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The usage of the notion of justice has long become a concept or term within the sphere of legal systems. However, it is not that a simple ‘concept’ to be understood, without any proper justifications in the application of the law. Socrates suggested that ‘it is necessary to discover the essence of justice and injustice, and at the same time to clarify what is the source of justice and injustice’ (Ilir Qabrati ‘The Concept of Law and Justice’ (2020) 4 Prizren Social Science Journal 69).
The purpose of this article is to share the views of different judges in the pursuit of justice and of course the relevance of such decisions in our courts. The case is based on the work of Lon L Fuller’s article ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616. It is a fictitious judgment by Professor Lon Fuller that brings into play competing theories and philosophies, positivism and natural law.
The Speluncean Explorer’s Cave case
The five members of the Speluncean Society, being amateurs in cave exploration set out in early May 4299, including one Roger Whetmore. Subsequent to a sudden landslide they found themselves trapped in the cave, with rescue operations becoming difficult due to more landslides. In the meantime, it would be a while before they are rescued and they realised within ten days of starvation, they would all die. Whetmore then decided they would only survive by eating the flesh of one of them and came up with the plan to cast the dice. Unfortunately, for Whetmore, the throw went against him, and he was then killed and eaten by the remaining four explorers.
The decision of the court a quo
The four defendants were indicted for the crime of murder and were convicted and sentenced to be hanged by the Court of General Instances of the County of Stowfield. They subsequently brought a petition of error to the Supreme Court of Newgarth.
The decision of the judges of the Supreme Court of Newgarth, 4300
The court had to determine whether the four defendants were guilty of contravening the statute of Newgarth, which provided that: ‘Whoever shall willfully take the life of another shall be punished by death’ (Marius van Staden ‘The Case of the Speluncean Explorers in the South African Constitutional Court’ (2015) 36 Obiter 1 at 3).
We now traverse the competing centuries-old debate of the rule of law and of course, how different judges interpret statutes in different circumstances, briefly.
The first judgment of Chief Justice Truepenny ‘reflects the positivist school of thought’ (Michael Hurrelbrink ‘The Case of the Speluncean Explorers: Digging since 1949’ (2019) 3 Western Australian Student Law Review 71). In his opinion, ‘the law should be applied literally as it is, not how it was intended to apply’ (Hurrelbrink (op cit)). He agrees that there may be some sympathy towards the defendants, considering the ‘tragic situation’ in which they found themselves. However, he felt compelled to decide the matter from a statutory perspective since the statute makes no provision for an ‘exception’.
The second judgment of Justice Foster provides two arguments. The one being that of ‘positive law’ intentionally created by society and the ‘law of nature’ (Hurrelbrink (op cit)). The latter refers to the fact that the law arising naturally from the circumstances that gave rise to a ‘do or die’ situation (Hurrelbrink (op cit)). He reflects on the ‘purposive approach of legislation’ and holds the view that the purpose of the legislation was to deter crime and accordingly the defendants did not contravene the statute (Hurrelbrink (op cit)). His approach is to ultimately overturn the sentence.
Justice Foster went on to support his decision by giving examples as in Commonwealth v Staymore and Fehler v Neegas. He illustrates that ‘blind servitude to the law, in the absence of any purpose, becomes illogical when applied to reality’ (Hurrelbrink (op cit)). An important observation rather than a criticism is that the laws that are created are meant to serve society and not the reverse (Hurrelbrink (op cit)).
In the third judgment, Justice Tatting had difficulty in resolving the ‘conflict between his personal views and the legal views’ (Hurrelbrink (op cit)). He, therefore, questions purpose as an interpretive device and asks the question: ‘Assuming that we must interpret a statute in the light of its purpose, what are we to do when it has many purposes or when its purposes are disputed?’ His best option, due to the conflict within himself, gave rise to his withdrawal from the case.
In the fourth judgment, Justice Keen is of the view that no judge should allow personal feelings to be a part of decision making in a case. He accordingly excludes any consideration of clemency as put by Justice Truepenny and the concepts of ‘right’ and ‘wrong’ (Hurrelbrink (op cit)). There is a ‘stark positivist approach’ and he is of the view that it is not for a judge to ‘ascertain the purpose of a statute’ (Hurrelbrink (op cit)). He further does not agree with the idea of ‘judicial activism’ and accordingly upholds the death sentence imposed by the court a quo (Hurrelbrink (op cit)).
The fifth judgment by Justice Handy, displays that the problem before the court ‘is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities.’ He held the view that the best decision would be to find the defendants not guilty, as that would satisfy the public (Hurrelbrink (op cit)). In other words, he looks to the public opinion in order to make his decision.
The applicable principles in our Constitutional Courts
In South Africa, there is a tendency in the legal fraternity to engage in a display of ‘relatively strong faith in the precision, determinacy and self-revealingness of words and texts’ (Karl Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146 at 168). Klare is of the view that the statutory interpretation in South Africa is more along the lines of Chief Justice Truepenny and Justice Keen (Van Staden (op cit) at 5).
The advent of a new democracy has led us to the fountain from which statutory interpretation flows, the Constitution. Any notion of the ‘intention of the legislature’ has since been replaced by the supremacy of our Constitution, which remains the ‘magnum opus’ in our democracy.
In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC), the Constitutional Court (CC) held that ‘all statutes must be interpreted through the prism of the Bill of Rights. … The Constitution is located in a history, which involves a transition from a society based on division, injustice, and exclusion from the democratic process to one which respects the dignity of all citizens and includes all in the process of governance. As such, the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice, and fundamental human rights. This spirit of transition and transformation characterises the constitutional enterprise as a whole’ (para 21). Further, ‘[t]he Constitution also prescribes that all conduct of the state must accord with the provisions of the Bill of Rights’ (para 41).
On the issue of public opinion as proposed by Justice Handy and seen in the context of the demise of the explorers, the trajectory takes us directly to our Interim Constitution and the decision in S v Makwanyane and Another 1995 (3) SA 391 (CC). ‘The Constitutional Court was tasked with considering the constitutionality of capital punishment’ (Van Staden (op cit) at 12) and Chaskalson P made the following remarks: ‘Public opinion may have some relevance to the inquiry, but, in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour’ (para 88).
The Makwanyane case became what I would call the inauguration of a new constitutional order as the country marshalled its way into a new democracy and the right to life. Accordingly, the issue of public opinion is not something that can be completely vanquished from the corridors of the courts. Kentridge AJ himself stated that, ‘were public opinion on the question clear, it could not be entirely ignored. The accepted mores of one’s own society must have some relevance to the assessment whether a punishment is impermissibly cruel and inhuman’ (Makwanyane at para 200).
Thus, a parallel can be drawn with the views of Justice Handy and the view held by Kentridge AJ is that the judiciary should not ‘lose touch with the “common man”’ (Van Staden (op cit) at 14). ‘Justice Handy’s criticism is aimed at both Justice Keen’s literalism and Justice Foster’s natural law (and purposive) approach’ (Van Staden (op cit) at 14).
The Makwanyane case brings to a realisation that in interpreting statutes, public opinion should play a supporting role to guide various interpretations, but the Constitution remains the soul of the new democratic order in South
Africa. Though the CC had regard to public opinion, the court considered the most critical aspects of interpretation when it stated that the Constitution did not in any manner expressly provide for the death sentence but in fact enshrined the right to life in s 9 and declared the death penalty as unconstitutional (see Makwanyane at para 392).
The demands of an ever-changing society and jurisprudentia from our CC, in particular, it is doubtful that the statute would pass constitutional muster in our democracy. The great lesson is that we must know that the entire ‘government is a human affair’, and ‘that men are ruled, not by words on paper or by abstract theories, but by other men’ (Justice Handy who found the defendants not guilty).
Conclusion
We live in a democracy with a melange of socially and culturally diverse expectations. There is a constitutional duty, if not a mandate, that rests on the ‘shoulders’ of the courts to avoid straddling when approaching interpretation of statutes as it goes to the very conscience of the public domain.
It is a known fact that the wellspring from which our legislature draws its legitimacy is of course the ballot box, the electorate. It is the ultimate expression of public opinion with which the legislature is charged with ensuring that it gives effect to the aspirations and concerns of the public. Public opinion though, is very slight and has very little significance to interfere with the course of justice. It is no surprise when we hear ‘buzzwords and catch-phrases such as “reason-giving requirement,” “reasoned elaboration,” “public reason,” and “public justification,” have, along with a host of others, become major themes of the legal … lexicon’ (Mathilde Cohen ‘When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach’ (2015) 72 Washington and Lee Law Review 483).
In as much as humans are ‘connoisseurs’ of memory, equally so we become the assassins of our very own memory. To keep up with a more scientific temper, spirit of reform and excellence in the judiciary, it is important to stay alive to the reality changes that take place in our jurisprudence and of course to apply the law with a degree of warmth of tradition in upholding the values as enshrined in our Constitution. As Upendra Baxi states one must aspire and aim towards ‘certainty where uncertainty prevails, order where chaos reigns, uniformity where diversity is on rampage and consistency where inconsistency is the rule’ (Upendra Baxi ‘Demosprudence versus jurisprudence: The Indian judicial experience in the context of comparative constitutional studies’ (2014) 14 Macquarie Law Journal 3).
In my final analysis, not claiming immutability of judgment, and having regards to the process of legal observations, without trying to reshape any evidence, it is my view that the four defendants be found not guilty of murder.
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 2024 (Jan/Feb) DR 21.
