{"id":195296,"date":"2021-07-16T19:15:16","date_gmt":"2021-07-16T17:15:16","guid":{"rendered":"https:\/\/www.myza.co.za\/south-africas-constitutional-court-the-case-for-judicial-dissent-and-the-caveats\/"},"modified":"2021-07-16T19:15:16","modified_gmt":"2021-07-16T17:15:16","slug":"south-africas-constitutional-court-the-case-for-judicial-dissent-and-the-caveats","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/south-africas-constitutional-court-the-case-for-judicial-dissent-and-the-caveats\/","title":{"rendered":"South Africa’s Constitutional Court: the case for judicial dissent, and the caveats"},"content":{"rendered":"
<\/div>\n

When constitutional democracy is under strain, how should we view disagreement among judges in a court of (supposed) last resort?<\/p>\n

Two weeks ago, South Africa\u2019s Constitutional Court handed down judgment in two cases with high political stakes<\/a>.<\/p>\n

First, it was Acting Deputy Chief Justice Khampepe who read<\/a> the court\u2019s reasons<\/a> for its punitive order sentencing former president Jacob Zuma to 15 months\u2019 imprisonment. This was for contempt of its earlier order<\/a> directing him to comply with the summonses and directives issued by the Zondo Commission.<\/p>\n

Then, two days later, Justice Jafta delivered<\/a> the court\u2019s withering critique<\/a> of Public Protector Busisiwe Mkhwebane\u2019s disregard for both the facts and the law in her findings and remedial action against President Cyril Ramaphosa in relation to campaign donations.<\/p>\n

The outcome of each case is of undeniable political consequence. They add to a string of legal losses that has landed the former president in prison<\/a> and the incumbent public protector perilously close to impeachment<\/a>. <\/p>\n

Taken together, the judgments shift the fault lines of power<\/a> in South Africa\u2019s fragile democracy.<\/p>\n

But the court was split in both decisions.<\/p>\n

While the court was unanimous in finding Zuma in contempt of its orders, a partial dissent written by Justice Theron (with Justice Jafta concurring) parted ways with the majority on the question of sanction. And in the campaign donations case, Chief Justice Mogoeng found himself alone in finding merit in the public protector\u2019s appeal.<\/p>\n

These minority judgments are now being used to shore up support for spurious challenges to the finality of the court\u2019s judgments. Zuma has applied<\/a> to the court for the rescission of its \u201cerroneous\u201d and \u201cunconstitutional\u201d judgment. And Mkhwebane has indicated<\/a> that she may follow suit with a rescission application of her own.<\/p>\n

This calls into question the status of minority judgments in a court of last resort. The court\u2019s answer to Zuma\u2019s rescission application will influence the future practice of judicial dissent. But it will also have profound implications for the court\u2019s authority and the rule of law in South Africa.<\/p>\n

Wielding dissents to undermine judicial authority<\/h2>\n

Zuma has long questioned<\/a> the logic of dissents. He did so most memorably in an interview with The Star in February 2012:<\/p>\n

\n

How could you say that judgment is absolutely correct when the judges themselves have different views about it? \u2026 There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?<\/p>\n<\/blockquote>\n

On this occasion, Zuma is using a minority judgment to mount a more fundamental challenge to the authority of the court\u2019s ruling against him.<\/p>\n

His rescission application claims that the key sting of the minority judgment was<\/p>\n

\n

the unprecedented announcement that the Constitutional Court had acted unconstitutionally and therefore irrationally or has exceeded its judicial authority and mandate (para 95). <\/p>\n<\/blockquote>\n

This does not merely characterise the minority as having disagreed<\/em> with the majority. It portrays the minority as having pronounced<\/em> on the constitutionality of the majority judgment itself.<\/p>\n

This is a legal sleight of hand. <\/p>\n

Dissent often arises from disagreement between the judges about what the constitution requires in a particular case. But only the argument that garners majority support authoritatively answers that question. This simple but incontrovertible fact means that even the judges in the minority \u2013 notwithstanding their disagreement \u2013 would now have to recognise that the contempt case against Zuma was authoritatively and finally settled by the majority judgment.<\/p>\n

But, in keeping with his strategy of litigating by letters<\/a>, Zuma\u2019s distortion of the court\u2019s decision appears aimed at influencing the court of public opinion.<\/p>\n

As the guardian of the constitution, the court\u2019s legitimacy depends on public confidence that its rulings vindicate the constitution. By contending that the majority judgment is \u201cunconstitutional\u201d, Zuma casts the court as a threat to the constitution and, by implication, to his human rights as a \u201cvictim\u201d of the court\u2019s deviance.<\/p>\n

This is why the rescission application constitutes a continuing \u2013 and indeed more radical \u2013 assault on the court\u2019s authority and the rule of law. And here\u2019s the rub: Zuma portrays the dissent as having split the court in an internecine power struggle that renders the authority and finality of all its judgments<\/em> open to contestation.<\/p>\n

Questioning the value of dissenting judgments<\/h2>\n

Should South Africans lament the fact that the court did not speak with one voice when sanctioning Zuma for his contempt of court?<\/p>\n

A unanimous judgment can be a powerful way<\/a> to deliver justice in politically divisive cases. But there are reasons to value dissent even when \u2013 and perhaps especially when \u2013 one agrees with the majority judgment.<\/p>\n

Dissent is a vital sign that judicial independence is alive \u2013 and kicking.<\/p>\n

A split judgment bears out the existence of disagreement that is only possible where there is independent-mindedness on the bench. <\/p>\n

It could be argued, in fact, that applying the law \u201cimpartially and without fear, favour or prejudice<\/a>\u201d requires that judges be allowed to dissent. This is not to diminish the value of judicial deliberation aimed at reaching consensus. Rather it is to make the point that forcing consensus would ignore the inextricable link between a judge\u2019s freedom to dissent and their duty to apply the law impartially as a member of an independent judiciary.<\/p>\n

The publication of dissenting judgments also makes judges answerable for their decisions.<\/p>\n

The Constitutional Court, like other apex courts around the world, settles disagreement between judges through majority decision-making<\/a>. This is not simply a hand-raising exercise. Rather, judicial deliberation is a reason-giving practice. Judges are not only entitled<\/em> \u2013 as an exercise of judicial independence \u2013 to voice their own opinion. They are also obliged<\/em> to do so and to support their view with reasons.<\/p>\n

The transparency of the court\u2019s reasoned disagreement does not undermine its authority. On the contrary, dissent forces engagement with opposing views and, by inviting refutation, shows why one argument commanded the majority. <\/p>\n

Dissent as a counterpoint to political rhetoric<\/h2>\n

But does all this hold true in troubled times, when majority decisions are denounced as \u201cangry and emotional<\/a>\u201d and dissents are distorted for political gain?<\/p>\n

My answer is yes. Transparent and reasoned disagreement is the best antidote to the kind of noxious discourse that seeks to undermine public confidence in the court.<\/p>\n

Nevertheless there is a caveat. Robust judicial debate should be welcomed. But any points of disagreement should be spelled out through reasoned argument that does not jeopardise collegiality or public confidence in the judiciary.<\/p>\n

The court has, for the most part<\/a>, been beyond reproach on these scores. But the need for judicial discipline is heightened in politically divisive cases where the court\u2019s own words may be used against it by a litigant on the losing side.<\/p>\n

And this is the sting in the tail of this defence of dissents.<\/p>\n

Sting in the tail<\/h2>\n

In the Zuma contempt case, the minority advanced strong reasoning but regrettably also resorted to rhetoric that provided a foothold for discrediting the court. Most troubling is the accusation that the majority created law that is \u201cnot just bad; it is unconstitutional\u201d (para 191). Unsurprisingly, the minority\u2019s valuable insights have been overshadowed by selective soundbites more likely to trend on Twitter than persuade in legal argument.<\/p>\n

In the campaign donations case, Chief Justice Mogoeng invoked the judicial oath<\/a> in support of his sympathetic stance towards the public protector. But in doing so, he fed a political narrative<\/a> that judges are biased along factional lines \u2013 the very discourse he enjoined the majority to eschew.<\/p>\n

Notwithstanding these slips in judicial voice, the court should offer no apology for its split judgments.<\/p>\n

This is what hangs in the balance in Zuma\u2019s rescission application: Will the court affirm both the value of the dissent and the finality of the majority decision? Or will the judges stubbornly rehash the debate that previously divided them and so fall prey to the attack on the court\u2019s authority?<\/p>\n

Somewhat paradoxically, if the virtues of dissent are to be vindicated, the court must now affirm in unanimous<\/em> voice that it has settled the law \u2013 and settled it finally.<\/p>\n

Source: The Conversation<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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