The lethargy of the Constitutional Court justices to engage one another

May 1st, 2020

Reflections on Jacobs and Others v S 2019 (5) BCLR 562 (CC)

By Phindile Raymond Msaule

Judges account to the nation through their reasons. This assures society that judges make defensible decisions. In his article ‘Mute Concurrence in the Appellate Division: Is Silence Golden?’ (1979) 42 THRHR 419, Justice Cameron bemoaned the fact that in the 1978 term the Appellate Division delivered a number of unanimous decisions where no judge wrote a concurring opinion. In his view, that starved the court’s jurisprudence of vigour. Whether this observation was correct is beyond the scope of this article. Besides, the Constitutional Court (CC) judges are not timid in producing concurring opinions. For example, in Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC), Sachs J wrote a judgment wherein he concurred with both the majority and the minority judgments.

The disquiet that this article seeks to traverse is the level to which the judges of the CC are prepared to engage with one another’s reasoning when there are disagreements. The fact that a judge is too timorous to express a concurring separate opinion is one thing, but engaging with a differing opinion is quite another. In relation to the former, the concurring judge may be providing an emphasis or nuance and is, therefore, at liberty not to engage with every aspect of the judgment. The fact that judges may express differing opinions is not enough. There should be ‘[a]n agreed procedure for reaching responsible decisions’ (Cameron (op cit)). This presuppose that judges who come to different conclusions or reach the same conclusions on different reasons must engage head-on with the views that expressly (even impliedly) contradict theirs.

The rationale for this is that society must be able to determine the basis of a particular decision. It is, therefore, not only unjustifiable but discourteous when a judge does not only share the conclusions of a colleague, but also differs in relation to the factual matrix of the case and fails to set out the shortcomings of their colleague’s conclusions and understanding of the factual matrix. This starves South Africa’s (SA’s) jurisprudence of rigour and vitality. Failure to engage does not bode well for SA’s jurisprudence.

This is what happened in the Jacobs case. Although a number of articles have been written about this specific case, this article will be limited to the failure by the judges to engage one another’s understanding of the factual matrix and reasoning.

In this case, the applicants had been convicted of murder on the basis of the common purpose doctrine. Although this article does not address the application of common purpose, suffice it to say that the CC was split on whether or not the application of common purpose engaged the jurisdiction of the court.

However, of concern is the manner in which the different judgments engaged each other on matters of divergence. There has not been a concerted effort to indicate why the judges did not agree on some aspects. For example, the applicants relied on Makhubela v S; Matjeke v S 2017 (12) BCLR 1510 (CC) for the proposition that the application of common purpose raised a constitutional issue and, therefore, engaged the jurisdiction of the court. Zondo DCJ (at para 132), with Theron J concurring (at para 56), relied on the passage from the Makhubela case where it was held that the application of the common purpose ‘is therefore far-reaching, and implicates the constitutional rights of freedom of the person and the right to a fair trial, including the right to be presumed innocent’. For Goliath AJ, however, the rationale for granting leave to appeal in the Makhubela case was not based on common purpose but on the fact that the applicant’s co-accused had all been granted leave to appeal and subsequently their appeals were successful. The fact that the CC in the Makhubela case relied on a non-existing proposition expounded in the quotation above (not just the passage) from S v Thebus and Another 2003 (6) SA 505 (CC) weighed heavily with Goliath AJ (at para 45). Theron J and Zondo DCJ did not deal with the issue.

For Froneman J, even if the quoted passage formed part of the ratio it was made through the lack of care. Froneman J reasons that the lack of care stems from the fact that what was asserted in the Makhubela case flew in the face of what Thebus, the authority for the proposition, says (at paras 96 – 99). Given Froneman J’s findings in relation to this (ie, that Makhubela relied on a non-existent authority), Theron J and Zondo DCJ had an obligation to deal with this matter head-on. Froneman J posits that if the authority to which a litigant relies was based on a non-existent authority and its proposition is wrong, such ‘authority’ is not good law (at para 101). What are the views of Theron J and Zondo DCJ in this regard? Failure to address this question by the latter amount to a dereliction of duty. By having failed to address this issue, the two judges have left SA’s jurisprudence in limbo. In light of the Jacobs case, Makhubela is still good law despite resting on shaky grounds.

In relation to the facts, Theron J questions Goliath AJ’s assessment of the facts. Theron J at para 68 states:

‘[Goliath AJ] repeatedly states that the High Court made certain factual findings which were confirmed by the Full Court. Unfortunately it does not set out factual findings it refers to. On my reading of the judgments of these two courts, they made contradictory findings. … The two courts had different reasons for their respective conclusions’.

The propositions by Theron J cry out for a reply. Should Goliath AJ not have pointed out the factual findings that have been confirmed by the appeal court that she referred to? It is not sufficient for Goliath AJ that the ‘incorrect findings of fact do not raise constitutional issues’ (at para 39).

Lastly, Froneman J, takes issue with Theron J’s assertion that Goliath AJ’s judgment does not accord with the record. According to him, such a judgment call cannot be made when the CC did not have full record evidence before them (at para 91 – 92). Unfortunately, Theron J and Zondo DCJ’s judgment did not reply to this.

Phindile Raymond Msaule LLB LLM (NWU) is a lecturer at the University of Limpopo in Mankweng.

This article was first published in De Rebus in 2020 (May) DR 38.