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‘[T]he Constitution, at least per se matter, does not forbid judges to wear two hats; it merely forbids them to wear both hats at the same time’ (Ronald J Krotoszynski Jr ‘On the danger of wearing two hats: Mistretta and Morrison Revisited’ (1997) 38 William and Mary Law Review 417).
As a prefatory remark, it is appropriate to state the following: ‘The independence of the judiciary is a “distinctive feature of a constitutional democracy” and is an important feature of the doctrine of the separation of powers’ (Scott Roberts ‘Chapter 5: The Judiciary’ (https://openbooks.uct.ac.za, accessed 10-10-2023).
In this brief analysis, I seek to venture and reflect on the elegant legal prowess of our Constitutional Court (CC) that gives meaning to the rarest of legal gifts, elegantia juris. In short, to bring some understanding of constitutional refinement, and in particular how the court analyses matters, putting together the final fabric for us all to ‘wear’ with pride, as it reflects a well-tuned constitutional democracy with checks and balances.
I will preface my analyses with the Constitution, where it provides for the separate functioning of the different branches. In terms of s 41(1), it is provided that:
‘All spheres of government and all organs of state within each sphere must –
…
(f) not assume any power or function except those conferred on them in terms of the Constitution;
(g) exercise their powers and perform their functions in a manner that does not encroach on the … functional or institutional integrity of government in another sphere.’
However, experience and jurisprudence on the subject of a complete separation of powers doctrine has not been developed to the extent that there may never be one branch of government not reaching out to the other in the execution of the day-to-day operations of government. In other words, no independent judiciary exists in a separate isolated capsule from the other branches of the state.
Although Montesquieu eventually propounded the idea of the separation of powers, the doctrine developed into a norm comprising of four principles, as follows:
‘(a) The principle of trias politica, which simply requires a formal distinction to be made between the legislative, executive and judicial components of state.
(b) The principle of the separation of personnel, which requires that the power of legislation, administration and adjudication be vested in three distinct organs of state authority and that each one of those organs be staffed with different officials and employees; that is to say, a person serving in the one organ of state authority is disqualified from serving in any of the others.
(c) The principle of the separation of functions, which demands that every organ of state authority be entrusted with its appropriate function only; that is to say, the legislature ought only to legislate, the executive to confine its activities to administering the affairs of state, and the judiciary to restrict itself to the function of adjudication.
(d) The principle of checks and balances, which represents the special contribution of the United States to the notion of separation of powers, and which requires that each organ of state authority be entrusted with special powers designed to keep a check on the exercise of functions by the others in order that the equilibrium in the distribution of powers may be upheld’ (JD van der Vyver ‘The separation of powers’ (1993) 8 SAPL 177 at 178).
In the American Constitution, Article 1 provides that: ‘All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ There is, however, no express injunction in the American Constitution to ‘preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. Yet, it does grant to three separate branches the powers to legislate, to execute, and to adjudicate, and it provides throughout the document the means by which each of the branches could resist the blandishments and incursions of the others’ (Johnny H Killian, George A Costello and Kenneth R Thomas The Constitution of the United States of America: Analysis and interpretation: Analysis of cases decided by the Supreme Court of the United States to June 28, 2002 (US Government Printing Office 2004)).
In my view, as shall be evinced, the apex court toilfully visits every avenue of interpretation so as to ensure clarity in giving meaning to the famous expression, ‘everything that is visible hides something else that is invisible’ (ME Ross Salvador Dali and the Surrealists: Their Lives and Ideas (Chicago Review Press 2003) at 53).
Put in another way, the apex court ensures that any concealed layers beneath which the proper interpretation exists is traced and sketched out in the very articulate judgment, which follows.
In Speaker of the National Assembly v Public Protector and Others 2022 (3) SA 1 (CC), the apex court explicitly sheds light on the proper interpretation of the role of a judge appointed to the panel and whether or not such appointment undermines judicial independence, and of course the doctrine of separation of powers.
The case finding its way into the corridors of the CC is to be located in Public Protector v Speaker of the National Assembly (WCC) (unreported case no 2107/21, 28-7-2021) (Baartman J (Dolamo and Nuku JJ concurring)).
The Public Protector raised issues concerning the removal of Chapter 9 Heads. The crux of the application was that the new rules, inter alia, regarding the panel were unconstitutional.
In terms of r 129V of the Rules of the National Assembly:
‘(1) The panel must consist of three fit and proper South African citizens, which may include a judge, and who collectively possess the necessary legal and other competencies and experience to conduct such an assessment.
(2) The Speaker must appoint the panel after giving political parties represented in the Assembly a reasonable opportunity to put forward nominees for consideration for the panel, and after the Speaker has given due consideration to all persons so nominated.
(3) If a judge is appointed to the panel, the Speaker must do so in consultation with the Chief Justice.’
The court a quo acknowledged that the separation of powers doctrine model in South Africa is not one that requires a complete or total separation. In support of this argument, the court set out the test as pronounced by Zondo J in the NSPCA v Minister of Agriculture, Forestry and Fisheries, and Others 2013 (5) SA 571 (CC) at para 38, where Zondo J laid down the test by stating ‘an appropriate approach to the determination of whether the performance of a function by a member of the judiciary offends the separation of powers would involve the following questions:
(a) Whether the function complained of is a non-judicial function. If it is a judicial function, that is the end of the inquiry as there can be no concern. If it is a non-judicial function, the inquiry proceeds to (b) below.
(b) Whether the performance of the non-judicial function by a member of the judiciary is expressly provided for in the Constitution. If it is, that is the end of the inquiry as there can be no infringement of the separation of powers. If it is not, the inquiry proceeds to (c) below.
(c) Whether the non-judicial function is closely connected with the core function of the judiciary. If it is, then the doctrine of the separation of powers is not offended. If it is not, the inquiry proceeds to (d) below.
(d) Whether there is any compelling reason why a non-judicial function which is not closely connected with the core function of the judiciary should be performed by a member of the judiciary, and not by the executive or a person appointed by the executive for that purpose. If there is, the separation of powers is not offended. If there is not, the separation of powers is offended and the relevant statutory provision, or the performance of such a function by a member of the judiciary, is inconsistent with the Constitution and must be declared unconstitutional.’
The High Court held further that it was ‘persuaded that the reference to a judge in the relevant section can be severed with no adverse effect to the new Rules.’ The court also placed reliance in Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) at para 16, where it was held that: ‘Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: If the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The test has two parts: First, is it possible to sever the invalid provisions and, second, if so, is what remains giving effect to the purpose of the legislative scheme?’
As opposed to the ‘desirability’ stance taken by the High Court, the CC positioned the argument, inter alia, from the lens of ‘permissibility’.
The apex court reasoned that such a rule pertains to the role of a judge in non-judicial function and did not relate to the appointment of a judge by the President or the Judicial Service Commission. The court clarified the issue of a judge in non-judicial roles, making reference to South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC) in which Chaskalson P held that ‘it is permissible for a judge to fulfil a non-judicial role, with the caveat “that the performance of functions incompatible with judicial office would not be permissible”’.
Accordingly, the challenges did not withstand constitutional scrutiny, dismissing the application of the Public Protector concerning the unconstitutionality of r 129V. The appointment of the judge to the panel, therefore, the CC held, did not offend against the separation of powers doctrine and such appointment did not in any manner violate the domain of judicial independence.
It is deducible that the craftsmanship of the CC, reflects or demonstrates robustness and the courage of conviction exhibiting profoundness of well thought out arguments. Undoubtedly, in expounding the principles of constitutional imperatives it invariably indicates that the text of our Constitution is not a seasonal script, to be applied arbitrarily, according to personal desires, but that which constantly requires a careful, well-reasoned, engineering approach of interpretation where legislations or constitutional issues are in dispute. The need to keep in place judicial independence through the wisdom of its magnifying lens serves to reaffirm the importance of the Constitution as the lodestar to ensure checks and balances. As we embark on our journey as judicial officers, we are enjoined to induct these noble and notable ideas forming the core of the apex court philosophy in our judgments so that we do not lose sight of such accomplishments by the apex court.
In essence, the lesson to be gained from the Constitutional Court’s methodology of reasoning invokes in us as judicial officers to consider what was described in Lon Fuller’s article ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616 to some extent and worthy of concluding with such analyses. When making decisions, ‘within the ethic of care, reasoning draws on interconnections between people and seeks to minimise harms to others; for example, statutes should be interpreted in the light of their effect on people’s interactions and mutual interdependence. Within the ethic of justice, reasoning is based on hierarchies of values, seeking to do what is morally (or legally) right’; such as the people’s interactions should be interpreted in the light of whether they comply with the laws as written (Naomi R Cahn, John O Calmore, Mary I Coombs, Dwight L Greene, Geoffrey C Miller, Jeremy Paul and Laura W Stein ‘The Case of the Speluncean Explorers: Contemporary Proceedings’ (1993) 61 The George Washington Law Review 1754 at 1761). It is with such interpretation of statutes that we would find appropriate statutory application.
Ganasen Narayansamy JP.ED SP.ED BCom BProc LLB Conveyancing and Notarial Practice (NDP) LLM is an additional magistrate in Queenstown.
This article was first published in De Rebus in 2023 (Nov) DR 20.
