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Pentimenti is a very interesting Italian term, often applied in the study of art where repented traces or sketches concealed by layers of paint soon reveal themselves (Douglas Oliveira Diniz Goncalves ‘Pentimenti reading: Unraveling hidden interests and values behind constitutional drafts’ 2022 (Jan) Academia Letters (www.academia.edu, accessed 3-11-2023).
It helps artists to analyse their intentions, motives and impulses. It is used not only to produce the final product or result but also show the undesired parts of their work. The art of searching beneath the layers of paint to reveal what is hidden, is the idea behind this ‘philosophy’.
The article posits the Constitutional Court’s (CC’s) embrace of interpretive skills that serves as persuasive, based on principles that are indicative of the most mature deliberations and adjudications to bring to the surface the hidden meaning, purpose or intention of a statute and adds constructive value to the René Magritte 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).
I shall restrict the discussion to the second challenge, arising from the Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others (The Right2know Campaign and Another as Amici Curiae) [2019] 4 All SA 343 (GP); 2020 (1) SA 90 (GP); 2020 (1) SACR 139 (GP). The High Court declared s 1 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) as unconstitutional.
The matter subsequently proceeded before the CC for a declaration of unconstitutionality. The second challenge relates to, inter alia, the issue of a ‘designated judge’ and the issue of ‘judicial independence’, in terms of s 1 of RICA (see para 55 and para 62, respectively, of the High Court declaration of invalidity of s 1 of RICA).
Accordingly, the CC in Amabhungane Centre For Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2021 (3) SA 246 (CC), was faced with the interpretation of s 1 of RICA, to the extent that the said section was declared unconstitutional by the High Court, in so far as the issue of a ‘designated judge’ and ‘independence of the designated judge’ is concerned.
Section 1 of RICA provides that:
‘(1) In this Act, unless the context otherwise indicates –
…
“designated judge” means any judge of a High Court discharged from active service under section 3(2) of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), or any retired judge, who is designated by the Minister to perform the functions of a designated judge for purposes of this Act.’
The case before the apex court is for a confirmation of declaration of invalidity in terms of s 172(1) of the Constitution. The apex court went about in its interpretation by infusing its ‘interpretative skills’ stent into the very heart of the statute to bring alive the true or actual meaning as intended by the legislature.
The case strikes at the very heart of statutory interpretation. In crystallising the interpretation of a statute, one view is that it ‘is not some normative judgment that could but does not underlie the law, but rather the normative judgment that in fact underlies the law’ (Michael Perry ‘A brief comment on motivation and impact’ (1978) 15 San Diego Law Review 1173). Legislative intent is, therefore, indisputably relevant to constitutional adjudication. ‘Definitions, “allow the identification of norms by elucidating the sense in which expressions are used”’ (Jeanne Price ‘Wagging, not barking: Statutory definitions’ (2013) Scholarly Works 764).
The majority and minority judgments seemingly are delineated along the margin of the maxim, ‘he who clings to the letter, sticks in the bark’ (William C Anderson A Dictionary of Law (Chicago: TH Flood and Company, Law Publishers 1893) 634).
The CC thus had to flex its statutory interpretive muscles to unearth and bring to surface the intended meaning in RICA with reference to ‘designated judge’, primary, ancillary and implied powers.
The minority judgment took the view that s 1 of RICA concerns what the phrase “designated judge” means, and nothing else.’ It is further held that the text does not even remotely contemplate the Minister’s power to designate. The section basically sets out that such appointments are made from a pool of retired judges and ‘is not concerned with the power to designate.’
It was further held that the expression, ‘[i]n this Act, unless the context otherwise indicates’, was interpreted to mean that the defined meaning applies to the relevant Act only, as was stated in Independent Institute of Education (Pty) Ltd v Kwazulu-Natal Law Society and Others 2020 (2) SA 325 (CC); 2020 (4) BCLR 495 (CC) at para 16. The word ‘university’, the court held, in the Higher Education Act 101 of 1997, is confined to instances where the Higher Education Act applies.
In its reasoning, the minority judgment held that s 3 of the old Interception and Monitoring Prohibition Act 127 of 1992, provides for the interception direction to be issued by a judge designated by the Minister and such a provision is lacking in RICA. Accordingly, s 1 does not confer ‘express power’ and, therefore, the Minister’s power to designate cannot constitute an ‘implied power’.
The majority judgment on the other hand, delves into the core of s 1 of RICA to determine whether the said section provides for the power to designate a judge. The court considered, for example, the legal maxim or principle ‘ut res magis valeat quam pereat’ (it may rather become operative than null).
As such, the court held, rather than to render RICA virtually inoperable as a result of a lack of power to designate, an interpretation that finds power to designate a judge in terms of s 1, read with the other provisions referred to, commend itself.
The court substantiated its argument by including the dictum of Kotze CJ in Hess v The State (1895) 2 ORC where it is held:
‘Where the meaning of a section in a law is uncertain or ambiguous it is the duty of the court to consider the law as a whole, and compare the various sections with each other and with the preamble, and give such meaning to the particular section under consideration that it may, if possible, have force and effect.’
In applying the principles of ancillary powers as articulated by Hoexter, the court held that, ‘[t]here is a very strong argument in favour of implying a power if the main purpose of the statute cannot be achieved without it’ (Cora Hoexter Administrative Law in South Africa (Cape Town: Juta 2012) at 45).
The majority concluded that the section indeed provides for the power to designate a judge as provided in s 1 of RICA, being an implied primary power, as the only viable interpretation. Such conclusion was arrived at by the majority after considering the in-depth analysis of the structure and purpose of RICA (at para 79).
On the issue of independence, the words of the well-known Justice Chase come to bear on us, when he stated:
‘We are not at liberty … to inquire into the motives of the legislature. We can only examine into its power under the constitution’ (Charles B Elliott ‘The legislatures and the courts: The power to declare statutes unconstitutional’ (1890) 5 Political Science Quarterly 224 at 257).
The court held that judges are appointed in terms of s 174(3) of the Constitution after consultation with the Judicial Services Commission (JSC), and there was, therefore, a need to scrutinise the ‘structural or perceived’ independence of the judiciary. Further, there are rigorous interview processes, judges’ terms of office are strictly regulated, court hearings are conducted in open courts and these processes allow for public scrutiny.
Therefore, in light of such stringent and protective measures, it necessitated the apex court to examine and ascertain whether RICA provided for such measures. The court drew on the ratio (basis for the decision) for example in Justice Alliance of South Africa v President of the Republic of South Africa and Others 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC):
‘[T]he power to extend the term of a judge goes to the core of the tenure of the judicial office, judicial independence and the separation of powers … .’ In Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) at para 83, the court analysed the task the judicial officer had to undertake and held that a judicial officer is an important part of the protection of fundamental rights. In Minister of Safety and Security v Van Der Merwe and Others 2011 (5) SA 61 (CC); 2011 (9) BCLR 961 (CC) at para 36-38, the court held that these safeguards ensure that the power to issue and execute warrants is exercised within the confines of the authorising legislation and the Constitution. There are safeguards and judicial requirements to be met by the judicial officers. Having considered such reasoning arising from the above cases, inter alia, the court held the view that the requirement of independence is a constitutional imperative.
Accordingly, the court held that RICA was unconstitutional ‘to the extent that it fails to ensure adequate safeguards for an independent judicial authorisation of interception.’ The ‘protective processes and structures’ are the ‘missing links’ for RICA to place a designated judge in the manner that is provided in the Act. Such lack of structural independence, the CC held, may lead to a reasonable lack of independence. The decision sends out a clear message of eschewing the ‘proclivity’ to become dictatorial to the legislature, but rather as an instrument or branch of the government, that ensures checks and balances.
The CC illustrates in this case the power of harmonising the need for authoritative decisions with a much broader reminder that such decisions taken must align itself more accurately within the meaning of constitutional imperatives. When considering the hierarchy of the CC and the various strands that come into play, the court in a rather articulate manner crystallised its reasoning and held that the lacuna in the statute must be rectified by Parliament in so far as empowering the Minister to designate a judge, guarding the principles of separation of powers doctrine. Such an ‘abstention’ by the apex court augurs well in a constitutional democracy, ensuring the progress of checks and balances.
Finally, it is not unusual within our legal system, when circumstances arise in respect of certain statutes, whether new or old, face constitutional challenges in our democracy. There are no better words to describe how indeterminacies in statutory interpretation are dealt with than that presented by James Madison in the Federalist Paper no 37 where he states:
‘All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.’
If judicial precedents are anything by which we measure and decide our matters as judicial officers, it is my view that the CC has created a very strong ‘stock of judicial decisions’, on which we may place reliance. Eschewing reliance on the principle of stare decisis, more specifically the standards set by the apex court and of course constitutional imperatives, may well result in being ill-founded and detrimental to a just, fair and equitable decision.
Ganasen Narayansamy JP.ED (Springfield College of Education) SP.ED (UKZN) BCom BProc LLB Conveyancing and Notarial Practice (NDP) LLM (Unisa) is an additional magistrate in Queenstown.
This article was first published in De Rebus in 2023 (Dec) DR 24.
