Letters to the Editor – March 2018

March 1st, 2018


PO Box 36626, Menlo Park 0102 

Docex 82, Pretoria  

E-mail: derebus@derebus.org.za 

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Letters are not published under noms de plume. However, letters
from practising attorneys who make their identities and
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Value of a minority judgment

On 29 December 2017, judgment was handed down by the Constitutional Court (CC) in the matter of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CC) (unreported case no CCT76/17, 29-12-2017) in which the majority of the court held, inter alia, that the National Assembly failed in following its constitutional obligations to hold former President Jacob Zuma to account for having violated his oath of office and to uphold the Constitution following the remedial action recommended by the Public Protector in respect of the upgrades to his Nkandla homestead.

Noteworthy in this matter were two dissenting judgments handed down by Chief Justice Mogoeng Mogoeng and Deputy Chief Justice Raymond Zondo. This very fact resulted in a rather vocal criticism by the political leadership of the Economic Freedom Fighters of the conduct of the Chief Justice for having publicly insisted that his dissenting judgment be read.

I submit that criticism of this is inappropriate and misplaced particularly in the light of the judgment handed down by Judge Johan Froneman who concurred with the finding of the majority. It is instructive for me to quote verbatim from this judgment from paras 280 and 281 thereof:

‘[280] It is part of constitutional adjudication that, as in this matter, there may be reasonable disagreement among judges as to the proper interpretation and application of the Constitution [this is true of adjudication in other spheres as well. Compare Phakane v S (CC) (unreported case no CCT61/16, 5-12-2017) at para 61]. The respective merits of opposing viewpoints should be assessed on the basis of substantive reasons advanced for them. There is nothing wrong in that substantive debate being robust, but to attach a label to the opposing view does nothing to further the debate.

[281] For the reasons lucidly set out in the second judgment [being the majority judgment of Judge Chris Jafta], I do not agree with the reasoning of the Chief Justice and the Deputy Chief Justice in their respective judgments. I do not, however, consider the different outcome that they reach to be the product of anything other than a serious attempt to grapple with the important constitutional issue at hand. The fact that I do not agree with their reasoning or the outcome that they propose does not mean that I consider them to have abdicated their responsibility to ensure that the National Assembly acts in accordance with the Constitution.’

It would do us well to bear in mind that the hallmark of an independent judiciary discharging their obligation without fear, favour or prejudice is the ability of different agile minds reaching a different conclusion and outcome on being presented with the same facts in the case before them.

Leslie Kobrin, attorney, Johannesburg



The headline in the article by Dr Fareed Moosa ‘Remuneration of benefits from a will: Who is a “spouse”’ (2018 (Jan/Feb) DR 28) was published incorrectly, and should read: ‘Renunciation of benefits from a will: Who is a “spouse”’. De Rebus would like to apologise for the mistake and for any inconvenience caused in the matter.


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This article was first published in De Rebus in 2018 (March) DR 4.