Article by The Hon Mr Justice IG Farlam, Patron of the Centre for Constitutional Rights.
The Apex Court
The adoption of the proposal embodied in draft legislation to be considered by Parliament later this session that the Constitutional Court should be accorded the status of the apex court for all matters, whether constitutional or otherwise, will amount to the reversal of an important policy decision taken by the Constitutional Assembly and will undermine a valuable constitutional purpose sought to be achieved by the framers of the Constitution, without any compensating advantage. It is hoped that when its full implications are considered it will not be proceeded with.
In order properly to consider whether the proposal should be accepted it is necessary to revisit decisions made in the Constitutional Assembly when the terms of the Constitution were finalised. The Constitutional Assembly was faced with a choice: either to have a single apex court, such as is found in the United States or Canada (in other words, a court such as is now proposed) or to follow a growing trend in modern constitutions elsewhere in the world and to make provision for a specialist constitutional court which is separate from the courts of ordinary jurisdiction and which is concerned only with constitutional matters. After careful and thorough consideration it was decided to follow the modern trend and to establish a separate constitutional court. This trend has been followed in over 40 countries, including Austria (the first in 1920), Germany, Italy, Spain, Portugal and Belgium.
The decision was also made to incorporate, with adaptations, a number of features to be found in the German Constitution, e.g., a special appointment procedure which gives recognition to the fact that many of the decisions to be made by the Court relate to constitutional issues which are closely bound up with socio-political issues. Another feature taken over from Germany was the idea that judges of the Constitutional Court are appointed for a single non-renewable term (12 years in Germany, now 12 to 15 years in South Africa, depending on the circumstances). The thinking behind this was based on an acceptance of the fact that, as many decisions of the Constitutional Court depend in the last analysis on socio-political questions, it is important that socio-political attitudes that found favour years ago should not continue to be determinative of decisions of the top court.
That principle was re-affirmed in 2001 when the present Judges' Remuneration Act was passed. It is clear that our Constitutional Court - like its German prototype - was simply not devised to function as a court of last resort in cases other than constitutional cases. The socio-political attitudes and constitutional expertise of the members of the Court are considered to be more important than the depth of their knowledge and experience of, and expertise in, the many fields of the common and statute law of South Africa. This is made plain by section 174 (5) of the Constitution which provides: 'At all times, at least four [out of eleven] members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court.' In other words a majority of the members of the Court need not have any judicial experience, either as judges of first instance or as appellate judges. While this has the advantage already stated in constitutional matters, the reverse is the case in other matters where it is important that the members of the top court which decides such cases have extensive experience and expertise in the law and judicial practice. Hence the decision to have a two apex court system.
Another important factor to be borne in mind in evaluating the proposal is the fact that the present incumbents of the Constitutional Court were not appointed to it in circumstances which required either the Judicial Service Commission or the President (or the leaders of the parties in the National Assembly whom he had to consult regarding their appointment) to apply their minds as to the fitness of the appointees for office in a court of last resort in non-constitutional matters. Yet it is now proposed that they be given this jurisdiction without having gone through a selection process intended to ensure that they are indeed fit to exercise it.
The structure of the judiciary is a vital feature of any constitution. Before the provisions of the Constitution dealing with this structure are amended there must be fundamental and cogent reasons for doing so. If there are such reasons for extending the jurisdiction of the Constitutional Court to non-constitutional issues, they must be advanced and fully debated. No such reasons have been advanced in the present case, nor has anything happened since 1996, when the Constitution was enacted, to suggest that the framers of the Constitution erred in adopting the model they did.
It must be remembered after all that the Constitution is the supreme law and its provisions were carefully considered and hammered out during lengthy debates, first at Codesa and later in the Constitutional Assembly and its various sub-committees. It has been acclaimed internationally. It is not simply another law. It is not to be amended merely because one or more individuals or even the government of the day may think they have a better idea or think they can improve on it, whether for political reasons or otherwise. To adopt such an approach is anathema to the very notion of constitutionalism.
There is, and must be, a heavy burden of persuasion on those who wish to amend the Constitution. There is in fact even less reason now than there was in 1996 to give the Constitutional Court the wider jurisdiction now proposed. This is so since those judges who made up the initial complement of the Court (six of the eleven were sitting judges) have all either died or retired. They have been replaced by judges many of whom have far less experience in the type of judicial work performed by the Supreme Court of Appeal. That work comprises largely the application and development of the common law (typically the law of contract, property, delict and unjustified enrichment) and perhaps even more importantly the general body of commercial law, including company law, the law of insolvency, negotiable instruments, suretyship and insurance, as well as the more esoteric and specialised branches of the law such as the law of intellectual property, admiralty and tax. The issues involved frequently have an international commercial component and are of concern to foreign investors and those who do business with this country. It is true that most of the subsequent appointments to the Constitutional Court have been from the ranks of High Court judges. But the vast majority of these appointments have been based quite clearly on the suitability of the appointees to decide human rights and constitutional issues rather than for the type of judicial work performed by the Supreme Court of Appeal. There is accordingly no justification for extending the jurisdiction of the Constitutional Court to matters other than constitutional matters.
If the proposal is adopted and the other provisions relating to the Constitutional Court remain as they are at present (as is the Government's stated intention, because the proposal to extend the tenure of the members of the Court is not being persisted in) it will mean that over twelve to fifteen years there will have to be a changing of the guard. As stated, this has distinct advantages where constitutional cases are concerned but those advantages are clearly outweighed where constitutional considerations are not present.
It is clear that if the proposal to make the Constitutional Court the apex court for South Africa on all legal matters is implemented one of two things will happen. Either there will be another amendment later to do away with the changing of the guard principle so that stability, skills and experience will not be lost - but with the undesirable constitutional consequences the Germans and the Constitutional Assembly have striven to avoid - or the changing of the guard principle will remain, with the consequent loss of skill and experience. Neither of these alternatives is satisfactory. They can only be avoided by not departing from the policy decision deliberately made by the Constitutional Assembly.
The suggestion made in some quarters that the present judicial structure is 'anomalous' reveals a lack of understanding of the thinking behind that policy decision. Furthermore it suggests that the Constitutional Assembly made quite an elementary mistake in reaching that decision, a mistake moreover made by over forty countries all over the world.
This does not mean however that our present system of two apex courts should necessarily be set in concrete. There may be a case for jettisoning the German model, for abandoning the modern international trend we decided to follow in the mid 90s and for reverting to a single apex court system. But if we are to do that it must first be clearly established that the present model is not working and that the change envisaged would improve things. If after thorough investigation and deliberation, we come to the conclusion that such a change is necessary, far-reaching amendments to the Constitution (so as to provide for such fundamental issues as the composition of the Court, the criteria on which its members are to be appointed and the way it is to operate, e.g., sitting as a court of five or otherwise) will be required.
The Hon Mr Justice IG Farlam
2 April 2011