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South Africa (SA) is a state governed by the supremacy of the Constitution, in particular, s 2 of the Constitution dictates that: ‘This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. With this being said, the very same Constitution professes that ‘courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice’ (s 165(2)). In addition, ‘[n]o person or organ of state may interfere with the functioning of the courts’ (s 165(3)). This article seeks to investigate whether or not the supremacy of the Constitution is respected and adhered to by judicial officers when performing their constitutionally bestowed duties, in particular, focus will be given to the case of Minister of Police v Vowana and Another 2019 (4) SA 297 (ECM).

Background

The first respondent was a magistrate, presiding in the Herschel Magistrate’s Court. However, when the matter came before the Eastern Cape Local Division of the High Court in Mthatha, the court was informed before the date of hearing that, the first respondent had passed on. The second respondent is an attorney in private practice.

It is necessary to provide the background which led to the trial in the court a quo. An elderly woman was raped and murdered in her shack at Silindeni Administrative Area, Sterkspruit and as a result, the community took the law into its own hands, by burning down the home of a person suspected of having committed the crime. The police managed to arrest six people who were allegedly involved in the arson and mob justice. A joint trial for the accused followed, wherein the second respondent was their attorney of record.

During the trial in November 2012, evidence was given by the four plaintiffs and one witness for the Minister of Police. The magistrate reserved his judgment. On 26 November 2012 the magistrate prepared a draft judgment, which was four pages in length. The unsigned draft judgment was sent to the second respondent per facsimile on 27 November 2012. Soon after receiving the judgment, the magistrate and the second respondent discussed telephonically that the second respondent would ‘redraft’ the judgment. It must be said that the Minister of Police’s attorney of record was not informed of the involvement of the second respondent in the ‘redrafting’ of the judgment.

The second respondent’s attorney managed to ‘redraft’ the judgment, which was ten pages in length, with significant amendments and additions effected to the draft, and this ‘redraft’ was considered the ‘final, official judgment’ according to a statement that was made by the magistrate to the police. On 4 December 2012, the magistrate appended his signature to the judgment and sent it per facsimile to the respondent, while the minister’s attorney collected a copy of the judgment in the court file from the clerk of the court.

At para 8 the court held: ‘It appears that during April 2013 the second respondent enforced payment of the damages and costs awarded to the plaintiff as these had not been defrayed until then. It is at this stage that it came to the attention of the Minister’s employees that there had been a gross irregularity or misconduct in the writing of the judgment. A criminal case on a charge of corruption was opened against the magistrate by the police in Sterkspruit’.

Struck the matter off the roll

A point in limine was raised on behalf of the respondents, who suggested that ‘there had been an unreasonable delay in the launch of the application by the minister’. Their argument relied on time and not merits. The judgment was handed down during November 2012 and the review application was launched only on 1 April 2014. In addition to this, the respondents took the view that the court ‘was prevailed upon to dismiss the application on this point without a consideration of the merits’.

A rebuttal by the minister’s counsel was led, where they argued correctly that there was no explanation for the 11-month delay. In their concession, they correctly persuaded the court that ‘the misconduct had been so egregious and unlawful that the court ought to condone the delay so as to deal with the misconduct’.

The High Court had to decide whether or not to condone the late application. In doing so, the court relied on the case of Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC), 2008 (4) BCLR 442 (CC) at para 22, where the Constitutional Court (CC) held: ‘An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay’ (para 11). Furthermore, the court held that ‘the delay cannot be “evaluated in a vacuum”. It is necessary that all the relevant factors be considered and a determination be made whether or not there are sound reasons for overlooking the delay’. The High Court had no difficulty in condoning the late application, on the basis that ‘[t]he misconduct is a stain on the judiciary which requires that the court determine the merits. It is of singular importance for the integrity of the judiciary that the merits of the review be considered’.

Merits of the case

In De Lange v Smuts NO and Others 1998 (3) SA 785 (CC), Ackermann J referred to the views of the Canadian Supreme Court in case of The Queen in Right of Canada v Beauregard (1986) 30 DLR (4th) 481 (SCC), R v Valente (1985) 24 DLR (4th) 161 (SCC) and R v Genereux (1992) 88 DLR (4th) 110 (SCC), on the question of what constitutes an independent and impartial court, describing them as being ‘instructive’. In answering this question, the court held that: ‘In this context, he mentioned the following summary of the essence of judicial independence given by Dickson CJC in Beauregard’s case:

“Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual Judges to hear and decide the cases that come before them: No outsider – be it government, pressure group, individual, or even another Judge – should interfere in fact, or attempt to interfere, with the way in which a Judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence”. This requires judicial officers to act independently and impartially in dealing with cases that come before them, and at institutional level it requires structures to protect courts and judicial officers against external interference.’

It is common cause that ‘[j]ustice must not merely be done but must also be seen to be done’. In determining whether this notion was complied with, the High Court relied on the case of R v Genereux. The test applied in this case is ‘whether the court or tribunal from the objective standpoint of a reasonable and informed person, will be perceived as enjoying the essential conditions of independence’. The reason for such determination is well explained in Canadian jurisprudence, in the case of R v Valente v The Queen where Le Dain J held that: ‘Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception’.

The CC had no trouble in setting aside a judgment prepared by a judicial officer who had allowed external influences to interfere with his independence. The case of Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd 2011 (1) SA 267 (CC), concerned itself with a judge who had reproduced the heads of argument of counsel for the respondents, the reproduction had an addition of 32 lines. It followed that the very same heads, were recited in the judgment, in adjudication of this matter, the court held that: ‘While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own words: The true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it’.

In the case of Calligeris NO and Another v Parker NO Another (WCC) (unreported case no 7937/2017, 22-3-2018) (Meer J) the court held: ‘An award by an arbitrator was a word-for-word regurgitation of the claimant’s heads of argument. It did not contain any independent consideration or assessment of the defendant’s argument and defence which were presented to the arbitrator both orally and in writing’. In resolving these injustices, the court held that ‘[t]he manner in which the arbitrator abrogated his duty to write his own award, and his failure to address the trustees’ arguments and defences, prevented a fair trial of the issues. In replicating the heads of argument as his award, the arbitrator did not exercise his own judgment in deciding the issues’.

Going back to the Vowana case, the High Court highlighted that a comparison of the draft and the judgment indicates that the judgment was predominantly in the second respondent’s words. This suggests that the plaintiff had lost the matter even before they had approached the court. Even though their right to access to courts was not affected, they had lost their matter before counsel could make his submissions. The whole ideal, behind an adversarial system is to ensure that the eyes of the presiding officer are not blinded by the dust produced by the litigants, during the course of legal proceedings.

Conclusion

There is no need to draft comprehensive legislation, which imposes harsh sanctions on presiding officers, who neglect their functions. What we really need are judicial officers who will have to take unilateral decisions to safeguard the Constitution, to administer justice impartially, but most importantly to assume the bench not because there is a vacant post, but rather because they believe in the rule of law. It can be said that some lawyers fail their clients, be it in good or bad faith. However, the same should never be thought or considered for presiding officers. The inherent consequence of poor administration of justice is that citizens will take the law into their own hands, with a valid reason to do so.

Sihlulelwe Reward Nxumalo LLB (NMU) is a graduate from Vanderbijlpark.

This article was first published in De Rebus in 2021 (March) DR 14.