.3 1 to equality. The court also concluded that the subsection constituted a 'severe limitation of the s 10 right to dignity enjoyed by such gays and lesbians'. 32 The Court found there to be no justification in the discrimination 33 and took the unusual and creative step of reading into the section, 'after the word "spouse", the following words: "or partner, in a permanent same-sex life partnership" '? 4 Ill JURISPRUDENTIAL DEVELOPMENTS The National Coalition judgment constitutes another milestone for gay and lesbian legal equality in South Africa. A unanimous Constitutional Court acknowledged widespread discrimination against gays and lesbians. The positive and affirming tone of the judgment justify its placement among leading decisions in the world in advancing gay and lesbian equality jurisprudence. The strategic question facing proponents of gay and lesbian equality within the National Coalition for Gay and Lesbian Equality and elsewhere is how to build on the gains made thus far and specifically how to advance partnership rights. 35 The critical question to ask is to what extent have changes in the law in respect of gays and lesbians made an impact? Here it is useful to distinguish between jurisprudential developments, impacts on social attitudes, and direct impacts on the lives of individual gay and lesbian litigants and on the affected class. This note is concerned principally with jurisprudential developments with regard to gay and lesbian equality and dignity. Not only has constitutional protection in the equality clause been the 30 31 32 33 34 35 Ibid para 53. Ibid para 57. Ibid para 57. Ibid paras 58-60. Ibid para 86. Thus far the most significant gains have largely been at the instance of the National Coalition for Gay and Lesbian Equality, which has either lobbied or litigated (or assisted in litigation) to change the law. See P Gerber 'Case Comment: South Africa: Constitutional Protection for Homosexuals- A Brave Initiative, But is it Working?' (2000) 9 Australasian Gay & Lesbian LJ 37. More specifically, the NCGLE's work has centred around the organisation's Recognise our Relationships campaign as set out in its various annual reports. (2000) 16 SAJHR 319 foundation upon which all gay and lesbian law has developed, but without doubt constitutional protection constituted a significant affirmation of all gays and lesbians. Constitutional protection was arguably the most significant reason behind changed public attitudes toward gays and lesbians. The direct impact that legal and social acceptance has had on the lives of gays and lesbians should not be underestimated. The Sodomy judgment, which decriminalised gay sex, confirmed that affirmation. Although it probably had significantly less direct impact on gays and lesbians, 36 it laid a solid foundation, relying principally on the right to equality, but also on dignity and privacy, on which further developments in gay and lesbian rights have been and can be based. Significant changes have also taken place in the area of employment law which prohibit discrimination against gays and lesbians. These changes have been brought about statutorily and affect a wide range of issues from non-discrimination in hiring practices to the extension of medical aid and pension benefits. 37 The National Coalition case has added significantly to the growing body of gay and lesbian jurisprudence. Together with the custody judgments discussed above, gay and lesbian family membership is now affirmed and legally recognised. These decisions have largely dispelled fears about gay and lesbian parenting, and accordingly law relating to custody and adoption will be easier to develop. At this point, it is arguable that the most important legal and jurisprudential development that gays and lesbians could achieve is that of the right to marry. 38 It is an important right for a number of reasons. 36 This argument is not at odds with Cameron's assertion: The criminal prohibitions on sex between men as well as the differential age of consent for gay men and women have a severely negative impact on the lives of these people. Even when these provisions are not enforced, they reduce men and women to what one author has referred to as 'unapprehended felons', thus entrenching stigma and encouraging discrimination in employment and insurance and in judicial decisions about custody and other matters bearing on orientation. E Cameron 'Sexual Orientation and the Constitution: A Test Case for Human Rights' (1993) 110 SALJ 450, 455 (internal footnotes omitted.) I am arguing that negative social attitudes diminished significantly as a result of the enactment of the equality provision in the interim Constitution. In other words, changes in the law, whether legislative or judicial, impact on society. By the time of the Sodomy judgment (note 2 above), gay and lesbian stereotyping was on the decrease. Most obviously, constitutional protection opened the route to eliminating discrimination in employment, insurance, custody and other sexual orientation issues. 37 See specifically the Labour Relations Act 66 of 1995 (which prohibits dismissal on the ground of sexual orientation), the Basic Conditions of Employment Act 75 of 1999 (s 27 deals with 'family responsibility leave'), the Employment Equity Act 55 of 1998 (which prohibits unfair discrimination on the grounds of sexual orientation in any employment policy or practice), and the Medical Schemes Act 131 of 1998. See also the decision of the Pension Funds Adjudicator in TWC v Rentokil Pension Fund Pension Funds Adjudicator Case PFA/KZN/ 129/98 (26 October 1998). And see also M Jara 'Workplace Rights: A Gay and Lesbian Issue' (1996) 20(6) South African Labour Bulletin 21 and M Jara 'Gay and Lesbian Rights' (1997) 21 ( 6) South African Labour Bulletin 31. 38 This is contrary to the argument by Cameron (note 36 above) 471: [G]enuine recognition of non-discrimination on the ground of sexual orientation would entail granting some recognition to permanent domestic partnerships. This need not take the 320 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM First, It IS a right that will be immediately accessible to all gays and lesbians. Secondly, it is important in as much as marriage constitutes the symbolic foundation upon which heterosexual society is built. Admission to the institution of marriage may thus constitute the most important test for determining the extent to which gays and lesbians will be treated equally. Thirdly, it will be a logical culmination of the Court's developing sexual orientation jurisprudence. Marriage is much more than a union between two people: it constitutes a social endorsement of a relationship that if extended to gays and lesbians will enhance their social acceptance. Significant consequences flow from marriage, including not only social but also economic stability. Marriage is thus much more than a legal entity and the extension of marriage to gays and lesbians will have ramifications far wider than the legal consequences of marriage. Marriage has a uniquely privileged status in society - to withhold that privilege from gays and lesbians will be to deny them equality, dignity and the freedom to choose with whom to associate and also autonomy in making significant decisions about their personal lives. It is therefore a pity that the definition of marriage was raised in such an oblique manner and dealt with perfunctorily at the beginning of the National Coalition judgment. This approach could have significant legal and social consequences for gays and lesbians. It is inevitable that the issue of gay and lesbian marriage will come before the Court some time in the future. It is regrettable that the Court has already expressed itself, albeit indirectly, in this regard. Although National Coalition is relevant specifically to the Aliens Control Act, 39 and dealt with the definition of 'spouse' rather than 'marriage', it will need to be addressed in future decisions and so constitutes an obstacle to the achievement of gay and lesbian equality activism. But far more importantly, and possibly constituting a more significant obstacle, is the creation of a new legal institution by the Court, namely, that of a 'permanent same-sex life partnership'. Although the Court specifically declined to comment on to what extent, if at all, 'the law ought to give formal institutional recognition to same-sex life partners', 40 the judgment does create a legal space for the form of extending heterosexual marriage, which both by name and tradition may well be unnecessary and inappropriate. (internal footnotes omitted) It should be noted that these words were written in 1992, prior to any certainty that nondiscrimination on the ground of sexual orientation would be constitutionally protected. Furthermore, the issue of same-sex marriage had not yet been debated in South Africa as the right seemed to be unattainable at that time. Since the enactment of both the interim and 1996 Constitutions, gay and lesbian jurisprudence has changed to such an extent that Cameron's comments are of historical rather than contemporary importance. 39 It is important to note that in coming to the conclusion that the term 'spouse' did not include gay and lesbian couples, the Court explicitly confined itself to the Act: 'Under all these circumstances it is not possible to construe the word "spouse" in s 25(5) as including the foreign same-sex partner of a permanent and lawful resident of the Republic' (National Coalition para 26). 40 Ibid para 60. (2000) 16 SAJHR 321 statutory recogmtwn for what have been variously termed domestic partnerships or civil unions. This is an option that has been followed in a number of north European jurisdictions and most recently in the American State of Vermont. The civil unions of the European jurisdictions are not equivalent to marriage as they typically restrict the right to adoption and other consequences of marriage such as donor insemination and adoption of a spouse's surname. 41 But the Vermont legislation is different. In April 2000, the State of Vermont enacted the most far-reaching legislation in respect of civil unions (the Vermont Act). 42 Section l of the Vermont Act, dealing with Findings of the General Assembly, states that '[t]he state has a strong interest in promoting stable and lasting families, including families based upon a same-sex couple' 43 and '[w]ithout the legal protections, benefits and responsibilities associated with civil marriage, same-sex couples suffer numerous obstacles and hardships'. 44 The Vermont Act proceeds to set out in detail the content of a civil union giving it the same content as marriage: 'Parties to a civil union shall have all the benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.' 45 While the Vermont Act must be acknowledged as a remarkable piece of legislation, it not only perpetuates but entrenches inequality between gay and lesbian couples and heterosexual couples. The Vermont Act is explicit that marriage is a 'union between a man and a woman' 46 and a civil union is restricted to persons 'of the same sex and therefore excluded from the marriage laws of this state'. 47 The Act therefore recreates the discredited 'separate but equal' doctrine of racial legislation in the context of same-sex relations. By granting gay and lesbian unions all the rights and obligations of marriages it would appear to be granting substantive equality- denial of the name of marriage would appear to be a denial of formal equality only. However, as argued above, the denial of the name of marriage to gays and lesbians denies them more than the name and thus denies them substantive equality. Marriage remains a privileged social institution for heterosexual couples, but most 41 See MP Boberg 'The Registered Partnership for Same-sex couples in Denmark' (1996) 8 Child & Family LQ 147 and M Roth 'The Norwegian Act on Registered Partnership for Homosexual Couples' (1996-97) 35 University of Louisville J of Family L 467. 42 Act 91: Act Relating to Civil Unions (which came into effect on I July 2000). The statute was a 43 44 45 46 47 direct result of Vermont's Supreme Court's decision in Baker v State which held that the state had a 'constitutional obligation to extend to plaintiffs the common benefit, protection, and security that Vermont law provides opposite-sex married couples' (www.lambdalegal.org/ sections/library/decisions/vermont December 1999). Act Relating to Civil Unions (note 42 above) s 1(7). Ibid s I (8). Ibid s 3. Ibid s 1(1). Ibid s 3. 322 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM importantly retains the exclusivist traditional and religious content and the less tangible connotations of marriage. The Vermont Act states: Extending the benefits and protections of marriage to same-sex couples through a system of civil unions preserves the fundamental constitutional right of each of the multitude of religious faiths in Vermont to choose freely and without state interference to grant the religious status, sacrament or blessing of marriage under the rules, practices or traditions of such faiths. 48 It is in this formulation that we see that the denial of the name of marriage amounts to a denial of substantive equality. The denial of the name was of course achieved through a complex statutory process that, while retaining the appearance of marriage, simultaneously denied gays and lesbians spiritual and religious equality. 49 It is significantly the spiritual and religious content of marriage that accords marriage the socially privileged status that it has. When gays and lesbians wish to marry it is not only legal equality that they desire but also the socially accepted status of being married. The Vermont Act's bracketing off of the religious, spiritual and less tangible content of marriage from civil unions seems to be paying undue deference to religious orthodoxy in the guise of religious freedom. This is done at the expense of gays and lesbians whose freedom of religion is instead violated. The Vermont Act fails to create an institution that upholds the equality of gays and lesbians as well as the freedom of religion of both heterosexuals and gay and lesbian couples. IV POSSIBLE FUTURE DEVELOPMENTS There are many routes that South Africa could go in seeking to create equality for gay and lesbian relationships. The retention of marriage as an exclusivist institution and the creation of a separate institution for gays and lesbians (even if it were an institution available to heterosexuals as well) would be by definition a violation of equality. Neither the Vermont Act nor the north European models are satisfactory. However, the National Coalition case, in its recognition of 'permanent same-sex life partnership' alongside 'spouse', has already laid the legal foundation for separate institutions. Furthermore, the South African Law Commission is currently researching the legislative recognition of domestic partnerships. It is possible, therefore, that Parliament will pre-empt any Constitutional Court decision in this regard and establish a civil union not unlike the Vermont model. Another option would be to strip ministers of religion of their state authority and grant no legal recognition to religious marriages. Although this would result in equality for all who wish to get married, it would simultaneously, and unnecessarily, infringe the freedom of religion of 48 Ibid s 1(11). 49 If substantive equality was what was being sought it would have been much easier to have admitted gays and lesbians to the institution of marriage rather than creating a look-alike institution. (2000) 16 SAJHR 323 those persons whose religious marriages are recognised. If religious marriages continue to receive state sanction, then would an extension of marriage to gays and lesbians infringe on the religious freedom of others? No religious group can claim an absolute right to define marriage. South Africa has an unfortunate history in this regard in that only Christian marriages once received state recognition. 50 The extension of marriage to other religions and customary unions has not impinged on the right of Christians to marry. All it has removed is their absolute claim on marriage, which was not constitutionally acceptable. The only constitutionally acceptable solution is to extend to gays and lesbians the right to marry. They may then do so with the full religious blessing of whatever faith wishes to marry them. This extension could be achieved by legislation. Such a controversial step is, however, unlikely. Extension will in all probability only be achieved by the Constitutional Court. But will the Court uphold such a claim? Its jurisprudence in this regard is somewhat ambivalent. There are numerous grounds on which such a claim could be made, notably the right to equality, the right to privacy and the right to dignity. 51 The first indication of possible judicial acceptance of gay and lesbian marriage can be found in the Sodomy judgment where Ackermann J stated: The issues in this case touch on deep convictions and evoke strong emotions. It must not be thought that the view which holds that sexual expression should be limited to marriage between men and women with procreation as its dominant or sole purpose, is held by crude bigots only. On the contrary, it is also sincerely held, for considered and nuanced religious and other reasons, by persons who would not wish to have the physical expression of sexual orientation differing from their own proscribed by the law. It is nevertheless equally important to point out, that such views, however honestly and sincerely held, cannot irifluence what the Constitution dictates in regard to discrimination on the grounds of sexual orientation. 52 (emphasis added) Yet in the National Coalition case Ackermann J seems to retreat from this position. Admittedly the issue of marriage was not directly before the Court, but only the definition of spouse. Even this issue, however, was not thoroughly canvassed. Secondly, the Court's creation of a legal construct, 'permanent same-sex life partnership', suggests that the Court may already be considering an institution other than marriage through which to recognise gay and lesbian relationships. This position may be contrasted with the recent judgment of O'Regan J in Dawood: 53 The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the 50 See Amod v Multilateral Motor Vehicle Accidents Fund (Commissioner for Gender Equality Intervening) 1999 (4) SA 1319 (SCA) and Naude v Fraser 1998 (4) SA 539 (SCA). 51 Other writers have extensively commented on the cogency of these claims and it is not my intention here to reconsider these arguments. See generally B Grant 'Comments and Cases on Same-sex Marriage' (1996) 12 SAJHR 568. 52 Note 2 above, para 38 (internal footnotes omitted). 53 Note 21 above. 324 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM establishment of such a relationship impairs the ability of the individual to achieve personal fulfilment in an aspect of life that is of central significance. In my view, such legislation would clearly constitute an infringement of the right of dignity. 54 The right to dignity is here given extensive content. Coupled with equality protection for gays and lesbians, it would now be difficult for the Constitutional Court to refuse gays and lesbians the right to marry. Such a decision would undermine the Court's own equality and dignity jurisprudence that has been built not least upon the grounds of sexual orientation and marital status: South African families are diverse in character and marriages can be contracted under several different legal regimes including African customary law, Islamic personal law and the civil or common law. However, full legal recognition has historically been afforded only to civil or common-law marriages. Even if the legal implications of the marriage differ depending on the legal regime that governs it, the personal significance of the relationship for those entering it and the public character of the institution, remain profound. In addition, many of the core elements of the marriage relationship are common between different legal regimes. 5 5 In light of the extension of marriage to different faiths and customs and the developing jurisprudence in Dawood, gay and lesbian activists should not narrowly call for their right to marry but instead for the equal right of all to marry. RONALD LOUW * Senior Lecturer in Law, University of Natal, Durban Co-chairperson, National Coalition for Gay and Lesbian Equality MISSION IMPOSSIBLE: TRADE UNION AND PROTEST ACTION RIGHTS IN THE MILITARY SOUTH AFRICAN NATIONAL DEFENCE UNION V MINISTER OF DEFENCE I INTRODUCTION A class of men set apart from the general mass of the community, trained to particular uses, formed to peculiar notions, governed by peculiar laws, marked by peculiar distinctions. 1 27 Aprill994 marked a turning point in South African history. A system of atrocious racist policies was replaced by one of democratic values. 54 Ibid para 37. 55 Ibid para 32. * This article was written in my academic capacity. I wish to express my thanks to Zackie Achmat for helpful comments on earlier drafts. I M Howard Soldiers and Government (1957) II. (2000) 16 SAJHR 325 Recognition of equality and human dignity emerged with the adoption of the interim Constitution 2 and the first democratic elections. This newfound freedom needs to be protected from both internal and external aggression. The responsibility for doing so lies primarily with the South African National Defence Force (SANDF). Once the instrument of government aggression, the Defence Force has now become the protector of our new democracy. To fulfill this role effectively, the SANDF needs to be disciplined and loyal to the state. In South African National Defence Union v Minister of Defence 3 (SANDU) the Court had to determine whether members of the SANDF should be entitled to participate in protest action and whether members should be entitled to form and join trade unions. The issue was whether or not such rights would challenge the discipline of the military. Should these democratic rights be denied to the protectors of democracy in order to maintain it? II PRE-CONSTITUTIONAL COURT SKIRMISHING Before the 1994 elections, protest action in the form of stayaways was a common occurrence in South Africa, 4 despite its illegality. When the Labour Relations Act 66 of 1995 was drafted, special provision was made for protest action. The 1995 Act, following the advice of the International Labour Organisation (IL0), 5 allows workers to participate in protest action provided that the aim of the action is to promote the workers' socio-economic interests and that it is not purely political in character. 6 Workers participating in protest action are also required to follow a stringent procedure before undertaking such action. 7 The 1995 Labour Relations Act, however, did not apply to members of the SANDF. 8 SANDF members were still governed by the Defence Act 44 of 1957 (the 2 Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution). 3 1999 (4) SA 469 (CC). 4 D du Toit eta! The Labour Relations Act of 1995 2 ed (1998) 243. Employees often protested against the previous government's political and socio-economic policies. Such actions were illegal in terms of the Labour Relations Act 28 of 1956 and many employees were dismissed for participating. See A Basson et al Essential Labour Law Volume 2: Collective Labour Law I ed (1998) 154. 5 In 1992, the International Labour Organisation's Fact-Finding and Conciliation Commission on Freedom of Association investigated the validity of certain provisions of the 1956 Labour Relations Act. They were critical of the narrow definition of strikes in the Act arguing that employees should be allowed to partake in protest strikes aimed at criticising the government's economic and social policies provided that they were not purely political in character. See the ILO Report of the Fact Finding and Conciliation Commission on Freedom of Association concerning the Republic of South Africa (May-June 1992). 6 Section 213 of the Labour Relations Act 66 of 1995 (the LRA) defines protest action as 'the partial or complete concerted refusal to work, or the retardation or obstruction of work, for the purpose of promoting or defending the socio-economic interest of workers, but not for a purpose referred to in the definition of a strike'. 7 See s 77 of the LRA. 8 In terms ofs 2 of the LRA, the Act does not apply to members of the National Defence Force, the National Intelligence Agency and the South African Secret Service. 326 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Act). Participation in protest action was prohibited in terms of ss 126B(2)9 and 126B(4) 10 of that Act. Likewise, SANDF members could not be members of trade unions in the immediate post-apartheid era. Trade union movements emerged as a response to exploitation by employers. The employment relationship is contractual in nature. The parties are, however, rarely on an equal footing. Employers have generally far greater bargaining power than employees, who are usually in abundance. This often led to the exploitation of employees. To cater for this problem, most states have adopted legislation setting minimum standards of employment for employees. 11 Another response to exploitation is the creation of trade unions. Instead of acting individually, employees act collectively. With the aid of trade unions, the bargaining power of employees improves and they are able to negotiate better conditions of employment. 12 'It is only through unity of purpose and control of the supply of labour that workers can counter managerial power.' 13 This response is however often denied to 9 Section 126B(2) read: Without derogating from the provisions of sections 4(h) and 10 of the Military Discipline Code, a member of the South African Defence Force who is subject to the said Military Discipline Code, shall not strike or perform any act of public protest or participate in any strike or act of public protest or conspire with or incite or encourage, instigate or command any other person (whether or not such person is a member of the South African Defence Force or an officer or employee referred to in section 83A(2) serving in the South African Defence Force or a member of any auxiliary or nursing service established under this Act) to strike or to perform such an act or to participate in a strike or such an act. 10 Section 126B(4) read: For the purpose of subsection (2) 'act of public protest' means any act, conduct or behaviour which, without derogating from the generality of the aforegoing, includes the holding or attendance of any meeting, assembly, rally, demonstration, procession, concourse or other gathering and which is calculated, destined or intended to influence, support, promote or oppose any proposed or actual policy, action, conduct or decision of the Government of the Republic of South Africa or another country or territory or any proposed or actual policy, action, conduct or decision of any public or parastatal authority of the Republic or another country or territory or to support, promote, further, oppose or publicize any real or supposed private or public interest, object, principle, cause, concern, demand or claim, grievance, objection or outrage or to indicate, demonstrate or display real or supposed private or public support for, opposition or objection to, dissatisfaction, sympathy, association or solidarity with, or concern or outrage regarding any such policy, action, conduct, decision, interest, object, principle, cause, concern, demand or claim, grievance, objection or outrage, or to do so in relation to any event or occurrence of national or public concern or importance or significance, or eliciting national or public concern or interest, in such manner as to attract or direct thereto, or be calculated, destined or intended to attract or direct thereto, the attention of: (i) any such Government or authority; (ii) any other country, territory or international or multinational organization, association or body; or (iii) the public or any member or sector of the public, whether within or outside the Republic; 'strike' means any strike as defined in section I of the Labour Relations Act, 1956. II The South African variant is the Basic Conditions of Employment Act 75 of 1997. 12 Basson (note 4 above) 2. 13 M Finnemore Introduction to Labour Relations in South Africa (1999) 4. (2000) 16 SAJHR 327 persons within the armed forces of a state. In deciding whether or not to grant Defence Force members trade union rights, states are faced with two conflicting values: maintaining a disciplined defence force necessary for state security versus the granting of trade union rights essential for effective collective bargaining. South Africa opted for the former value. As noted above, members of the permanent force were denied trade union rights by ss 126B(l) 14 and 126B(3) 15 of the Defence Act. The SANDF case began when the constitutional validity of these restrictions was challenged in the Transvaal Provincial Division. 16 Hartzenburg J struck down s 126B(4) of the Act as unconstitutional in its entirety. He also declared subsection (2) unconstitutional, but only where it made reference to public protest. On the trade union issue, the court struck down subsections (1) and (3). The orders were all suspended until 31 December 1999. The orders were referred to the Constitutional Court for confirmation in terms of s 172(2) of the 1996 Constitution. 17 The South African National Defence Union requested that the orders made by Hartzenburg J be confirmed. The Minister of Defence and the Chief of the Defence Force did not oppose the confirmation of invalidity of subsection (4) and parts of subsection (2), which prohibited members of the SANDF from participating in protest action. They did, however, oppose the confirmation of the order of invalidity in respect of s 126B(l), which denied members of the Defence Force trade union membership. In any event, the Constitutional Court still had to confirm the orders. III THE JuDGMENT oF THE CoNSTITUTIONAL CouRT (a) Participation in Protest Action The Court first considered the constitutional validity of the prohibition on members of the SANDF from participating in protest action as mentioned in s 126B(2) and defined in s 126B(4). In particular, it considered whether this prohibition violated the right to freedom of expression entrenched in s 16 of the 1996 Constitution. The Court held that freedom of expression is of fundamental importance. It lies at that heart of democracy and is important to the search for the truth. Against this background, the definition of protest action in s 126B(4) was overly broad and unclear. The definition was very lengthy. Its grammatical 14 Section 126B( I) read: A member of the Permanent Force shall not be or become a member of any trade union as defined in section I of the Labour Relations Act, 1956 (Act 28 of 1956): Provided that this provision shall not preclude any member of such Force from being or becoming a member of any professional or vocational institute, society, association or like body approved by the Minister. 15 Section 126B(3) read: 'A member of the South African Defence Force who contravenes subsection (I) or (2), shall be guilty of an offence.' 16 SA Defence Union v Minister of Defence 1999 (3) BCLR 32 (T). 17 Constitution of the Republic of South Africa Act 108 of 1996 (1996 Constitution). 328 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM structure was clumsy and its overall meaning elusive. The broad definition criminalised a wide range of conduct. It also did not distinguish between on- and off-duty Defence Force members. Nor was any distinction drawn between a public meeting and a private meeting in one's own home. The Court concluded that s l26B(2) read with s 126B(4) clearly infringed a Defence Force member's right to freedom of expression. 18 For the majority, O'Regan J then went on to consider whether the prohibition justifiably limited the right to freedom of expression as contemplated in s 36 of the 1996 Constitution. One of the reasons for prohibiting members of the Defence Force from participating in protest action is because it is important that they act in a manner that encourages confidence and trust in their dispassionate observation of their duties. To do so they must not act in a partisan political fashion, as recognised by s 199(7) of the 1996 Constitution. The Court, however, found that s 126B(2) read with s 126B(4) went further than necessary. It seemed to require that members of the SANDF detach themselves from society. It prohibited members from forming, airing and hearing opinions on matters of public interest even when they are off duty. Thus the court held that s 126B(2) read with s 126B(4) was not saved by the limitations clause. 19 O'Regan J next looked at whether or not it was possible to sever the overly broad parts of the definition of public protest from s 126B(4) of the Act. In this way only certain forms of public protest would be prohibited and therefore s l26B(2) saved. O'Regan felt that it was not possible to sever parts of the definition since the definition was too clumsily worded and opaque. A remodelled definition by the Court would also have the danger of not bearing any resemblance to what the legislature may have originally intended. The whole of the definition in s 126B(4) was therefore severed from the Act. With regard to s 126B(2), only references to public protest were severed. The remainder of s 126B(2) relating to the prohibition of strike action and the prohibition of the incitement to strike action were left intact. 20 Another issue that the Court had to determine was whether or not its order should be suspended. The Constitutional Court disagreed with the High Court's order of suspension and declared that its order should take immediate effect. Any lacuna arising from the invalidity of the provision, the Court held, could be filled by the prohibition contained ins 146 of the Military Discipline Code, which provides that any person who 'causes actual or potential prejudice to good order and military discipline' shall be guilty of an offence? 1 18 19 20 21 SANDU paras 6-9. Ibid paras 10-13. Ibid paras 14-15. Ibid paras 37-39. (2000) 16 SAJHR 329 (b) Membership in Trade Unions In this part of its judgment, the Court had to determine whether ss 126B(l) and 126B(3) of the Defence Act violated s 23(2) of the 1996 Constitution. Section 23(2) provides that '[e]very worker has the right(a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike.' The Court first had to determine whether members of the permanent force constitute workers as contemplated in s 23. Looking at the whole of s 23, the Court held that it applies to a situation where a contract of employment is entered into between two parties. Members of the permanent force do not enter into a contract of employment; instead they enroll in the permanent force. Despite this, the Court felt that the relationship between members of the permanent force and the Defence Force is, with the exception of the way in which members are disciplined, largely akin to an employment relationship. Members of the permanent force receive salaries and allowances. They are also entitled to certain benefits often found in employment relationships such as leave, medical aid insurance and transport expenses. 22 In determining whether the words 'every worker' in s 23 applied to members of the Defence Force, the Court also looked to international law for guidance. In particular, it looked at arts 2 and 9(1) of the Freedom of Association and Protection of the Right to Organize Convention 87 of 1948. 23 Article 2 recognises the right of workers to form and join organisations of their own choosing. Article 9 on the other hand leaves it open to the discretion of member states to determine the extent to which these provisions should apply to members of the armed forces. The court felt that this meant that the words 'every worker' in s 23 should be interpreted to include members of the permanent force. 24 Since s 23(2) was interpreted to include members of the permanent force, s 126B(l) was held to infringe their right to form and join trade unions. The Court now had to determine whether or not this limitation was justified in terms of s 36 of the Constitution. Section 200(1) of the Constitution requires that the Defence Force be structured and managed as a disciplined military force. The respondents argued that if members of the permanent force were allowed to exercise their labour rights in terms of s 23 the disciplinary character of the Defence Force would be undermined, with grave consequences for the security of the state. O'Regan J disagreed. It was possible, she held, for members of the permanent Defence Force to be given limited and structured trade union rights without challenging the discipline of the military. Section 126B(l) prohibited more than was necessary to maintain discipline in the military. In providing for a total ban on trade unions in the Defence 22 Ibid paras 19-24. 23 Ibid paras 25-28. 24 Ibid paras 25-29. 330 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Force it clearly went beyond what is reasonable and justifiable in achieving the legitimate state objective of a disciplined military force. Section 126B(l) was therefore declared unconstitutional and invalid. 25 O'Regan J then went on to consider whether or not the Court's declaration of invalidity should take immediate effect or be suspended. The respondent requested that the order be suspended because time would be needed to establish procedures regulating trade unions in the Defence Force. Invalidating s 126B(l) without any regulations might be potentially harmful. Regulations would be needed to avoid disruption to discipline and to ensure that labour relations developed in a constructive and orderly manner. The applicant on the other hand requested that the order take immediate effect since there had already been a long delay. The Court balanced the two interests in ordering that the declaration of invalidity of s 126B(l) be suspended, but only for a period of three months. This, the Court felt, would give the Minister of Defence sufficient time to make regulations concerning trade union rights. The Court further held that if the three-month suspension caused either party substantial prejudice they could approach the Court for a variation of its order. Finally, all references to s 126B(l) were severed from s 126B(3). 26 IV REGULATIONS: SUCCESSFUL REARGUARD ACTION The Court's decision to suspend its order of invalidity for a period of three months forced the Minister of Defence to make regulations with some haste. On 20 August 1999, just before the end of the three-month period, regulations under s 87(1)(rB) read with s 126C of the Defence Act granting labour rights to members of the SANDF were made? 7 With respect to participation in protest action, reg 8 provides that: Members have the right to peaceful and unarmed assembly, demonstration, picket and petition, and to present petitions in their private capacity: Provided that such right shall not be exercised: (a) while in uniform or wearing any part of a uniform or display any insignia linked to the Defence Force, in a manner which indicates in any other way employment in the Defence Force or the Department of Defence; or (b) in respect of any matter concerning either the employment relationship with the Department of Defence or any matter related to the Department of Defence.Z 8 These regulations give effect to the Constitutional Court judgment. They allow SANDF members to participate in protest action. Members are not, however, given a general right to participate in protest action. They are only allowed to participate in protest action in their private capacity 25 26 27 28 Ibid paras 30-36. Ibid paras 40-42. See GN 410 in GG 20376 of 20 August 1999. Regulation 7 provides further that: 'Subject to regulation 8, no member may participate in peaceful and unarmed assembly, demonstration, picket and petition in support of a strike or secondary strike if this relates to any defence matter.' (2000) 16 SAJHR 331 and provided such action does not concern matters relating to their employment relationship with the Department of Defence or any matter related to the Department. Generally, the regulations try to strike a balance between the right to form trade unions and maintaining the disciplined character of the military. Regulation 4 enables members of the SANDF to form military trade unions? 9 A member's right to form a trade union is, however, restricted. Regulation 24 indicates clearly that military professionalism and military discipline should be adhered to at all times by members of military trade unions. Members are also prohibited from participating in strikes 30 and from entering into closed shop or agency shop agreements. 31 They are also prohibited from associating with any other labour organisation, association, trade union or federation that is not recognised or registered. Neither may members affiliate with any political party or organisation. 32 The regulations also try to maintain discipline by ensuring that trade unions do not play a role during certain essential military activities. Thus, members of a military trade union are prohibited from participating in trade union activities while involved in military operations or military exercises or undergoing training as an integral part of a military operation or during military training. 33 Neither may a military trade union liase with its members during such activities. 34 From the date that a state of emergency is declared or when the President has deployed the Defence Force in terms of s 201(2)(b) of the 1996 Constitution, all trade union activities other than administrative and financial functions of the trade union shall be suspended until termination of such declaration or employment. 35 A military trade union is also prohibited from undertaking or supporting any activity, which may impede military operations, military exercises, training during military operations or exercises or the preparation for military operations or exercises or during military training. 36 Military trade unions may also not engage in collective bargaining on matters relating to military operations, military exercises, 29 The regulations grant trade unions limited organisational rights (regs 9-20). Trade unions are allowed representatives who are entitled to assist fellow members (regs 23-27). The regulations also give the unions access to the Department of Defence (regs 33-35) and entitle them to certain collective bargaining rights (reg 36). They are also entitled to access to information that would enable them to perform their function as a trade union (reg 21 ). The regulations establish a Military Arbitration Board (regs 72-80) and allow members to have recourse to the High Court (regs 81-84). The regulations also enable members to form military bargaining councils (regs 62-71). The registration of trade unions is dealt with in regs 41 to 54 and accounting and auditing requirements in regs 55 to 61. 30 Regulation 6. 31 Regulation 19. 32 Regulation 13. 33 Regulation 37(1). 34 Regulation 37(2). 35 Regulation 38. 36 Regulation 39. 332 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM training during military operations or exercises or the preparation for military operations or exercises or during military training. 37 V ANALYSIS (a) Participation in Protest Action As noted above, the Constitutional Court declared the definition of protest action in s 126B(4) of the Act unconstitutional. It also removed any reference made to protest action from s 126B(2). At first glance this may seem to indicate that members of the Defence Force are allowed to participate in any protest action. However, this indication is quickly shattered by O'Regan J's holding that members of the SANDF, when participating in protest action, must still comply with the Military Disciplinary Code, and in particular s 46 thereof. This section 'provides that any person who "causes actual or potential prejudice to good order and military discipline shall" be guilty of an offence'. 38 Section 146 itself is very broad and could prohibit a wide range of protest action. Thus, it not only prohibits conduct that causes actual prejudice to good order and discipline, but also conduct that may cause potential prejudice. Terms such as 'good order' and 'military discipline' are very broad and may cover a wide range of conduct. In the end, therefore, although the Court declared s 126B(4) and parts of s 126B(2) unconstitutional, it does not seem to have given members of the military any real meaningful right to protest action. This does not mean, of course, that soldiers should be blindly obedient. As Sachs J correctly indicated in his minority judgment, 'a blindly obedient soldier represents a greater threat to the Constitutional order than one who [is] ... sensitive to his or her rights and responsibilities under the Constitution.' 39 A soldier could thus refuse to follow unconstitutional and illegal orders. This is manifested ins 199(5) of the Constitution, which provides that 'the security services must act, and must teach and require their members to act, in accordance with the Constitution and the law'. Section 199(6) provides further, that 'no member of any security service may obey a manifestly illegal order'. 40 The Court also indicated that 37 Regulation 40. In terms of reg 36, military trade unions may engage in collective bargaining, and may negotiate on behalf of their members, only in respect of: (a) the pay, salaries and allowances of members, including the pay structure; (b) general service benefits; (c) general conditions of service; (d) labour practices; and (e) procedures for engaging in union activities within units and bases of the Defence Force. 38 SANDU para 38. 39 Ibid para 47. 40 See also s 200(2) of the Constitution, which provides that '[t)he primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.' (2000) 16 SAJHR 333 members should be allowed to participate in protest action in their private capacity. 41 The effect of the judgment on protest action is therefore that members of the Defence Force are still not given any meaningful right to protest action and are still bound by further obstacles found in the military disciplinary code. They can, however, refuse to follow orders that are unlawful and/or unconstitutional and, as the Court indicates, participate in protest action when not on duty. The Court and the regulations' refusal to grant members of the SANDF a general right to protest action is to be welcomed, since the nature of the military requires discipline, loyalty and order. Protest action has the potential to undermine these fundamental values. The Constitutional Court's judgment and the regulations allowing members to participate in protest action in their private capacity are, however, disturbing. Allowing members to participate in protest action in their private capacity could result in one of two situations, depending on one's interpretation of regs 8(a) and 8(b). If these regulations are interpreted broadly, they would prohibit a wide range of protest action in members' private capacity, thereby depriving them of any meaningful right to protest. For instance, reg 8(b) allows members to participate in protest action in their private capacity except in matters relating to the Department of Defence. Most matters in which members of the SANDF are involved could be interpreted to relate directly or indirectly to the Department of Defence. Since the protection of state security lies primarily with the Department of Defence, any threat to the security of the state, no matter how slight, could be seen as a matter relating to the Department of Defence and therefore prohibited. Members of the SANDF who believe that they have acquired the right to protest will become frustrated once they realise that this right is essentially meaningless. This could lead to indiscipline and, in tum, threaten state security. If the words 'matters relating to the Department of Defence' in reg 8(b) are interpreted narrowly, on the other hand, members would be granted a meaningful right to protest. But a narrow interpretation of reg 8(b) is itself problematic for other reasons. Even if they are unrelated to Department of Defence activities in the narrow sense, protests by members of the SANDF, whether on or off duty, may still pose a danger to the security of the country. For instance, suppose members of the Defence Force, in their private capacity, protest against the foreign policy of a particular country. It is unlikely that they will be prepared to assist South Africa if later called upon to do so by the Department of Defence, thus challenging military discipline and state security. (b) Membership of Trade Unions The effect of the Court's judgment in the SANDF case is that a total prohibition on members of the Defence Force from forming trade unions 41 SANDU paras 9 and 12. 334 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM is unconstitutional and they should be allowed to form trade unions in circumstances where there is no threat to the disciplinary nature of the military. Despite the benefits of trade unionism to employees, it is often unclear whether Defence Force members should be granted these rights. 42 The Defence Force is primarily responsible for maintaining state security. The employment of members' expertise for their own advantage would wreck the fabric of society. 43 Trade unions are often in conflict with management. If members of the Defence Force are allowed to form trade unions this may affect the loyalty and order required for a disciplined military force, which may ultimately challenge the security of the state. In order to avoid the indiscipline that could be created by granting members of the SANDF absolute trade union rights, the Constitutional Court and the subsequent regulations have provided them with only limited rights. This is potentially dangerous and may actually lead to the opposite of what is intended. The Constitutional Court judgment may give members of the SANDF the impression that they have acquired extensive trade union rights. In reality, however, the rights they have acquired are worthless since military trade unions are prohibited from partaking in most activities normally undertaken by trade unions. As noted above, they are prohibited from striking and entering into closed shop agreements. On discovering this, members of the SANDF may become frustrated. This could encourage members to partake in unlawful conduct in pursuit of fuller trade union rights, once again undermining the military discipline and ultimately national security. This problem could have been avoided had the Constitutional Court denied members of the Defence Force trade union rights altogether. This would have been possible had the Court taken a more cautious approach to the interpretation of s 23(2)(a), which granted every worker the right to form and join a trade union. O'Regan J indicates that members of the Defence Force are 'workers' as contemplated in the section. One of her reasons for doing so is the alleged support found for this proposition in international law. The conclusion that international law recognises the term 'workers' as including members of the Defence Force is, however, dubious. Article 2 of the Freedom of Association and Protection of the Right to Organize Convention does recognise the right of workers to form and join organisations of their own choosing. But art 9 of the Convention leaves it open to the discretion of member states to determine 42 A number of states have found it difficult to decide whether or not to grant Defence Force members trade union rights. According to L Heinecken ('Court Rules in Favour of Democracy' (I 999) July Salut I 0-11 ), a number of countries have given the military the right to form collective associations. The majority of them have taken the form of professional associations, with very few countries allowing members of the military to form fully-fledged civilian-type trade unions. In most of these countries the power of the trade unions and professional associations is limited. 43 SP Huntington The Soldier and the State: The Theory and Politics of Civil-Military Relations (1998) 14. (2000) 16 SAJHR 335 the extent to which these provisions should apply to members of the armed forces. 44 Therefore, the term 'worker' does not automatically apply to members of the Defence Force, as suggested by O'Regan J. In fact it is left to the discretion of member states to determine whether or not to grant members of the Defence Force these rights. 45 It is submitted that the term 'worker' found in s 23(2) of the 1996 Constitution should not have been interpreted to include members of the Defence Force. Members of the SANDF are not merely employees of the Defence Force as suggested by O'Regan J, but part and parcel of the institution. There is a difference between an institution, to which members of the Defence Force belong, and an occupation consisting of workers. An institution is legitimated in terms of values and norms. An occupation, on the other hand, is legitimated in terms of the marketplace. Members of an institution follow a calling captured in words such as duty, honour and country. They regard themselves as different and separate from society. In an institution, members are expected to perform tasks not limited to their military specialties. They are under the purview of the military organisation, whether on- or off-duty and whether on or off the base. By contrast, workers in an occupation operate within a market. They should enjoy a voice in the determination of their salary and working conditions. The occupational model implies the priority of self-interest rather than that of the organisation. 46 Charles Moskos and Frank Wood give three good reasons why one should opt for a military of the institutional rather than the occupational type. First, for the benefit of mission performance, there is an assumption that institutional identification fosters greater organisational commitment and performance than does occupational identification. The armed forces require certain behaviour from their members that can never be made to serve individual interests, certainly not in the narrow economic sense. Institutional values require an unbounded definition of tasks. Occupationalism, however, defines task boundaries and sets standards of accomplishment that, if met, signify adequate performance. In an occupation the employee need only do the job and no more, whereas in an institution members are motivated to do more than they are supposed to. 47 44 Article 9(1): '[t]he extent to which the guarantees provided for in this convention shall apply to the armed forces and the police shall be determined by national laws and regulations.' 45 Doubts regarding the status of members of the Defence Force as workers also seem to be reflected in Sachs J's judgment. He indicates that instead of relying on s 23(2), which only applies to 'workers', the Court should have relied on the right to freedom of association (s 18 of the Constitution) and the right to fair labour practices (s 23(1)), both of which apply to 'everyone' (SANDU para 48). It is submitted that reliance on these rights would not have made much difference since they would still have been subject to reasonable and justifiable limitations. 46 C Moskos & F Wood (eds) The Military: More Than Just a Job? (1998) 16-17. 47 Ibid 5. 336 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Secondly, occupationalism carries with it the danger of replacing the intrinsic motivation of an institution with the extrinsic motivation of an occupation. Instead of being motivated by the values and principles of the institution the member is instead influenced by extrinsic factors such as salary. This is potentially harmful since the reliance on extrinsic rewards may weaken intrinsic motivation. Assume that the military decides to motivate its members in an important skill by paying them extra for that skill. In this situation we might expect that increasing the extrinsic reward would increase the effort expanded. However, the military person's motivation will possibly decrease if the extrinsic reward is no longer forthcoming. 48 Thirdly, occupationalism may undermine military professionalism. If military functions can be reduced to money then decisions on military organisation and personnel become subject to cost-benefit analysis. An institutional approach, by contrast, never loses sight of the uniqueness of the military organisation in a democratic society. The nation has entrusted its armed forces with the important task of defending the national interest for which members could possibly risk life and limb. 49 One can sympathise with the Constitutional Court's desire to grant trade union rights to the military by interpreting the right generously. In an ideal democracy, it may be important to grant the greatest number of rights to the greatest number of people. The Court should, however, have been more cautious when dealing with the military. Members of the SANDF play a unique role in society. Treating them as workers is a denial of their institutional character and value, which are essential for the protection of our democracy and state security. Trade union rights should have been denied to the SANDF. Such a denial would not have amounted to inferior treatment, but rather a recognition of the SANDF's special role and place in society. VI CONCLUSION The granting of labour rights to the military is dangerous, even more so in the South African context. The SANDF is very volatile. It is made up of a combination of opposing parties. Members of the pre-1994 Defence Force, who were ordered to uphold the principles of apartheid and who saw the liberation movement armies as the enemy, are now forced to work together with them. 50 In attempting to unite these opposing groups, the SANDF should not be given any further obstacles that could possibly 48 Ibid. 49 Ibid. 50 W Gutteridge (ed) South Africa's Defence and Security into the 21st Century (1996) 2. The integration of these forces is not an easy task. It involves a number of issues, which if not done carefully could disrupt the process. According to G Thiart ('The SA Army Post-war and Real Democracy' (1999) August Salut 16), 'a definite effort towards gender equality and determining measures to ensure representativity became a reality ... when seven forces were integrated into the SANDF.' 337 (2000) 16 SAJHR rupture an already unstable organisation. This is especially so in light of the important role that the SANDF is likely to play in our fledgling democracy. Not only is the SANDF responsible for national security, but the order and discipline of the Defence Force may also be relied upon to promote the socio-economic needs of the population. 5 1 In addition to this the SANDF has important obligations internationally and regionally. 52 Whether or not the granting of trade union and protest action rights to the SANDF will pose a threat to the security of the state will ultimately depend on the support such action and organisation gets from members of the SANDF. 53 The question we need to be asking ourselves, however, is whether this is a risk worth taking. MOHAMED ALLI CHICKTAY Lecturer in Law, University of the Witwatersrand THE CONSTITUTIONAL COURT PROVIDES SUCCOUR FOR VICTIMS OF DOMESTIC VIOLENCE S V BALOYI I INTRODUCTION In S v Baloyi 1 the Constitutional Court had occasion to consider the constitutionality of s 3(5) of the Prevention of Family Violence Act 133 of 1993 (the Act). The subsection had been declared invalid by the Transvaal High Court which had referred its finding to the Constitutional 51 J Cock & P Mackenzie From Defence to Development: Redirecting Military Resources in South Africa (1998) 19. According to the authors, the SANDF has resources, equipment, skills and infrastructure that could be used for reconstruction and development. They indicate that the South African navy facilities could be used for training in diving, signals, catering and computers. The SANDF could also be involved in adult education and literacy, in providing health facilities through the South African Medical Services, and in loaning earth-moving and other construction equipment. 52 Gutteridge (note 49 above) 157. The SANDF is to play a key role in a number of ways, eg maintaining regional security, training missions, joint peacekeeping operations, and providing international and regional disaster relief. South Africa, with one of the more powerful armies in Africa, has a potentially important role to play in the Organisation of African Unity. 53 It is uncertain whether members of the SANDF support trade union and protest action rights being given to them. In letters to the editor of the Defence Force journal ((1999) October Sa/ut 9), there were opposing views on whether members should be given these rights. One member rejected these rights, arguing that: '[s]ou unies in die SANW toegelaat word, al is dit net as 'n medium om sekere aangeleenthede te hanteer, sou dit katastrofiese gevolge vir die SANW inhou' [there would be catastrophic consequences for the SANDF if trade unions were allowed, even if just as a mechanism to deal with certain issues]. On the other hand, other members accepted these rights, arguing that 'if you allow soldiers to join a union you make the system more democratic and you reduce exploitation'. 2000 (I) BCLR 86 (CC) ( Baloyi). 338 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Court for confirmation? The High Court's declaration of invalidity was based on three findings: that the subsection under review 'places a reverse onus of proving absence of guilt on a person charged with breach of a family violence interdict', 3 conflicting with the constitutionally protected presumption of innocence, without compelling constitutional justification. The case presented the opportunity for the Constitutional Court to confront the vexed issue of domestic violence, and to balance the need to eradicate domestic violence with the constitutional rights of accused persons to a fair trial. Section 3(5) of the Act reads as follows: The provisions of the Criminal Procedure Act ... 51 of 1977, relating to the procedure which shall be followed in respect of an enquiry referred to in s 170 of that Act, shall apply mutatis mutandis in respect of an enquiry under subsection 4. Section 170 of the Criminal Procedure Act reads: (!) An accused at criminal proceedings who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment prescribed under subsection (2). (2) The court may, if satisfied that an accused referred to in subsection (1) has failed to appear at the place and on the date and at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for his arrest and, when he is brought before the court, in a summary manner enquire into his failure so to appear or so to remain in a attendance and, unless the accused satisfies the court that his failure was not due to fault on his part, convict him of the offence referred to in subsection (I) and sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months. 4 Section 3(5) becomes operative after an interdict has been obtained against a person (almost always a male) in terms of the Act, the interdict has been violated and the violator arrested. Section 3(2) of the Act provides for the alleged violator to be brought before a judge or magistrate as soon as possible. Section 3(4) allows the judge or magistrate, after an enquiry into the alleged violation, either to order the release of the respondent from custody or to convict the respondent as outlined in s 6. 5 2 Although the Prevention of Family Violence Act had been replaced by the Domestic Violence Act 116 of 1998, the Constitutional Court believed it appropriate to deal with the sections under review, since the appellant and others similarly situated would be affected by them. 3 Baloyi para I. 4 Emphasis added. Whether a reverse onus was placed on the appellant was the essence of the enquiry in Baloyi. 5 Section 6 provides as follows: A person who (a) contravenes an interdict or other order granted by a judge or magistrate under section 2(1) or (2); or (b) fails to comply with the provisions of section 4, shall be guilty of an offence and liable on conviction in the case of an offence referred to in paragraph (a) to a fine or imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment and in the case of an offence referred to in paragraph (b) to a fine or imprisonment for a period not exceeding three months or to both such fine and such imprisonment. (2000) 16 SAJHR 339 The Minister of Justice and the Commission for Gender Equality intervened in the action challenging the High Court's decision on three grounds. The first was that the 'alleged violators should not be considered "accused persons" entitled to the presumption of innocence'. 6 Second, even if they are to be treated as such, the sections of the Criminal Procedure Act under review should not be interpreted as imposing a reverse onus. Their third contention was that if the proper interpretation of those sections involved the imposition of a reverse onus, 'then the limitation of the presumption of innocence involved could be justified'. 7 II FACTS The complainant, the wife of an army officer, had been granted an interdict against her husband by a magistrate in Pretoria. The appellant was ordered not to assault the complainant and their child, and not to prevent them from entering or leaving the marital home. The appellant ignored the interdict and subsequently assaulted and threatened to kill the complainant. She complained to the police and, after she signed an affidavit, the police arrested the appellant and brought him before a magistrate to enquire into the alleged breach of the interdict. III THE IssuE oF DoMESTIC VIOLENCE The Court commenced its discussion by addressing the Constitution's requirement that the problem of domestic violence be effectively dealt with. Sachs J embarked on a thoughtful analysis of the need to deal comprehensively and effectively with the problem of domestic violence. Sachs J described the unique 'hidden and repetitive character' 8 of domestic violence, its ubiquity in cutting across class, race, cultural and geographical boundaries and the deleterious consequences for society of its persistence. Moreover, because domestic violence is so gender specific, it mirrors and mimics patriarchal domination in a particularly abhorrent manner. 9 With intellectual precision Sachs J excavated the banality and perceived inevitability of domestic violence, and the imperatives on the government to stem it. He adroitly contextualised the problem as embedded in partriarchy and the continued subordination of women. In their research, women's organisations have uncovered the high levels of 6 Baloyi para 10. 7 Ibid. 8 Ibid para II. It has been estimated that one in every four adult women is regularly assaulted by her partner. Jeni Irish 'Women and Political Violence' (1993) 16 Agenda 7. 9 Ibid para 12. Sachs J's identification of the intransigence of patriarchy in South Africa is not new. Before he was appointed to the Constitutional Court, he wrote a frequently quoted article on the pervasiveness of patriarchy, which he termed the only 'truly non-racial institution in South Africa'. See Albie Sachs 'Judges and Gender: The Constitutional Rights of Women in a Post-Apartheid South Africa' (1990) 7 Agenda I. 340 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM domestic abuse across all sectors of South African society. 10 These disturbing numbers confirm the Court's assessment of the certain normalcy or banality of domestic violence. 11 This analysis is purposely victimcentered, that is, Sachs J detailed the effects of domestic violence on the victims. Moreover, he outlined how the collusion of the state in not rooting out domestic violence undermines its promise of gender equality and nondiscrimination so clearly articulated in the Constitution. 12 Such inaction on the part of the government also contradicts South Africa's international and regional obligations; for example, those under the General Assembly Declaration on the Elimination of Violence Against Women/ 3 the Convention on the Elimination of All Forms of Discrimination against Women 14 and the African Charter on Human and People's Rights. 15 Dealing with the constitutional presumption of innocence, 16 Sachs J cited a list of Constitutional Court decisions that have reiterated this right. 17 He then elaborated on the hybrid (public/private) nature of the Act and analysed the complications that surface when the private (family) domain intersects with the public through the interdict provisions. The interdict proceedings in the Act are situated somewhere between family and criminal law remedies, their purpose being to supplement and enforce those remedies. Citing feminist scholarship on this issue, Sachs J stressed the unique character of domestic violence as a legal problem, because of the 'strange alchemy of violence within intimacy'. 18 Innovative legal skills and methods are therefore essential in combating the problem; and to some 10 For example, a survey conducted by the Human Sciences Research Council found that 43 per cent of women in their survey sample in a Cape Town community had experienced marital rape and assault. '43% of Women Claimed Marital Rape, Assault' The Citizen 18 August 1994, cited in Human Rights Watch/Africa Violence Against Women in South Africa (1995) 45. II Human Rights Watch/Africa (note 10 above) 46-7 reported the following findings in their surveys: 'A man is seen as necessary, especially in the rural areas, to have any hope of economic security, and a degree of violence in a male-female relationship is frequently accepted as normal and inevitable'. See also Catherine Campbell 'Learning to Kill? Masculinity, the Family and Violence in Natal' (1992) 18 J of Southern African Studies 614. Campbell recounts (626) the findings of a survey to probe violence in the family: 'Violence was a common theme in the young respondents' accounts of their sexual relationships. Several respondents referred to the use of violence in what they called the "common practice of forced sex" amongst young people. Violence also played an important role in the territorial control of women'. 12 Of particular relevance to domestic violence is the right ins 12(1) of the 1996 Constitution: 'Everyone has the right to freedom and security of the person, which includes the right- ... (c) to be free from all forms of violence from either public or private sources'. (Emphasis added) 13 GA Res 104 of 1993. 14 {1980) 19 ILM 33. 15 {1982) 21 ILM 58. The Charter was signed by South Africa in 1995 and ratified in 1996. 16 Section 35(3) of the 1996 Constitution provides: 'Every accused person has the right to a fair trial, which includes the right - ... (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.' 17 The Court cites Osman v Attorney-General, Transvaall998 (4) SA 1224 (CC), Parbhoo v Getz NO 1997 (4) SA 1095 (CC), S v Coetzee 1997 (3) SA 527 (CC), S v Mbatha 1996 (2) SA 464 (CC) and S v Bhulwana 1996 {I) SA 388 (CC). 18 Baloyi para 16, citing Joanne Fedler 'Lawyering Domestic Violence Through the Prevention of Family Violence Act 1993- An Evaluation After a Year in Operation' (1995) 12 SAJHR 231. (2000) 16 SAJHR 341 extent the interdict provisions of the Act create the legal space for such a possibility. These provisions require that police officers and other actors in the legal system temporarily jettison attitudes (often negative) about the appropriateness or otherwise of interfering in private family matters. In a country where victims of domestic violence have largely experienced the policy as indifferent to their predicament, these provisions are imperative if the attitudinal shift in policing domestic violence is to occur. The interdict provisions are intended as an 'accessible, speedy, simple and effective process' . 19 It is a proactive mechanism aimed at preventing further violence without being punitive. In the words of Sachs J, 'it seeks preventive rather than retributive justice'. 20 IV Is THE ALLEGED VIOLATOR AN 'ACCUSED PERSON'? Sachs J then went on to deal with the three grounds on which the Act was challenged. The first was whether the alleged violator is 'an accused person' and therefore entitled to the presumption of innocence. Counsel had argued on the basis of Nel v Le Roux 21 that the proceedings under the Act were 'essentially civil in character' 22 and that the arrested person was not an 'accused person' entitled to the right in s 35(3)(h). Nel had dealt with the procedural consequences of the failure to testify when a legal duty to do so has been established. Ackermann J had held that 'the recalcitrant examinee who, on refusing or failing to answer a question, triggers the possible operation of the imprisonment provisions ofs 189(1) [of the Criminal Procedure Act] is not, in my view, an "accused person" '. 23 Ackermann J described the imprisonment provisions of s 189 as 'nothing more than process in aid'. 24 Sachs J however distinguished the Baloyi situation from that which pertained in Nel v Le Raux by pointing out the punitive nature of s 6 of the Prevention of Family Violence Act, which provides for the conviction to a fine or imprisonment for breach of the interdict provisions. Whereas the examinees in Net carried 'the keys of their prison in their own pockets', 25 no such situation existed with violators of the interdict provisions of the Act. Once the enquiry into the alleged violation of the Batoyi para 17. Ibid. 1996 (3) SA 562 (CC). Batoyi para 20. 23 Net (note 21 above) para 11. 24 Ibid. Section 189 of the Criminal Procedure Act provides that: 'If any person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness, or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or refuses or fails to produce any book, paper, document required to be produced by him, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a just excuses for his refusal or failure, sentence him to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an offence [referred to in Part III of Schedule 2], to imprisonment for a period not exceeding five years.' 25 Net (note 14 above) para 11. 19 20 21 22 342 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM Act commences, the complainant essentially had abdicated control of the proceedings to the state. In Sachs J's summary: the objective is not to coerce the will to desist from on-going defiance, but to punish the body for completed violation; and the convicted person carried no keys in his pocket indeed there is nothing in the Act to suggest that he can be released early if either the complainant so wishes, or the judicial officer so decides.2 6 The Court concluded that the alleged violator of the interdict is an 'accused person' and therefore entitled to the presumption of innocence. The Court then went on to discuss whether s 3(5) imposes a reverse onus. Commenting on the 'obscure' 27 nature of the words utilised in s 3 of the Family Violence Act and s 170 of the Criminal Procedure Act, Sachs J examined three possible interpretations of the sections under review. They are summarised in the judgment as interpretations A, B and C. Interpretation A, emphasising the word 'procedure', allows only the importation of the summary procedure, and not a reverse onus. In other words, the protections guaranteed in the Criminal Procedure Act are not suspended; there is therefore no reverse onus interfering with the presumption of innocence. As the Court pointed out, this interpretation lends itself to the approach mandated in s 39(2) of the Constitution: '[w]hen interpreting any legislation ... every court ... must promote the spirit, purport and objects of the Bill of Rights.' Interpretation B embodies the High Court position, namely that s 170 'provides for a procedure which incorporates a reverse onus as a central element'. 28 Interpretation C provides for a reverse onus, but only once the 'accused person' has proved lack of wilfulness on his part. As the Court articulates this interpretation: It presupposes that the judicial officer must first be satisfied beyond reasonable doubt that the interdict has in fact been breached and that only then if the onus placed on the alleged violator to prove on a balance of probabilities a lack of wilfulness on his part. There is a reverse onus, but its reach would be restricted because it would be triggered only after a breach of the interdict has been proved beyond a reasonable doubt. 29 Finding that interpretation C was too 'strained', 30 and not persuaded by the High Court's position (interpretation B), the Court adopted interpretation A as stating the correct legal position. Distinguishing the substantive law question (what must be proved) and the procedural law question (how to prove it), Sachs J pointed out that s 170(2) of the Criminal Procedure Act provides for conviction for failure to attend court proceedings 'unless the accused satisfies the court that his failure was not due to fault on his part'? 1 This shifting of the burden to the Baloyi para 22 (citations omitted). Ibid para 24. Ibid para 27. Ibid para 28. 30 Ibid. 31 Ibid para 29. 26 27 28 29 (2000) 16 SAJHR 343 accused renders the issue one of substantive law, and therefore the procedures of the Criminal Procedure Act are no longer apposite. In short, the presumption of innocence is left undisturbed. Sachs J referred to the need to provide the legislature with latitude in dealing with intransigent social problems that find their way to the courts. He does of course recognise that such latitude exists within constitutionally appropriate limits; however, fairness to the complainant is pre-eminent. This requires that the proceedings are 'speedy and dispense with the normal process of charge and plea', 32 something akin to a bail hearing. Although the case was not mentioned in the Constitutional Court's discussion, the question of the nature of the interdict proceedings under the Act was dealt with by the Cape Provincial Division in 1997. In Rutenberg v Magistrate, Wynberl 3 the applicant applied for review and setting aside of the magistrate's decision on two bases. First, that the magistrate had declined the applicant's request to conduct the hearing (to have the interdict and order for his arrest set aside) in chambers and not in open court. The applicant had argued that the hearings were administrative or quasi-administrative in nature. The second basis was that the magistrate had erred in allowing oral evidence to resolve the disputes of fact on the papers. The Court held that the review had to fail, specifying that the nature of the hearing was judicial. Secondly, the decision of the magistrate 'to receive evidence viva voce and to try the issue in dispute in a summary manner could not be faulted'. 34 The Court suggested that a certain degree of latitude was to be accorded to judicial officers in dealing with the interdict provision ins 2(1) of the Act. Similar sentiments were expressed by Sachs J in Baloyi. V CONCLUSION This judgment is another in a line of cases emanating from the Constitutional Court which is carving out an impressive jurisprudence with respect to women's rights and equality. 35 There is widespread recognition that private violence against women is a cause for great concern. Some would argue that it constitutes a continual violation of women's human rights. The Court places its imprimatur on the need to eradicate such violence, without constraining the constitutional rights of the perpetrators. 32 Ibid para 31. 33 1997 (4) SA 735 (C). 34 Ibid 755F. 35 See, for example, President of the Republic of South Africa v Hugo 1997 (4) SA I (CC), where the court articulated a comprehensive definition of equality to incorporate not just formal equality, but also substantive equality. Similarly, other courts have contributed to this new dispensation of furthering women's rights. See, for example, Christian Lawyers Association of SA v Minister of Health 1998 (II) BCLR 1434 (T) where the High Court confirmed a woman's right to make decisions about her reproductive capacity and the right to exercise control of her body, as articulated in the Constitution. 344 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM The Court's decision is incontrovertible: there is general societal consensus that private violence, indeed any violence, against women is odious and the state ought to deal with this problem aggressively. 36 However, there is still a large gap between ubiquitous cultural attitudes about women, fuelled by a particular brand of South African masculinity37 which gives rise to such violence, and the laudable statements of the Court. Closing this gap will require a recognition that the structural and attitudinal impediments to the 'right to be free from private violence' as articulated in the 1996 Constitution, can only be eradicated by a combination of governmental assaults which include education, access to resources and continued vigilance about the extent and persistence of violence. The Constitutional Court at least is doing its part, but it needs to be bolstered by other institutional arrangements, which will include both legal and extra-legal measures. PENELOPE ANDREWS Professor of Law, City University of New York MAKING THE BILL OF RIGHTS A REALITY FOR GAY AND LESBIAN COUPLES NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY V MINISTER OF HOME AFFAJRS I INTRODUCTION According to Ackermann J, who delivered the judgment on behalf of a unanimous Constitutional Court in this case, 1 there were two questions for decision: 1. Whether it is unconstitutional for immigration law to facilitate the immigration into South Africa of the spouses of permanent South 36 The Domestic Violence Act 116 of 1998, which replaced the Family Violence Act reflects the government's commitment to eradicating domestic violence. For example, the new Act's expansive definition of 'domestic violence' to incorporate physical as well as emotional and economic abuse (and other forms of abuse) recognises the range of suffering perpetrated by abusive spouses. Similarly, the Act's definition of 'domestic relationship' provides protection for spouses who may not be formally married, for example those married according to customary law, or same-sex couples, as well as for a host of family members beyond the spouse, for example, children. Section 2 of the Act imposes a duty on police officers to assist and inform complainants of their rights under the Act. Section 4 of the Act also provides fairly comprehensive provisions to ensure that victims of domestic abuse are able to obtain protection orders against abusive spouses, with the assistance of parties who may have an interest in the complainant's welfare. Section 5-8 allow for streamlined set of procedures to interdict the abuser. 37 Sachs (note 9 above). National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA I (CC) (National Coalition). (2000) 16 SAJHR 345 African residents but not to afford the same benefits to gays and lesbians in permanent same-sex life partnerships with permanent residents of South Africa. 2. Whether, when a court concludes that provisions in a statute are unconstitutional, it may read words into the statute to remedy the unconstitutionality. II FACTS The facts of the case were as follows. After the 1994 elections the National Coalition for Gay and Lesbian Equality (NCGLE) initiated discussions with the Director-General of Home Affairs on a number of issues, including the failure to recognise same-sex relationships for purposes of granting immigration permits under s 25(4), (5) and (6) of the Aliens Control Act 96 of 1991 (the Act). A 'cordial' working relationship developed between the parties, and the Director-General confirmed that exemptions in terms of s 23(b) of the Act would be considered on merit. As a result of the continued requests for express statutory recognition of same-sex relationships for purposes of s 25(4), (5), and (6), at least thirteen temporary exemptions were granted between April and November 1997 under s 28(2) of the Act to foreign same-sex partners of lesbian and gay South Africans. Section 25(4) of the Aliens Control Act sets out the conditions under which an immigration permit may be issued, while s 25(5) makes provision for the issuing of an immigration permit even where the conditions in s 25(4) are not met. Section 25(6) states that the regional committee may refuse to issue a permit where it is not satisfied that a marriage entered into two years before application for such a permit was not contracted for the purpose of evading a provision of the Act. In terms of s 28(2) the Minister of Home Affairs may exempt any person or categories of persons from the provisions ofs 23 (which outlaws entry into the country without a permanent or temporary residence permit), if he is satisfied that there are special circumstances which justify his decision. During 1997 the department changed its attitude and this resulted in a blanket refusal of such exemptions to foreign same-sex partners of South African permanent residents. According to a letter from the DirectorGeneral of Home Affairs to the NCGLE, exemptions could only be granted in 'special circumstances' and the fact that the Act did not cater for same-sex relationships could not be considered as special circumstances. Various steps were taken by the NCGLE to address this situation but to no avail, and an application to declares 25(5) invalid was launched in the High Court. 2 The matter was decided in favour of the applicants and an appeal was lodged by the Minister against this decision. 2 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 1999 (3) SA 173 (C). 346 III FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM RIPENESS OF THE MATTER FOR HEARING The respondents argued that the matter was not ripe for hearing because the applicants had failed to pursue a non-constitutional remedy, which if successful, might have rendered it unnecessary to consider the constitutional validity of s 25(5). This contention had been dismissed by the High Court. Ackermann J agreed with the High Court that the word 'spouse' as used in subsection (5) was not 'reasonably capable of the construction as contended by the respondents'. The respondents had argued that a regional committee may under s 39(2) of the Constitution interpret 'spouse' as including a same-sex life partner. Ackermann J further stated that the ordinary meaning of the word spouse and the use of the word in s 25 of the Act did not recognise it beyond its ordinary meaning of a 'married person, a wife, a husband'. The Justice concluded that under these circumstances it was not possible to construe the word 'spouse' ins 25(5) as including the foreign same-sex partners of a permanent or lawful South African resident. The applicants were therefore not able in law to successfully pursue a non-constitutional remedy, based on such an interpretation of 'spouse'. Ackermann J held that the respondents' contention that the constitutional issue was not ripe for hearing was rightly dismissed by the High Court. IV CONSTITUTIONALITY OF SECTION 25(5) OF THE ALIENS CONTROL ACT Ackermann J held that the respondents could not rely on the contention that South Africa as a sovereign independent state was lawfully entitled to exclude any foreign nationals and that it had absolute discretion to do so. According to Ackermann J, the present case did not involve 'such a category of foreign nationals', but persons who are in intimate life partnerships with people who were permanently or lawfully resident in South Africa. Failure of the Act to give recognition to same-sex life partnerships impacts in the same way on the South African partners as it does on the foreign national partners. Consequently, this case had to be decided on the basis of whether s 25(5) unconstitutionally limited the rights of the South African partners. The Court relied on its previous decision in amongst others, Ferreira v Levin N0, 3 that a litigant who has standing may rely on the objective unconstitutionality of a statute for the relief sought, even though the right unconstitutionally infringed is not that of the litigant in question but some other person. Therefore, the foreign nationals are entitled to rely on any unconstitutional infringement of any of the rights of the South African partners which was brought about by the failure of the Act to grant any recognition to same-sex life partnerships. The Court further examined the limitation by s 25(5) of the right to equality (s 9 of the Constitution) and dignity (s 10). In the High Court's 3 1996 (!)SA 984 (CC). (2000) 16 SAJHR 347 decision, Davis J found that s 25(5) constituted a clear limitation of the s 9 guarantee against unfair discrimination because it differentiated on the grounds of sexual orientation. Furthermore, under s 9(5), such a differentiation being a ground specified in s 9(3) is presumed unfair unless the contrary is established. According to the High Court, the respondents' had not established the contrary. The Constitutional Court held that, as with National Coalition for Gay and Lesbian Equality v Minister of Justice 4 (the 'Sodomy case'), the rights of equality and dignity are also closely related. Ackermann J followed the approach laid down by the Constitutional Court in Harksen v Lane N0 5 and the Sodomy case. He further held that that the differentiation brought about by s 25(5) is of a negative kind because it fails to extend the same advantages or benefits to foreign same-sex life partners that it extends to spouses. Ackermann J rejected the respondents' submission that the conclusion reached by the High Court (that the omission in s 25(5) was a differentiation based on sexual orientation) was incorrect because the differentiation was based on 'non-spousal' grounds, rather than on marital status, and did therefore not constitute unfair discrimination. He also rejected the respondents' alternative submission that gays and lesbians are free to marry as a 'meaningless abstraction'. The Court held that this submission ignored the constitutional injunction that gays and lesbians cannot be discriminated against on the grounds of their sexual orientation. The better view, according to the Justice, was that the discrimination in s 25(5) 'constitutes overlapping or intersecting discrimination on the grounds of sexual orientation and marital status, both being specified in s 9(3) and presumed to constitute unfair discrimination by reason of s 9(5) of the Constitution'. 6 V IMPACT OF THE DISCRIMINATION The deciding factor regarding the unfairness of discrimination was the impact of the discrimination on the complainants or members of the affected group, according to the Court. This entailed assessing 'cumulatively and objectively' various factors such as the position of the complainant in society, the nature of the provision and the purpose to be achieved, and any other related factors. In doing this, the Court recognised the ruling by the Canadian Supreme Court7 that the central purpose of its equality guarantee was the protection and promotion of human dignity. In accordance with this decision, the Court held that the discrimination denied gay and lesbian people equality and dignity which are the foundations upon which the Constitution is based. The Court also 4 5 6 7 1999 (I) SA 6 (CC). 1998 (!)SA 300 (CC). National Coalition para 40. Law v Canada (Minister of Employment and Immigration) (1999) 170 DLR (4th). 348 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM accepted that an enquiry into past disadvantage was important because it revealed the vulnerability of the group. In this regard it made reference to its decision in President of the Republic of South Africa v Hugo, 8 where it held that '[t]he more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair'. In deciding the impact of the discrimination on the affected applicants, the Court acknowledged the following: (i) That there has been a change in societal and legal concepts regarding family and what it comprises; (ii) That in countries such as Canada, Israel, the united Kingdom and the United States of America, there has been an increased understanding and sensitivity towards 'human diversity in general and to gays and lesbians in particular' .9 It therefore held that the impact of s 25(5) was to reinforce harmful and hurtful stereotypes of gays and lesbians. The Court also rejected the respondents' argument that it was of public importance to protect the traditional institution of marriage. Ackermann J stated that protecting the traditional institution of marriage as recognized by law may not be done in a way which unjustifiably limits the constitutional rights of parties in a permanent same-sex life partnership. Furthermore, there was no rational connection between the exclusion of same-sex life partners from the benefits of s 25(5) and the government's interest to be achieved. This was supported by the decision in M v H 10 where the Canadian Supreme Court held that the concern for the protection of same-sex partnerships in no way implies a disparagement of the traditional institution of marriage. The Constitutional Court therefore held that s 25(5) constituted unfair discrimination or a serious limitation of the equality right and the right to dignity enjoyed by gays and lesbians. VI JUSTIFICATION IN TERMS OF SECTION 36 OF THE 1996 CONSTITUTION In terms of the s 36(1) justification analysis, the Court applied the test in S v Makwanyane 11 (as adapted for the 1996 Constitution in the Sodomy case 12), which includes proportionality in relation to the balancing of interests. On one side, the Court held the effect of omitting same-sex life partnerships from s 25(5) limits the rights to equality and dignity 'at a deep and serious level'. The Court further held that there is no interest on the other side that entered into the balancing process. Consequently, 8 9 10 II 12 1997 (4) SA I (CC). National Coalition para 48. (1999) 171 DLR (4th). 1995 (3) SA 391 (CC). Note 4 above. (2000) 16 SAJHR 349 there was no justification for the limitation and that s 25(5) is inconsistent with the Constitution and invalid. VII BROADER APPLICATION OF THE DECISION Ackermann J emphasised that the position of unmarried partners in permanent heterosexual relationships and their omission from s 25(5) was never at issue and that it could therefore not express a view on it. The matter was therefore left open. He further held that the Court did not in this case reach the question of whether, or to what extent, the law ought to give formal institutional recognition to same-sex partnerships, and this issue was also left open. VIII THE APPROPRIATE REMEDY In reaching its decision the High Court opted for a 'declaration of invalidity to provide that the section is inconsistent with the Constitution to the extent that it confers an exclusive benefit on spouses and hence discriminates on the grounds of sexual orientation, the rest of the section could remain valid' .13 The Constitutional Court, however, held that where the invalidity of a statutory provision results from an omission, it is not possible to achieve notional severance by using words such as 'to the extent that'. The only equivalent to severance would be 'reading in'. In the present case, Ackermann J contended that there were only two options: declaring the whole of s 25(5) invalid or reading in provisions to cure the invalidity. In declaring a section invalid, the Court recognised that regard should be had to two issues: the first is to provide appropriate relief and the second is the separation of powers, which involves 'restraint by the courts in not trespassing onto ... the legislative field' . 14 As a result, the Court concluded that reading in was the appropriate form of relief under s 38 of the Constitution. The Court finally had to decide whether reading would be 'just and equitable' and an appropriate remedy in this case. In reaching its decision the Court had to have regard to a number of factors including the fact that: (i) A court should bear in mind that it will not be appropriate to read words in, unless it can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution; (ii) Striking down the section will deprive spouses of the benefits conferred by the section; (iii) An appropriate remedy must vindicate the rights of permanent same-sex life partners to establish a family unit that receives the same protection as marriages recognised by the law; 13 Note 2 above. See National Coalition para 62. 14 National Coalition para 66. 350 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM (iv) That the court should only provide the reading in remedy for samesex life partners involved in a permanent relationship, because it was only in relation to them that the court was called upon to decide. IX THE ORDER The Court held that permanent same-sex partners are entitled to an effective remedy for the breach of their rights to equality and dignity. In this regard the remedy had to take effect immediately for it to be effective. Furthermore, in order to avoid uncertainty, the order should be limited and have no retrospective effect. The Court held that such an order is 'just and equitable' because it will cause no prejudice to same-sex partners who want to seek relief under the Act immediately after the order has been granted. SHIREEN MOTARA Gender and Labour Law Consultant, Johannesburg CIVILISATION AND ITS MALCONTENTS PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA V SOUTH AFRICAN RUGBY FOOTBALL UNION It is always possible to bind a considerable number of people in love, so long as there are other people left over to receive the manifestations of their aggressiveness. Sigmund Freud Civilization and its Discontents (I929) (trans Joan Riviere, 1930) I INTRODUCTION: THE NARCISSISM OF MINOR DIFFERENCE Spike Lee's film - Do The Right Thing- features a long set of jump-cuts between several of the main characters, each uttering a quick rap of bigoted expletive aimed at one of the numerous ethnic, racial and religious groups represented in the movie. In the searing heat of a New York summer, an African-American lays into his Italian-American co-worker: 'Dago, Wop, Guinea, garlic-breath, pizza-slinging, spaghettibending, Vic Damone, Perry Cuomo, Luciano Pavarotti, solo mio, non-singing, mother-fucker.' His Italian-American co-worker gives as good as he gets: 'You gold teeth, cheap gold chain-wearing, fried chickenbiscuit-eating, monkey, ape, baboon, big thigh, fast-running, high jumping, 360-degree basketball-dunking, titsoon, spade, take-yourpizza-back-to-Africa molanyone.' A Latino-American jumps in and on Korean-Americans: 'You slanty-eyed, me-no-speaky English, own every fruit and vegetable stand in New York, bullshit Reverend Sun Yung ·(2000) 16 SAJHR 351 Moon, Summer Olympic '88, Korean kick-boxing, son-of-a-bitch.' A white cop gets in his vituperative two cents on Latinos: 'You Goya beaneating, 15-in-a-car, 30-in-an-apartment, pointy shoes, red wearing, menudo-eatin', Puerto Rican, cock-sucker.' A Korean grocer rips into his Jewish fellow New Yorkers: 'It's cheap, it's good, I got good price for you, Mayor Koch, "How'm I doing", chocolate egg-creme drinking, bagels and lox, B'nai Brith, Jew-asshole.' This reflexive and aggressive privileging of one community's claims against those of another might be understood in terms of what Freud has described as 'the narcissism of minor difference' . 1 When the world creates a sense of anxiety within us- as a dangerous and uncertain place is apt to do - we often respond by searching aggressively for a specific, external cause for that anxiety. More often than not, the cause we divine is another person, a witch, or another people, say, the Gypsies, who live within relatively close proximity. After blame comes the instinctual upshot of our aggression: building walled ghettos, exile, burning at the stake, lining them up to be shot. Given that South Africans of all hues and creeds have so often borne the brunt of this narcissism of minor difference, it is somewhat ironic, if all too human, that South Africans, today, as members of different communities, have been so quick to find that the fault with the world lies not with its inherently capricious ways, but with a neighbour bent on destroying them or putting their livelihood at risk. This case comment opens with these two twentieth-century views of communal relations- Freud's and Lee's- because I have a deepening concern about South African politics and an abiding respect for the work of its Constitutional Court. First, the architects of apartheid must be given their due for turning the policy of 'apartness' into one of the best case histories of 'narcissism of minor difference'. Their legacy, however, has been to leave a state of balkanized communities, each tight and united, but without the requisite contact with and trust of other communities necessary to transform the new South Africa into a vibrant constitutional democracy. Respect - one citizen for another - must be I This phrase can first be found in Freud's Group Psychology and the Analysis of the Ego (1921) (trans James Strachey, 1940): In the undisguised antipathies and aversion which people feel towards strangers ... we may recognize the expression of self-love- of narcissism. This self-love works for the preservation of the individual. and behaves as though the occurrence of any divergence from his own particular lines of development involved a criticism of them and a demand for their alteration. The analysis and characterization of group aggression itself dates back to Freud's The Taboo of Virginity (trans 1918): Of two neighboring towns each is the other's most jealous rival; every little canton looks down upon the others with contempt. Closely related races keep one another at arm's length; the South German cannot endure the North German, the Englishman casts every kind of aspersion on the Scot, the Spaniard despises the Portuguese. We are no longer astonished that greater differences should lead to an almost insuperable repugnance, such as the Gallic feel for the German, the Aryan for the Semite and the white races for the colored. 352 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM paid. Second, I wonder how an institution - the Constitutional Court charged with the responsibility of modelling public discourse in a new polity is to operate in an atmosphere almost wholly averse to constructive, civilised conversation. The answer is, I believe, on display in the Court's judgment on the recusal application in President of the Republic of South Africa v South African Rugby Football Union (SARFU). 2 Part II of this comment sets out SARFU's most salient facts, allegations and conclusions: it suggests how the decision reflects both a dramatic break with the past and a model for future adjudication. Part III describes South Africa's law of contempt up to and through SARFU: it suggests how the decision should alter an important area of the law in a society not known for privileging open and candid discourse. Part IV looks at SARFU as an example of how the Constitutional Court has taken on the project of teaching South Africa's citizens how to engage one another in reasoned, reflective and principled discourse. II THE FACTS AND THE JUDGMENT: NAMES WILL NEVER HURT ME The case came to the Constitutional Court by way of the Transvaal High Court. 3 In April 1998, the latter Court set aside the appointment of a presidential commission of inquiry into the affairs of the South African Rugby Football Union. The President, the Minister of Sport and Tourism and the Director-General of the Department of Sport and Recreation appealed that decision. The Constitutional Court agreed to hear the appeal. Three court days before the appeal was due to be heard, Dr Louis Luyt, a former president of SARFU, filed a recusal application. Although his allegations implicated each of the judges of the Court, Dr Luyt directed the application at only five judges, stating that he 'left it to the conscience' of the others to decide what to do. Dr Luyt did not allege that any of the judges were actually biased. Instead his application was based on what he described as a reasonable apprehension that Chaskalson P, Langa DP and Kriegler, Sachs and Yacoob JJ would be biased in favour of President Mandela and the parties and against him. In short, the allegation of bias boiled down to several claims: (1) that the Court decided it was the appropriate venue for appeal; (2) that the Justices had been appointed by the President and would therefore be beholden to him; (3) that their political association with the ANC prior to their appointment would cloud their judgment; (4) that Chaskalson P and President Mandela shared a close and long-standing professional, political and personal relationship - which included Mandela's appearance at the wedding of Justice Chaskalson's son - which rendered Chaskalson P unfit to preside over the case. 2 1999 (4) SA 147 (CC). 3 SARFU v President of the Republic of the RSA 1998 (10) BCLR 1256 (T). (2000) 16 SAJHR 353 The application was unanimously dismissed. What is remarkable about the judgment which followed- given the venom of the application- is its muted tones. The Court noted that judicial officers are under a duty to withdraw from cases if there is a reasonable apprehension that they will not decide the case impartially: but no such grounds obtained in this case. In rejecting the notion that politically suspect relationships existed between President Mandela and various members of the bench, the Court pointed out that in most democracies judicial officers engage in political activity prior to their appointment to the bench and, after appointment, have to decide cases with significant and unavoidable political implications. Moreover, the Court added that one could hardly argue that judicial officers do not have political preferences and that such views are not made manifest in their judgments. The Court did avail itself of the opportunity to make at least one barbed reply to the failed application. Dr Luyt had alleged that because of the public criticism of De Villiers J's decision in the Transvaal High Court, the judges of the Constitutional Court would be afraid to act impartially. In dispensing with this line of argument, the Court deplored the tendency of those who disagreed with the decisions of the South African courts to impugn the integrity of judicial officers rather than engage the reasons for their judgments. While fully conceding that the decisions of the South African courts were not immune from criticism, the Court firmly insisted that political discontent or dissatisfaction with the outcome of a case can be no justification for recklessly attacking the integrity of judicial officers. This justification for the rejection of the recusal application is noteworthy for three reasons. First, the judgment emphasises that the correct way to engage judicial pronouncements is in terms of the reasons offered for those pronouncements. Second, the Court acknowledges that judges are now drawn from all sectors of society and that we should not expect that they will leave their backgrounds or political philosophies behind once they take their place on the bench: an admission that judges are, in the end, political actors. Finally, the judgment is noteworthy for what it does not do. Though the Court was empowered by statute to do so, 4 4 The Constitutional Court has been granted, by statute, the power to deal with contempt. Section 9,of the Constitutional Court Complementary Act 13 of 1995 provides: (I) Any person who(a) during the sitting of the Court, wilfully insults any member of the Court or any officer of the Court present at the sitting, or who wilfully hinders or obstructs any member of the Court or any officer thereof in the exercise of his or her powers or the performance of his or her duties; (b) wilfully interrupts the proceedings of the Court or otherwise misbehaves himself or herself in the place where the sitting of the Court is held; or (c) does anything calculated improperly to influence the Court in respect of any matter being or to be considered by the Court, may by order of the Court, be removed and detained in custody until the rising of the Court. (2) Removal and detention in terms of sub-section (I) shall not preclude the prosecution in a court of law of the person concerned on a charge of contempt of court. 354 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM and though it possessed a long line of authority for such action, the Court chose not to hold Dr Luyt in contempt in facie curiae for words or conduct perceived as violative of the court's dignity, repute or authority or otherwise having the tendency to interfere with the administration of justice, nor did it avail itself of the summary procedures available for such an offence. Instead, just as it admonished Dr Luyt and all other critics of the Court, it chose reasons and arguments as the appropriate response to intemperate remarks. It both established how the Court would break from the manner in which judicial authority was wielded in the past and demonstrated how public discourse ought now to be modelled in a new South Africa still fraught with anxiety and aggression. III CONTEMPT OF COURT: INTIMATIONS OF CHANGE IN THE WAY COURTS MODEL PUBLIC DISCOURSE Though the decision does not announce itself as such, the SARFU judgment provides some indication of how the Court might choose to rule upon certain kinds of contempt cases that come before it in the future. Before we chart the Court's prospective new course, it would seem worthwhile to document briefly the South African courts' doctrines in this area of law. The primary justification for the crime of contempt of court has been that courts of law must be able to come to a proper decision without improper inside or outside influences, and that justice can be upheld only if the courts enjoy the respect and confidence of the public. Courts consider contempt to have been committed when one unlawfully and intentionally violates the dignity, repute or authority of a judicial officer in his or her official capacity or of a judicial body, or when one unlawfully and intentionally interferes with the administration of justice in a matter pending before a court. 5 5 Following English common law classifications, the South African courts have divided contempt of court into civil contempt and criminal contempt. This terminology is misleading because both 'civil' and 'criminal' criminal contempt may, in appropriate circumstances, constitute a criminal offence. However, the distinction still remains important because in the case of a civil contempt, the court's sanctions are usually invoked at the instance of a private party and are primarily designed to secure compliance with the court's order. Criminal contempt may be said to fall into three categories: (I) Contempt in facie curiae; (2) contempt ex facie curiae with reference to pending judicial proceedings; and (3) contempt ex facie curiae without reference to pending proceedings. (i) Contempt in facie curiae: Contempt in facie curiae is generally understood to consist of insults, interruptions and other misdemeanors by either words or conduct. The words or conduct have to be perceived as violative of the court's dignity, repute or authority or otherwise having the tendency to interfere with the administration of justice. Contempt in facie curiae differs from the other two species of criminal contempt in that the court can summarily punish the offender - provided the offender is informed of the conduct alleged to constitute the offence. The alleged wrongdoer must also be given an opportunity to show cause why he should not be punished. The power to punish summarily for contempt is deemed to be essential to uphold the dignity and authority of the court. Less drastic measures would appear not to suffice. (2000) 16 SAJHR 355 (a) Contempt of Court under apartheid It is possible to read some of the reported decisions of the former Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal) and leave with the impression that there has been a genuine effort to use the doctrine of contempt of court primarily for the protection of the administration of justice. But a comprehensive reading of the case law is apt to leave one with the sense that a citation for contempt of court was designed to restrict the expression of the party charged. Barend Van Niekerk, renowned for his own problems with contempt citations, has argued that the problem with most contempt of court doctrines is that they privilege the interests of the judiciary and other legal institutions over the interests of free speech, fair trials, individual rights and unfettered public discourse. The better part of South Africa's contempt of court cases would appear to support Van Niekerk's assertion. In S v Pitje, 6 the accused was an articled clerk with the law firm of Nelson Mandela and Oliver Tambo. As a protest against the courtsanctioned discrimination between black and white lawyers, Pitje refused to sit at a table set aside for black lawyers. Pitje informed the court that justice is colour-blind. Furthermore, in a sworn statement before the court, Pitje claimed that the discriminatory treatment of African jurists offended the most basic principles of fairness, decency and justice. For stating the obvious, Pitje was convicted of contempt. Pitje appealed. The Appellate Division confirmed his conviction on the grounds that the sworn statement could only be interpreted as an insult to the magistrate. No room was permitted for the expression of dissatisfaction with the policies of separate development. In S v Van Niekerk, 7 the accused was cited and sanctioned for contempt for having criticised s 6 of the Terrorism Act 83 of 1967, for having called upon the judges in the court a quo to refuse to accept the creditworthiness of evidence obtained from detainees under the (ii) Contempt ex facie curiae- pending proceedings: Contempt ex facie curiae often refers to cases in which a publication allegedly prejudices a matter that is sub judice. The test for such potentially prejudicial publications is that the matter must be pending and the publication must have the 'tendency to prejudice' the outcome of the case. To satisfy this test, however, it does not matter that the publication is unlikely to influence the judge who is to hear the case. (iii) Contempt ex facie curiae- scandalising the court: Contempt ex facie curiae may refer to scandalising the court, where the contempt is committed outside the court, though not necessarily with reference to any pending proceedings. It is said to be committed where the contemnor scurrilously abuses a judge or the judiciary as a whole or where he or she imputes bias, partiality or improper motives to a judge or the courts in their administration of justice. This form of contempt does not depend on the nature of the language used and liability does not depend on whether the scandalous matter is available to the whole world. It will suffice for contempt if the scandalous matter is made available to only one person - even if that person is the judicial officer involved. 6 1960 (4) SA 709 (A). 7 1972 (3) SA 711 (A). 356 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM provisions of this Act, and for having argued that enforcement of the Act by members of the bench ran contrary to what any truly ethical advocate would call justice. On appeal, the Appellate Division determined that while the accused's speech did not constitute that species of contempt known as 'scandalising the court', it still tended to interfere with the court's proceedings. The Appellate Division dismissed the appeal and convicted the accused of attempting to defeat or obstruct the course of justice. According to the Appellate Division, the proper test for contempt was 'whether the statement or document in issue tends to prejudice or interfere with the administration of justice in a pending proceeding'. 8 Because this test still depends on the judge's assessment as to whether the accused's critical remarks will prejudice or interfere with the administration of justice, it is difficult to declare S v Van Niekerk a victory for freedom of expression. 9 South African judges have been repeatedly urged to demonstrate some inclination to diminish the rather reflexive tendency to protect their own good names and to permit rational, if hotly contested, debate to enter the courthouse doors. A perfect opportunity for such a demonstration arose in S v Harber. 1 Counsel's compelling arguments in Harber showed just ° 8 Ibid 724H. 9 Whether the test invoked is 'scandalising the court' or 'interfering with the administration of justice', the contempt doctrine has been used by judges to suppress all forms of criticism. In S v Tobias 1966 (I) SA 565 (N), the accused referred to the magistrate as a 'bastard'. For this untoward utterance, Tobias was convicted of contempt. InS v Zungo 1966 (I) SA 268 (N), the accused was convicted of contempt of court for protesting that his late arrival to court was a function of his impecuniousness and a 26 mile walk from home. InS v Mohale 1974 (I) SA 110 (T), the magistrate convicted the accused for continuing to claim, after his conviction but before sentence, that he was innocent. In S v Shapiro 1987 (2) SA 482 (B), an advocate was convicted for contempt of court because he had said that he regarded as invalid an executive order preventing one of his witnesses in a case from entering the country and testifying. The court set aside the conviction. However, this reversal did not raise any significant hopes for a future change in course. While setting aside the particular conviction, the court in S v Shapiro left the doctrine and the procedures intact: a court retained the right to try the person cited for contempt in a summary manner without affording the accused a proper opportunity to defend herself or himself. 10 1988 (3) SA 396 (A) 402G-I. In this case, the Appellate Division was given another chance to right the contempt of court doctrine. In particular, the court was asked to choose between the existing 'tendency test' and a stricter, reform-minded 'real risk test'. The tendency test holds that those who criticise the judiciary may be convicted of contempt even when their actions pose no real risk to the administration of justice. The real risk test, on the other hand, holds that only those utterances that pose a tangible threat to the administration of justice may be cited. Appellant's counsel argued that the foundations of the 'tendency test' were insubstantial at best and were 'out of keeping with contemporary notions of Anglo-American jurisprudence' (398-404). Counsel then canvassed both the insubstantial foundations of the test set out in Van Niekerk (note 7 above) and the significant developments in the English and the American doctrines. While traversing English law, Counsel noted that, 'at the very least, the ratio of [the House of Lords in A-G v Times Newspapers Ltd [1973] 3 All ER 54 (HL)] demands that for contempt of court there must be a real risk of prejudice'. Counsel also noted that after several court battles over the parameters of contempt, the English Parliament codified this approach in the Contempt of Court Act, 1981: 'The test of contempt is whether the publication complained of creates a risk that the course of justice will be seriously impeded or prejudiced.' The reformist, if tepid, English prose enabled Counsel to move on with approval to the more robust positions laid out by the US Supreme Court some sixty years ago (2000) 16 SAJHR 357 how far South Africa's jurisprudence was 'out of keeping with contemporary notions of Anglo-American jurisprudence'. The argument fell on deaf ears. No reformation followed. (b) Contempt of Court after Apartheid: Recent Decisions Calling for a change in the law and producing a change in the legal culture are two different things. Despite countless arguments made by counsel and commentator alike, the current law of contempt still enables judges to shield themselves from unwanted criticism. This over-protectiveness is apparent in such cases as Argus Printing & Publishing Co Ltd v Esse/en's Estate. 11 In Esse/en, the Appellate Division defined contempt of court as having been committed 'by the publication either in writing or verbally of allegations calculated to bring Judges, magistrates or the administration of justice through the courts generally, into contempt, or unjustly to cast suspicion upon the administration of justice'. 12 Thus, pace Harber, it would seem that the current common law of contempt continues to criminalize expressive conduct which imputes corrupt or improper or dishonest motives or conduct to a judge in the discharge of his or her official duties; or which reflects on the administration of justice in an improper or scandalous manner; or which lowers the authority of the court or unfairly or improperly criticizes the court in relation to terminated proceedings or generally; or which scandalizes the court by imputing bias, partiality or improper motives to a judge or the courts; or which is calculated to bring into contempt a judicial officer in his or her judicial capacityY Moreover, recent cases, heard under both the interim Constitution 14 and the 1996 Constitution/ 5 confirm the courts' resistance to change. InS v Lavhengwa, 16 the court faced a constitutional challenge to the summary II 12 13 14 15 16 in Bridges v California 314 US 252 (1941). In Bridges, the Supreme Court held (263) that there must be a 'clear and present danger' before speech could be curtailed and that the 'substantial evil must be extremely serious and the degree of imminence extremely high before utterances can be punished'. On the basis of the foregoing comparisons, the Appellant's Counsel found the 'the tendency test' articulate in Van Niekerk to be 'out of keeping with modem developments' and held that 'it should be rejected in favour of a test more in keeping with modern developments'. (Harber, 398.) Indeed, Counsel called for not only a change in the substance of the contempt doctrine, but for extreme caution in the procedures employed. Counsel vociferously argued that summary procedures for contempt were inherently dangerous and should only be used where the contempt was clear beyond a reasonable doubt. If such a high standard could not be met, the better route, said Counsel, 'would seem to be for the offender to be charged in the ordinary way by indictment' (404). But the past often exerts a firm grip on the present. Having had the basis for radical change laid out before it, the Appellate Division then decided that with respect to the matter before the Court there was no palpable difference between 'the tendency test' and 'the real risk test'. Under neither test could the articles in question be found to constitute contempt. Nothing changed. 1994 (2) SA I (A). Ibid 29D-E. G Marcus & D Spitz 'Freedom of Expression' in M Chaskalson et al (eds) Constitutional Law of South Africa (1996, 5 rev 1999) 20-38. Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution). Constitution of the Republic of South Africa Act I 08 of 1996 (1996 Constitution). 1996 (2) SACR 453 (W). 358 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM procedures contemplated ins 108(1) of the Magistrates' Court Act 32 of 1944 in respect of contempt committed in facie curiae. The court held that the procedure was not unconstitutional. In particular, the court rejected the proposition that the summary procedures violated the accused's rights to (a) be informed with sufficient particularity of the charge being laid; (b) be presumed innocent; (c) remain silent; (d) choose and be represented by counsel; and (e) have a legal practitioner assigned by the State if a substantial injustice would otherwise result. With regard to constitutional challenges to contempt, the decision by the court in Uncedo Taxi Service v Maninjwa 17 largely and explicitly tracked the reasoning and conclusions in Lavhengwa. In short, after hearing the various challenges brought under both s 12(1)(b) and s 35(3) of the 1996 Constitution, Pickering J concluded that 'the fact that contempt proceedings are brought summarily by way of notice motion does not mean that they cannot be conducted fairly in consonance with the provisions of the ... Constitution Act' . 18 However, the court did find at least one aspect of the summary procedure invoked by the Magistrates' Courts to be violative of the accused's constitutional rights. According to Pickering J, to the extent that the summary procedure places an onus upon the offender and requires proof of guilt only upon a balance of probabilities, it is in conflict with the [1996] Constitution and such conflict is neither reasonable nor justifiable in terms of s 36. 19 (c) Intimations of Change in Modelling Public Discourse from the Constitutional Court In keeping with its minimalist practice, the Constitutional Court has twice engaged the subject matter of contempt of court in a rather oblique manner. During the litigation of Executive Council, Western Cape Legislature v President of the Republic of South Africa, 20 one of the applicants, Mr Pieter Marais, allegedly asserted that the Western Cape government had an excellent chance of winning the case so long as the Constitutional Court's judgment was not politically motivated. After having this pronouncement brought to the Court's attention, Chaskalson P first observed that it went without saying that the Court had not been influenced in any way by Mr Marais's statement to the press. He then went on to state that the report, if true, 17 1998 (3) SA 417 (ECD). 18 Ibid 429C-D. 19 Ibid 428A-B. Though it represents but a small crack in the edifice of the contempt of court authorities, Uneeda is not insignificant. It recognises that contempt proceedings can deprive a person of her liberty- and that such a deprivation is not to be taken lightly and certainly not to be taken on the basis of a balance of probabilities. With so much at stake, Pickering J reasoned, the state is obliged to satisfy the most stringent test and demonstrate the guilt of the accused beyond a reasonable doubt. 20 1995 (4) SA 877 (CC). (2000) 16 SAJHR 359 undermines not only this court but constitutionalism itself, of which this court is a guardian. Having regard to the high political office held by the third applicant, the consequences of a statement impugning the integrity of this court might have been particularly harmful. All citizens are free to attend court, to listen to proceedings, to comment on them and on the judgments given and to criticize such judgments, even vigorously, where it is appropriate to do so, but it is irresponsible to make unfounded statements which impugn the integrity of the court. I leave the matter there.Z 1 Gilbert Marcus and Derek Spitz have suggested that the Court's handling of this issue could be viewed as unsatisfactory in two important respects: (1) the Court appears to invoke a summary procedure and imposes what amounts to a conviction without sanction; (2) the Court adopts a rather uncritical attitude towards existing common-law contempt of court authorities. Given that the Court has recently been granted the power to deal directly with alleged contempt of its proceedings, the two authors have expressed genuine concern regarding the potential for the speech of would-be critics of the court to be 'chilled into an uneasy silence out of a fear of contempt proceedings'. 22 As this comment has strongly suggested, the Court's decision in SARFU should allay such fears. In this decision, the Constitutional Court demonstrated a dramatically different demeanour in response to a far more direct attack on its integrity. The implication of personal bias, as well as political cronyism, lay at the heart of Dr Luyt's recusal application. Though the Court was clearly disturbed by the frontal attack on its integrity, its response was quite reserved. It surveyed both South African and foreign jurisprudence on recusal. Having done both, it denied the request and set about preparing for an appeal on the merits. During the course of its patient survey of both the charges and the law, the Court noted that its reputation, however important, could not be used as a basis upon which to silence its critics. The Court wrote: At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has [sic] an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable it is counsel's duty to advance the grounds without fear. On the part of the Judge whose recusal is sought there should be a full appreciation of the admonition that she or he should 'not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront. 23 [footnotes omitted] What is truly remarkable in this case, where contempt for the Court and its members had been amply demonstrated, is that while the Court deplored 'the tendency for decisions of our courts . . . to be attacked by impugning the integrity of judicial officers rather than by examining the reasons for their judgments', 24 it undertook as its chief responsibility the development of the law on recusal. Put slightly 21 22 23 24 Ibid para 122. Marcus & Spitz (note 13 above) 20-40. SARFU (note I above) para 10. Ibid para. 360 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM differently, instead of using the recusal application as an opportunity to chill future expression that might be seen as 'recklessly attacking the integrity of judicial officers', it actually used the moment to reinforce the legitimacy of its own role as a forum for politically charged disputes in South Africa's nascent constitutional democracy. Its decision in SARFU is a model for how a public institution ought to respond to issues that fall along South Africa's many fault lines. This decision is also a model for how South African courts should engage the occasional reckless accusations made by litigants. Most importantly, in a democracy struggling to throw off the shackles of authoritarianism, the Court's decision in SARFU should be read as a model for how all citizens ought to engage in public discourse. With strong authoritative words. With reasons. Not with a big stick. (d) Implications of SARFU for Current Contempt of Court Authorities The Constitutional Court's decision in SARFU would appear to suggest that for South African citizens to lay legitimate claim to freedom of expression or the right to a fair trial, judges cannot be allowed to claim that each and every criticism of their official actions and judgments amounts to a cognisable and punishable offence or that any given affront in court warrants summary sanction. ( i) Freedom of Expression At the very core of freedom of expression lies the right to articulate one's political beliefs, however unpopular, in the public square. Part and parcel of this freedom is the right to contest abuses of state power wherever citizens believe such abuses to have occurred. While there remains amongst many jurists in South Africa a fairly deep-seated belief that judges are not political in ways that would make their positions and actions subject to the hurly-burly of public debate, the facts do not support this perception. The Constitutional Court has handed down an array of decisions - from striking down the death penalty, to upholding provincial legislation regarding traditional leaders, to reading in protections for individuals in homosexual partnerships that are undeniably political and have attracted political fire. For the Constitutional Court, or any South African court, to suppress expression which asserts political bias or a lack of ideological rectitude on the part of members of the court is censorship, plain and simple. To go further and punish such expression for impairing the dignity of the court is, as Marcus and Spitz have argued, to resuscitate laws for sedition that should have died with Apartheid. Of course, the law of contempt attempts to regulate a broad range of actions - from insults, interruptions or disorderly conduct within the courtroom, to potentially prejudicial publications regarding pending proceedings, to the imputation of such improper bias and motives of judicial officers that the administration of justice itself is impaired. Not (2000) 16 SAJHR 361 all such activities should be found to fall within the protective sphere of the freedom of expression. With respect to contempt in facie curiae, it is not at all apparent that any disorderly conduct that occurs within the courtroom is entitled to such protection. An especially strong case would have to be made that the conduct itself constitutes the kind of expression that serves the values that animate the right. For example, simply tossing chairs, cursing at the judge, refusing to follow basic court etiquette or struggling with the bailiffs are unlikely to advance our search for truth, press freedom or political exchange. However, a case could be made that a defendant who chooses to gag himself during proceedings is engaged in the kind of political expression that warrants at least prima facie protection. The gag could well be understood as a non-obtrusive critique of a system in which the defendant is prevented from ever making herself truly heard. The question, then, would be whether this 'statement' is justified under the limitation clause. To the extent that the trial itself is not 'affected' by this symbolic action, and no other state or private interest of constitutional import is found to be impaired, then we might wish to recognise that a contempt citation in such a circumstance is unwarranted. Likewise, with respect to contempt in facie curiae regarding statements which are allegedly violative of the dignity of the court and its members or bring the administration of justice into disrepute, the Constitutional Court would appear inclined to be rather generous with regard to the kind of language that would both receive prima facie protection and survive limitation analysis. The Court's reasons - as manifest in SARFU - follow. First, we should hesitate before we commit ourselves to the proposition that that the sensitivity of judges to public criticism rises to the level of a constitutionally protected concern. Second, even if we were able to find constitutionally defensible ends in the current law of contempt and divine a rational relationship between the means employed and the objective to be achieved by the current law of contempt, we would be hard pressed to defend the proposition that the current laws of contempt with regard to impairing the administration of justice reflect the least restrictive means possible of achieving those ends deemed constitutionally justifiable. It is one thing to restrict speech that actually impairs the operation of the court. It is quite another to suppress speech that takes the court or its members to task for their political beliefs- real or imagined. This latter restriction cannot be justified in an open and democratic society based upon freedom, equality and dignity. Our limitation analysis would seem to suggest that an alternative, less restrictive scheme exists for protecting those policies that underlie permissible laws of contempt for scandalising the court. ( ii) Fair Trials The notion that the law of contempt can always be squared with the right to a fair trial must also be viewed with heightened suspicion. Unlike 362 FOCUS: THE CONSTITUTIONAL COURT'S 1999 TERM freedom of expression, however, the right to a fair trial would only appear to be engaged with respect to contempt in facie curiae. For only with respect to contempt in facie curiae are the courts permitted to punish summarily the alleged contemnor. The right to a fair trial includes, among other things, the right: (l) to be informed of the charge with sufficient details to answer it; (2) to have adequate time and facilities to prepare a defence; (3) to a public trial in an ordinary court; (4) to be presumed innocent; and (5) to adduce and challenge evidence. The summary procedures employed in many contempt in facie curiae proceedings would appear to violate at least one if not all five of these constitutional rights. That leaves open the question of whether prima facie infringements of the right to a fair trial - when they do occur via a summary contempt citation - can be justified. While there may be a number of instances in which summary sanctions trump various components of the right to a fair trial, in the main it would appear that the Constitutional Court, as evidenced by SARFU, would favour an alternative scheme less restrictive of the defendant's rights. The Court could ask the Director of Public Prosecution's office to investigate whether a charge of contempt is warranted. After investigation, in the normal course of business, the Director of Public Prosecutions could decide whether or not to bring charges. The Constitutional Court could then feel confident that the defendant would be likely to receive the benefit of all the rights denied her under summary proceedings and punishment for contempt in facie curiae. IV CONCLUSION: A FORUM OF PRINCIPLE AND A MODEL FOR PUBLIC DISCOURSE The fateful question for the human species seems to me to be whether and to what extent their cultural development will succeed in mastering the disturbance of their communal life by the human instinct of aggression and self-destruction .... Men have gained control over the forces of nature to such an extent that with their help they would have no difficulty exterminating one another to the last man. They know this, and hence comes a large part of their current unrest, their unhappiness and their mood of anxiety. Sigmund Freud Civilization and its Discontents (1929) (trans Joan Riviere, 1930) Written just before Hitler's rise to power, and well over a decade and a half before Hiroshima and Nagasaki demonstrated just how quickly we could race to the last man, Freud's dire warnings about the dangers associated with the narcissism of minor difference could have appeared in yesterday's opinion and editorial pages. Nothing in the SARFU recusal judgment provides any assurance that our better angels will always get the better of us. Still the judgment does provide some succour for those among us who have been concerned about the rancorous debates over race in the media and the etiology of HIVIAIDS in the general population. (2000) 16 SAJHR 363 South Africa has far too many obstacles to overcome to permit one to be overjoyed by a few careful words chosen by its highest court. However, it is impossible to imagine South Africa overcoming the legacy of Apartheid unless it politicians and citizenry learn to engage one another in a manner which enables them to cooperate in attempting to solve the problems which confront them. We should not expect such lessons from the burly-burly of majoritarian parliamentary politics. Indeed, we should expect politicians to continue to exploit the narcissism of minor difference for political gain. The Court, however, exercises a different set of institutional competencies than those discharged by the coordinate branches. Unburdened by the pressures of making good electoral promises, the Court finds itself in the fortunate position of being able to articulate principles by which we all ought to live. Unfettered by the demands of executing social policy, or playing to the rabble, the Court - Constitution in hand - is able to offer reasoned justifications for decisions which engage every issue from distributive justice to socio-economic rights, from equality to the appropriate dimensions of human sexuality, from criminal justice and the need for order to the panoply of protections which are afforded individual defendants. As any number of commentators have pointed out, we need not believe that the Court will arrive at the 'one, true answer' in order to acknowledge that its decisions will more thoroughly ventilate the myriad considerations which the cases before it raise. That, in the end, is what we should want and expect from the Court. Relatively dispassionate and disinterested engagement with complex questions which result in honest, principled responses. And that, in the end, is what we received from the Constitutional Court in SARFU. STUART WOOLMAN* Lecturer, Columbia Law School Research Fellow, University of the Witwatersrand School of Law * The author would like to thank Theunis Roux and Jonathan Klaaren for their support and editorial assistance. The author would also like to thank Steven EHmann and Penelope Andrews for permission to use material to be published in their forthcoming book, The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law. CONSTITUTIONAL COURT STATISTICS FOR THE 1999 TERM I INTRODUCTION This section provides some descriptive statistics on the work of the Constitutional Court in the past year, organised in eight tables. A ninth table looks at the expected terms of the judges of the Court. This information should supplement the more qualitative analyses presented in the other pages of this issue. The method of constructing each table is given in the text below the table. The 1999 statistics are primarily drawn from data on the website maintained by the Faculty of Law at the University of the Witwatersrand (www.law.wits.ac.za). This section covers only cases in which a full, written judgment of the Court is produced. Thus, matters disposed of without hearing - which would be important from the point of view of examining issues such as the control of the Court over its roll - are not included. The objectives and methods of this section are more fully laid out in the 1995 edition and subsequent editions of this section. 1 We present these statistics with caution and they should be read likewise. Statistics are often misleading. Furthermore, these statistics describe only a small number of cases. Finally, in this section, neither the reasoning of the judges, nor the facts presented by the cases, is examined. The data offered here should thus be taken as complementary, rather than as conclusive, and should be interpreted with a high degree of care. II SUMMARY This is the fifth year in which these statistics have been presented, and it is thus possible to begin to trace some trends that have been developing over the past few years. The 1999 term was one in which the Court spoke with a high degree of unanimity: of the nineteen cases decided in 1999, 78,9 per cent were unanimous, with a further 5,3 per cent having only concurrences, but no dissents. There was a slight increase in the number of cases showing any dissent, from 4,8 per cent in 1998, to 15,7 per cent. In 1998, 81,0 per cent of the cases were unanimous, while in 1997 the figure was 63,2 per cent, in 1996, 81,5 per cent, and in 1995, 57,1 per cent. This high degree of concurrence for 1999 is reflected in table 4, which sets out the voting alignments of the judges. The lowest figure for agreement is 81 per cent, between Goldstone J and O'Regan J. This is the I See 'Constitutional Court Statistics for the 1995 Term' (1996) 12 SAJHR 39; 'Constitutional Court Statistics for the 1996 Term' (1997) 13 SAJHR 208; 'Constitutional Court Statistics for the 1997 Term' (1998) 14 SAJHR 277; 'Constitutional Court Statistics for the 1998 Term' (1999) 15 SAJHR 256, read with (1999) 15 SAJHR 446. 364 (2000) 16 SAJHR 365 same as the 1998 term (80 per cent between Sachs J and Ackermann J), and is substantially higher than the lowest rate in 1997 (40 per cent). In 1996, the lowest concurrence was 66,7 per cent, and in 1995, 61,5 per cent. Most judges agreed with each other at least 90 per cent of the time in 1999. The number of cases decided by the Court in 1999 (19 cases) was much the same as in 1998 (21 cases), 1997 (20 cases), 1996 (27 cases) and 1995 (14 cases). There were relatively few criminal cases (26 per cent), a substantial decrease on the 1995 proportion, where 64,3 per cent of the cases were criminal. The Court ruled in favour of government in 63 per cent of the cases, substantially the same as the figure of 67 per cent recorded in 1998. This, in turn, was similar to the government success rate of 63,2 per cent in 1997, and 66,7 per cent in 1996, and substantially greater than the 35,7 per cent recorded in 1995. In 1999 there were no cases dismissed for lack of jurisdiction, a high proportion of the cases (47,4 per cent) being direct appeals from the High Courts. The average time between the date of the last hearing and the date of judgment has also continued to decrease: 1999 (58 days), 1998 (89 days), 1997 (120 days), 1996 (146 days) and in 1995 (119 days). LIST OF 1999 CASES Together with the abbreviations used in these tables, the cases decided with written judgments in 1999 are listed in chronological order based on the day the judgment was delivered. (FNB) Mphahlele v First National Bank of SA Ltd CCT 23/98; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC) (Pr) Premier, Western Cape v President of the Republic of South Africa CCT 26/98; 1999 (3) SA 657 (CC); 1999 (4) BCLR 382 (CC) (Ag) August v Electoral Commission CCT 8/99; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) (DP) Democratic Party v Minister of Home Affairs CCT 11/99; 1999 (3) SA 254 (CC); 1999 (6) BCLR 607 (CC) (NNP) New National Party of South Africa v Government of the Republic of South Africa CCT 9/99; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (SAN) South African National Defence Union v Minister of Defence CCT 27/98; 1999 (4) SA 469 (CC); 1999 (6) BCLR 615 (CC) (Dl) S v Dlamini; S v Dladla; S v Joubert; S v Schietekat CCT 21/98; CCT22/98; CCT 2/99; CCT 4/99; 1999 (4) SA 623 (CC); 1999 (7) BCLR 771 (CC) (SARI) President of the Republic of South Africa v South African Rugby Football Union CCT 16/98; 1999 (4) SA 147 (CC); 1999 (7) BCLR 725 (CC) 366 CONSTITUTIONAL COURT STATISTICS FOR THE 1999 TERM (FEI) President, Ordinary Court Martial v Freedom of Expression Institute CCT 5/99; 1999 (4) SA 682 (CC); 1999 (11) BCLR 1219 (CC) (EC) Premier of the Province of the Western Cape v The Electoral Commission CCT 19/99; 1999 (11) BCLR 1209 (CC) (SAR2) President of the Republic of South Africa v South African Rugby Football Union CCT 16/98; 2000 (1) SA 1 (CC); 1999 (10) BCLR 1059 (CC) (ECW) Executive Council, Western Cape v Minister of Provincial Affairs and Constitutional Development; Executive Council, KwaZulu-Natal v President of the Republic of South Africa CCT 15/99; CCT 18/99; 2000 (l) SA 661 (CC); 1999 (12) BCLR 1360 (CC) (CMC) Cape Metropolitan Council v Minister of Provincial Affairs and Constitutional Development CCT 34/99; 2000 (1) SA 727 (CC); 1999 (12) BCLR 1353 (CC) (LB) Ex parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill CCT 12/99; 2000 (1) SA 732 (CC); 2000 (1) BCLR 1 (CC) (Le) Lesapo v North West Agricultural Bank CCT 23/99; 2000 (1) SA 409 (CC); 1999 (12) BCLR 1420 (CC) (Tw) S v Twala (South African Human Rights Commission Intervening) CCT 27/99; 2000 (1) SA 879 (CC); 2000 (l) BCLR 106 (CC) (NC) National Coalition for Gay and Lesbian Equality v Minister of Home Affairs CCT 10/99; 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (Ba) S v Baloyi CCT 29/99; 2000 (l) BCLR 86 (CC) (Ma) S v Manyonyo CCT 36/99; 1999 (12) BCLR 1438 (CC) TABLE 1: VOTING PATTERNS IN CASES DECIDED -1999 Case FNB Pr Ag DP NNP SAN Dl SAR1 FEI Ch c L La c c c c c c c c c c c ct ct c L L Ac c c c c c c c ct c Go L c c Kr c c - L - c c c - ct ct c c c L Judge Md Mo c c c c c c c c c c c c c c ct ct c c Ng OR - c c c - - - D D L c ct c Ya c c c c L c c ct c Sa c c Ca - - L - c c c - c ct c - - 367 (2000) 16 SAJHR TABLE 1: VOTING PATIERNS IN CASES DECIDED -1999 (continued) Judge Case Ch La Ac Go Kr Md Mo Ng OR Ya Sa EC SAR2 ECW CMC LB Le c ct c c c c c c c L c ct c L c c c c c c c ct c c c c c L c c c ct c c c c - c ct - c ct - L ct d c c L c c c c c ct c ct c c c c c c L c Tw NC Ba Ma - c - c - - c c c c c c c c L c c c c c c c ct - D c c c c L c c c c c c c Ca - d c L c c c c 'L' indicates the leading judgment, containing the decision of the Court on the principal issue. The leading judgment will often but not always contain the order of the Court. Where several issues in different judgments are of significance, two or more judgments may be termed leading. Reasonable minds may well differ on this identification. 'C' indicates a separate concurrence with reasons with the order of the Court. 'c' indicates a concurring vote without reasons. 'ct' indicates a concurring vote in a unanimous Court judgment not attributed to any judge. 'D' indicates a separate dissent with reasons with the order of the Court. A vote to dispose of the case in any manner other than that adopted by the Court in its order is taken as a dissent. Thus, judgments expressing both concurrence and dissent are classified as dissents. 'd' indicates a dissenting vote without reasons. '-' indicates that the judge did not participate in deciding the case. In the NNP case, there are two leading judgments written by Langa DP and Yacoob J. O'Regan J, in her dissenting judgment, concurred with Langa DP. but dissented from the judgment of Yacoob J. The two SARFU judgments (SAR1 and SAR2) do not easily fit into these tables. Both judgments were unanimous and no author was identified. For purposes of these tables, each of the participating judges is given a 'c'. The judges covered in this table are: Chaskalson P (Ch), Langa DP (La), Ackermann J (Ac), Goldstone J (Go), Kriegler J (Kr), Madala J (Md), Mokgoro J (Mo), Ngcobo J (Ng), O'Regan J (OR), Sachs J (Sa), Yacoob J (Ya) and Cameron AJ (Ca). All judges sit in all matters before the Constitutional Court and are only absent for reasons of illness, long leave or because they have recused themselves. TABLE 2: ACTIONS OF INDIVIDUAL JUDGES- 1999 L vote Ch La Ac Go Kr Md Mo Ng OR Sa Ya Ca 2 3 1 2 1 2 1 1 2 2 1 Cvote c vote - 17 16 18 15 6 19 16 7 14 16 15 5 1 - - D vote d vote Total - - 19 19 19 17 7 19 19 8 18 19 17 7 - - 3 - - This table is calculated on the same basis as Table 1. - 1 - 1 368 CONSTITUTIONAL COURT STATISTICS FOR THE 1999 TERM TABLE 3: UNANIMITY PERCENTAGE- 1999 Unanimous With concurrences (without dissent) With dissent Total 15 (78,9%) 1 (5,3%) 3 (15,7%) 19 (100%) Cases In this table, 'unanimous' means that all judges concurred in both the judgment of the Court and the order. 'With concurrences (without dissent)' means that at least one judge wrote separately but concurred in the order of the Court and that no judge dissented. 'With dissent' means that at least one judge would have made a different order. TABLE 4: VOTING ALIGNMENTS: JUDGES OF THE COURT -1999 La Ac Go 19/19 100% 19/19 100% 19/19 100% 17/17 100% 17/17 100% 17/17 100% 7/7 17/17 100% - 7/7 7/7 7/7 100% 19/19 100% 18/19 95% 8/8 100% 15/18 83% 18/19 95% 17/17 100% 6/7 86% 100% 17/17 100% 16/17 94% 6/6 100% 13/16 81% 16/17 94% 15/15 100% 5/6 83% Ch Ch La Ac Go Kr Md Mo Ng OR Sa Ya Ca 19/19 100% 19/19 100% 17/17 100% 7/7 100% 19/19 100% 18/19 95% 8/8 100% 15/18 83% 18/19 95% 17/17 100% 6/7 86% - 19/19 100% 17/17 100% 7/7 100% 19/19 100% 18/19 95% 8/8 100% 15/18 83% 18/19 95% 16/17 94% 6/7 86% - Md Mo Ng OR Sa Ya 100% 19/19 100% 19/19 100% 19/19 100% 17/17 100% 18/19 95% 18/19 95% 18/19 95% 16/17 94% 8/8 100% 8/8 100% 8/8 100% 6/6 100% 15/18 83% 15/18 83% 15/18 83% 13/16 81% 17/17 100% 16/17 94% 17/17 100% 15/15 100% - 7/7 7/7 - 7/7 100% 100% 18/19 95% 18/19 95% 18/19 95% 18/19 95% 16/17 94% 6/7 86% 18/19 95% 17/19 89% 8/8 100% 14/18 78% Kr 100% 7/7 100% 7/7 100% 7/7 - 100% 7/7 100% 7/7 100% 6/7 86% 7/7 100% - 18/19 95% 8/8 100% 15/18 83% 18/19 95% 17/17 100% 6/7 86% - 7/8 88% 16/18 89% 17/19 89% 17/17 100% 7/7 100% 8/8 100% 7/8 88% - 6/7 86% 8/8 100% 6/6 100% 6/7 86% 100% 15/18 83% 16/18 89% 6/7 86% - 14/18 78% 14/16 88% 6/6 100% - 16/17 94% 6/7 86% 7/7 100% 17/17 100% 17/17 100% 6/6 100% 14/16 88% 16/17 94% 5/5 100% In this table, the second number represents the total number of cases in which two judges have sat together. The first number represents the number of cases in which two judges have either fully agreed in a judgment of the other, co-written a judgment, or fully agreed in a judgment of another judge. If a judge writes that he or she is concurring but only overall or with certain reservations or with any restatement of the other judge's views, this is not classified as full agreement. Thus, judgments that are in substance very similar may well be counted as not agreeing for the purposes of this table. The voting alignment of Cameron AJ is reflected out of alphabetical order in the bottom row of the table. 369 (2000) 16 SAJHR TABLE 5: SUBJECT MATTER OF CASES DECIDED -1999 Rights Civil SAN, NNP, DP, Ag, FNB, NC, Le, SAR1 (8) Dl, Ma, Ba, Tw (4) Criminal Intra-Governmental Total Other Total SAR2 (1) 9 (47,4%) FEI (1) Pr, LB, EC, ECW, CMC (5) 5 (26,3%) 5 (26,3%) 7 (36,8%) 19 (100%) 12 (63,2%) In this table cases are classified as 'criminal' when a person is subject to the criminal or penal laws. 'Intra-governmental' cases are those cases between two organs of government or, as in certification judgments, ex parte on behalf of one organ. Other cases are civil. Cases are classified as 'rights' if the majority judgment on the principal issue turns on a fundamental right. TABLE 6: GOVERNMENT SUCCESS RATE -1999 For government Against government Civil NNP, DP, FNB, FEI, SAR1, SAR2, LB (7) SAN, Ag, NC, Ma, Le (5) Criminal Dl, Ba, Tw (3) Intra-Governmental Pr, CMC, ECW (3) Total 13 (68,4%) EC (1) 6 (31,6%) Cases are classified as 'for government' if a central, provincial or local government or an agency or a person in an official capacity prevails on the principal issue. A case is also counted as 'for government' if the status quo ante prevails. If the central government opposes another organ of government, the case is classified as for the government if the central government or a court, an agency or a person in an official capacity prevails. If a Chapter 9 institution (1996 Constitution) opposes the government, the case will be classified as 'against government' if the Chapter 9 institution prevails. If agencies or organs of equivalent tiers of government are opposed, the case is counted as neither for nor against the government. Due to its relatively formalistic definition, this table should be used with particular caution. 370 CONSTITUTIONAL COURT STATISTICS FOR THE 1999 TERM TABLE 7: JURISDICTIONAL BASIS OF CASES -1999 Basis of Jurisdiction Appeals Appeals Direct Dismissed Direct acctlSS Referral (s 67(6)(a) from tor lack ol PresidenUal Direct ol orders ~galnst onlen appeals jurlsdlcreferral access read with otlnvatldlly of Invalidity from HC the SCA (S 79(4)(b)) (S 167(6)(a)) s 167(4)) (s 172(2)(a)) (s 172(2)(d)) (s 167(6)(b)) (s 167(6)(b)) lion LB FNB, EC, ECW Pr Ba, Le, Ma FEI, NC (5,3%) (15,8%) (5,3%) (15,8%) (10,5%) Dl, DP, NNP, SAN, Ag, SAR2, Tw, CMC (42,1%) AppllcaUon tor recusal SAR1 (5,3%) This table examines the basis of jurisdiction after decision by the Court, rather than the jurisdiction invoked to place the case on the Court roll. There may be cases which are both referrals of orders of invalidity and appeals against orders of invalidity. Where this occurs, such as in NC, the case is recorded as an appeal against an order of invalidity. 'Direct appeals from HC' also includes applications for leave to appeal. TABLE 8: TIME FROM HEARING TO WRITTEN REASONS* -1999 (Decision Date) Days to Written Order (29 March 1999) (1 April 1999) (13 April1999) (13 April 1999) (26 May 1999) (3 June 1999) (4 June 1999) (24 August 1999) (2 September 1999) (1 0 September 1999) (15 October 1999) (11 November 1999) (16 November 1999) (2 December 1999) (2 December 1999) (3 December 1999) 34 13 15 28 62 105 28 91 99 120 52 72 63 16 107 24 (Hearing Date) Pr (23 February Ag (19 March DP (29 March NNP (16 March SAN (25 March Dl (18 February SAR1 (7 May FEI (25 May EC (26 May SAR2 (13 May ECW (24 August LB (31 August Le (14 September Tw (16 November NC (17 August Ba (9 November 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) 1999) Mean Time Hearing to Decision: 58 days • 'Written reasons' refers to the day on which reasons were given. In SAR1 and EC the decision of the Court was given before the written reasons. Where the hearing takes place over several days the last day of the first continuous period of hearing is used for calculation. In some instances, cases were disposed of without there being a separation between the hearing and the decision date. No time calculation is made for such cases. FNB, CMC and Ma are not included in this table, since in these cases there was no hearing at all. 371 (2000) 16 SAJHR TABLE 9: PROSPECTIVE TERMS OF THE CONSTITUTIONAL COURT JUDGES Name Date of birth Age at 31/12/1999 (In years and months) Chaskalson 24/11/1931 68 yrs 1 mth 07/1994 11 /2001 (70) 1 yr 11 mths Kriegler 29/11/1932 67 yrs 1 mth 10/1994 11/2002 (70) 2 yrs 11 mths Ackermann 14/01/1934 65 yrs 11 mths 08/1994 01/2004 (70) 4 yrs 1 mth Sachs 30/01/1935 64 yrs 11 mths 10/1994 01/2005 (70) 5 yrs 1 mth 6 yrs 10 mths Date of beginning of term of office Cut-off date of term of office* Years untll cut-off date (from 31/12/1999) Madala 13/07/1937 62 yrs 5 mths 08/1994 10/2006 (FT) Goldstone 26/10/1938 61 yrs 2 mths 08/1994 07/2006 (FT) 6 yrs 7 mths Lang a 25/03/1939 60 yrs 9 mths 10/1994 07/2006 (FT) 6 yrs 7 mths Yacoob 03/03/1948 51 yrs 9 mths 02/1998 02/201 0 (FT) 10 yrs 2 mths Mokgoro 19/10/1950 49 yrs 2 mths 10/1994 07/2006 (FT) 6 yrs 7 mths Ngcobo 01/03/1953 46 yrs 9 mths 08/1999 08/2011 (FT) 11 yrs 8 mths O'Regan 17/09/1957 42 yrs 3 mths 10/1994 07/2006 (FT) 6 yrs 7 mths * (70) indicates that the judge will turn 70 before his/her maximum 12 years of office have been completed. (FT) indicates that the judge will be able to complete a full12-year term before his/her 70th birthday. The terms of office of Constitutional Court judges are dealt with in s 176(1) of the 1996 Constitution, which provides that a Constitutional Court judge is appointed for a non-renewable term of 12 years, but must retire at the age of 70. This table identifies the prospective terms of office of the Constitutional Court judges as of31 December 1999. Acting judges are not included in this table. ALLEN LEUTA Student of Law, University of the Witwatersrand KIRSTY MCLEAN Student of Law, University of the Witwatersrand MABATHO NTELEKI Student of Law, University of the Witwatersrand JACK PHALANE Student of Law, University of the Witwatersrand ANDREW SMITH Student of Law, University of the Witwatersrand JONATHANKLAAREN Associate Professor of Law, University of the Witwatersrand