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THE MAGISTRATES’ ASSOCIATION OF SOUTH AFRICA
11 June
1996
CASE NO CCT/23196 -. OBJECTION TO THE CERTIFICATION OF THE
CONSTITUTIONAL TEXT IN TERMS OF PARAGRAPH 4 OF THE DIRECTION G BY THE PRESIDENT
OF THE CONSTITUTIONAL COURT IN TERMS OF RULE 15
Further to my
objection dated 17 May 1996, attached please find :
Submissions on the
application by the Constitutional Assembly and its written argument in terms of
paragraph 1 of the Directions in
terms of Rule 15
Written argument in
support of my objection in accordance with paragraph 5 of the Directions in
terms of Rule 15.
for your attention
IN THE CONSTITUTIONAL
COURT OF SOUTH AFRICA - CASE NO CCT/23/96:
RE THE APPLICATION TO
CERTIFY A NEW CONSTITUTIONAL TEXT IN TERMS OF SECTION 71 OF THE CONSTITUTION OF
THE REPUBLIC OF SOUTH AFRICA,
1993
In accordance with par 1 of the
Directions given by the President of the Constitutional Court in terns of Rule
15, the Constitutional
Assembly has been requested to submit argument to the
Constitutional Court in regard to whether the provisions of section 71 of the
Constitution of 1993 have been complied with.
In terms of the said
Directions, 25 copies of written argument directed to showing that each of the
Constitutional Principles has
been complied with, shall be lodged with the
Registrar by not later than 4 June 1996.
The Constitutional Assembly has
lodged documents purporting to comply with the said Directions. With reference
to Constitutional
Principles 11, VI and VII, insofar as they relate to the
Independence of the superior courts' judiciary, no written argument directed
to
showing that each of these Principles has been complied with. The Constitutional
Assembly has contented itself with a mere reference
to the new constitutional
text. The Constitutional Assembly has not acceded to the President's request in
terms of Rule 15.
It is submitted that the Constitutional Principles are
equally applicable to the lower courts judiciary. In this respect, the
Constitutional
Assembly makes no mention at all in its "written
argument".
It is submitted that, in terms of Rule 15 [1], read with
section 71[1] [b] of the Constitution of 1993, the formal request by the
Constitutional Assembly to the Constitutional Court to perform its functions.
In terms of section 7 1[2] of the Constitution of
1993 is brought by way of
application [cf the heading of the [Directions given.]
In the absence of even
a reference to the lower courts’ judiciary and, moreover, any argument in
general terms which purports
to comply with par 1 of the Directions, it is
submitted that the basic requirements for application proceedings have not been
met.
It is contended that the applicant, the Constitutional Assembly,
bears the burden of proof on the issue and without reasons substantiating
the
application having been put forward, a case for certification cannot be based on
responses [if any] to the argument submitted
in support of the
objection.
I request that consideration be given to inviting the
Constitutional Assembly to reconsider its position and that if it should elect
to elaborate, an opportunity be granted to objectors to do likewise.
In
the event that these submissions fail and no extension is granted, I hereby
attach my written argument in accordance with par 5
of the Directions.
In
conclusion I wish to state that I am a member of the Magistrates Association of
South Africa, which has lodged a similar objection.
Should it, in terms of par
7[c) of the Directions, be authorised to address oral argument to the
Constitutional Court at the public
hearing, I will abide by whatever ruling is
given in terms thereof.
IN THE CONSTITUTIONAL COURT OF SOUTH
AFRICA - CASE NO CCT/23196 WRITTEN ARGUMENT ON THE OBJECTION TO THE
CERTIFICATION OF THE NEW
CONSTITUTIONAL
TEXT
INTRODUCTION
The constitutional principles are
"value" oriented and so also are the fundamental rights in the new
constitutional text. In order
to pass certification, the new text, read in its
entire context, will have to reflect [i.e. comply with] the values which
underlie
the constitutional principles. [see Van Wyk et al eds "Rights and
Constitutionalism" - The New South African Legal Order, Juta and
Co, Ltd. 1994
at 633 - 6371. "Comply," according to The Readers Digest Oxford Complete Word
Finder, 1993 means : "act in accordance
[with a wish, command
etc."
"Compliance" implies that an act [i.e. certification] has been
performed for the reason that [as in terms of section 71[2] of the
interim,
Constitution] section 71[21 requires it, rather than that the act has been
performed in "appropriate" circumstances, i.e.
that it merely conforms with the
reason. [See A Fagan "In Defence of the Obvious - Ordinary Meaning and The
Identification of Constitutional
Rules" SAJHR [1995] 545 at 5581]. The point
here is, that certification is permissible only with reference to the
constitutional
principles and nothing else, more or less. [cf Valente v The
Queen 24 DLR [4th] 161 at 175 in which Le Dain J applied an "appropriate"
test].
It is submitted that, "complies with" in section 71[21 means precisely what Le
Dain J implies it does not, viz certification
can take place only if the
particular constitutional formula in the new text guarantees the essential
conditions of “judicial
independence”. The essence "of the
security afforded by the essential conditions of judicial independence" is in
Constitutional
principles: - the new text should articulate them [see par II [l
]I below). Only in this sense can there be "compliance" and attendant
certification be effected.
INTERPRETATIVE APPROACH TO THE
CERTIFICATION EXERCISE
It is important to bear in mind that though
the constitutional principles are, for present purposes immutable , once
certification
takes place, this will no longer be the case: the new text will
constitute the composite point of departure for all purposes.
The new text
will have to contain the material substance of the values contained in and
underlying the constitutional principles.
Two interpretative approaches
are suggested. The first is an overarching purposive one, because the new text
is not yet 'law' and
the values are broad concepts which include dimensions such
as separation of powers and an independent judiciary and also for the
reason
suggested in par I above,
The other, perhaps the safer one [because this
has to an extent been traversed), is via section 35 and 231 of the interim
Constitution
in the context of the historical developments preceding the
promulgation of the Magistrates Act, 1993 [and thereafter), the interim
constitution and the new text. Such an approach is constrained by the linkage
of the right to be
tried by an independent tribunal, to the actualisation of an
independent lower courts judiciary in or in terms of the new text.
[On the
relevance of legislative history see S v Makwanyane and Another 1995[61 BCLR 665
[CC] at 677G - 682 B; See A Fagan op cit
545 ff dealing with the premise:
constitutional rules are limited to what is explicit in the constitutional text;
Baloro and Others
v University of Bophuthatswana and Others 1995[81 BCLR 1018
[B] 1060 - 1065; S v Zuma and Others 1995[41 BCLR [SAI).
INVESTIGATION
INTO THE CURRENT POSITION
APPOINTMENTS
For the support
of the contention that magistrates' independence is "not already
fully
secured in accordance with these principles" [cf par - 3[b] of the
Lagos Conference
document [1962] or not “absolutely guaranteed" (cf
par 1 of the said document] "to the maximum,” see the remarks by
the
Minister of Justice during the second reading debate on the Magistrates
Amendment Bill on 29 May 1996. [The, Bill should be
law by time this matter
comes up for decision ].
See also pars A1, 2 and especially 3 of the IBA
New Delhi Conference [1982] document; par 41 of the "Singhvi Declaration"; par 3
of
General Comment of the HRC on Article 14 of the ICCPR - sv "the relevant
constitutional and legislative texts which provide for ....
the actual
independence of the judiciary from the executive branch and the
legislature,” par 6 of the ICJ The Rule of Law
And Human Rights [Part 1]
document 1959]; Chapter X par 2.49 of the Montreal Universal Declaration on The
Independence of Justice
in relation to the requirement that judicial
appointments be made "in consultation with members of the judiciary;" [contra:
“after
consultation" in the Bill]: par 2.14[b] Part III ]and par 19 Part
11 of the Banjul Seminar document and pp 132 - 133 'Terms and Conditions of
Service of Judges: A Safeguard to the Independence of the
Judiciary' by Hon. Mr
Justice B J Odoki in ICJ Report "Independence of the Judiciary and the Legal
Profession In English - Speaking
Africa".
To counter a possible
conclusion that section 174[7] read with sections 165[21 and 165[41 of the new
text adequately secure the appointment requirements for magistrates, as against
the constitutional principles, the
following considerations might hold
sway:
- the
"prejudice" contemplated in section 174[7] obviously relates only to the
appointee and does not relate to separation of powers and the interests of the
accused, litigants and
the public insofar as section 174[7]
applies.
- the
Magistrates’ Amendment Bill (Act] does not comply with section 165[41 of
tile new text. Even though this is not now in issue directly, it is at least
sufficiently relevant so as to indicate where things
are going and also to
indicate the need for the Constitutional Court to consider laying down the basic
values for incorporation in
the new text [i.e. on the assumption that the
constitutional principles will fall away.]
- what
possibly, could the rationale be for the distinction between the appointment
requirements for judges in those for and those for
magistrates ? [cf section
174 [7] , and 178 of the new text. That question needs eds to be answered
and therein the flaw will be revealed. Why was clause
100[91 [option 2] of the
Working Draft Constitution which provided that the “The appointment of
other judicial officers
must be made by an Act of Parliament ...” not
retained?
REMUNERATION AND CONDITIONS OF
SERVICE
SALARIES - these can be reduced by Act of Parliament [see s.
12[6] of Act 90 of 19931. In addition, salaries for judicial officers
are not
protected by the new text. So, even if section 12[6] of the Magistrates Act,
1993 were to be amended so as to prohibit a salary reduction, there would still
be no real protection against parliamentary interference,
unless constitutional
entrenchment of a prohibition against the reduction of salaries were effected in
the same way as for judges.
The effect of this situation, in real terms,
is that the so-called independence of the lower courts' judiciary stands on a
precarious
foundation at best. In terms of independence in the constitutional
sense, the so-called independence has no foundation at all.
Security in
financial terms, for judicial officers, is one of the pillars upon which the
notion of an independent judiciary stands.
This is recognised internationally
and is the case with judges in our country.
A further aspect which
constitutes a negation of independence for the lower courts is the salary
determination mechanisms provided
for in sections 12[1 ] and 12[3] of the
Magistrates Act, 1993. In terms hereof, the lot of judicial officers is
inextricably linked to the Public Service. There simply is no legislative
mechanism
for a separate and independent salary determination for judicial
officers in the lower courts. What explanation is there for this
unfair
discrimination between these two judicial components on a matter which is so
fundamentally vital to judicial independence.
CONDITIONS OF SERVICE -
the reference in the Regulations in terms of the Magistrates Act, 1993 to
Public Service measures and their applicability to judicial officers, together
with the determination of tariffs based on those
first determined for the
public sector are a further manifestation of the discriminatory practice
alluded to previously.
The following international instruments
illustrate that the substance of
independence for all judicial officers is
financial security:
Article Ill section 1 of the US
Constitution;
UN Basic Principles on the Independence of the Judiciary
[Annex - article 11]
Procedures for The Effective Implementation of the
UN Basic Principles
[procedures 1 and 5];
General Comment 13 of the
HRC on Article 14 of the ICCPR [par 3 independence of the judiciary...
guaranteed in practice"; par 4 -
"apply to all courts"].
"Singhvi
Declaration pars 16 [a ]18 and 41 .
ICJ: The Rule of law and Human Rights
[Part I par 1].
IBA Minimum Standards of Judicial Independence (Part A
pars 1 (b), 2, 14 and 15].
Lusaka Conference (contribution by Boyce P
Wanda at p 71 - "Safeguards for judicial independence, including provisions for
the "rights"
of judges, must be made part of our constitutions", and at p 76
under "Remuneration,” Conclusion and Recommendation of the
Lusaka Seminar
[Part 11 par 331].
Banjul Seminar [pl20]; p 138 Montreal Universal
Declaration [Part V par 2. 19 [a].
See also CRM Dlamini “Human
Rights in Africa - Which way South Africa?” [p38] where he states
“”There
are four possible attitudes towards judicial independence in
Africa, namely : [1] a complete disregard of the doctrine of separation
of
powers as a Western import unsuited to developing countries; [ii] an official
commitment to judicial independence unsupported
by adequate legal guarantees;
[iii] a comprehensive set of legal safeguards occasionally violated by
interference from the executive
in politically sensitive issues; and [iv]
effective institutionalised judicial independence. Whereas the first three
categories
reflect the position of different African governments, it is doubtful
whether the fourth category exists anywhere in Africa. Most
African governments
fall within the third category.”
With reference to the "delinking"
process referred to at pp 18-20 of the Minister' parliamentary address, if there
is no express constitutional
injunction or safeguard in respect of magistrates
salaries etc, the "building of independence” could be stymied. With
respect,
the Ministers best intentions do not provide any guarantee in the long
term. His remarks, in fact, are an admission that his objectives
are not
programmed by any new constitutional text injunctions. If the were, the remarks
would have followed a different line. [See
generally J Dugar "International
Human Rights" in Rights and Constitutionalism in Van Wyk et al op cit 171 -
195].
COMMENT
Even though salaries etc of magistrates are in fact
determined and establish by law, their financial security is dictated by public
sector circumstances, such as bargaining chamber negotiations, strikes etc
Magistrates do not fit into that arrangement and do not
enjoy labour relations
protection). Crises in the public sector, [labour, political or financial)
might so dominate that the security
judicial salaries and service benefits are
placed at risk. Objective perceptions and reality would not allow the
conclusion that
judicial independence is being potentially undermined or
indirectly being interfered with in such circumstances. The collective
independence of Magistrates viewed from their objective
relationship with
the executive [in the sense alluded to in Valente [supra] at 169 - 173 would
not survive such crises. For these
reasons it would be better safeguarded by
way of a written constitution.
CONCLUSION
Other aspects relating
to independence will not be dwelt on, since the same reasoning
as above
applies to them overall.
Since the independence of the lower courts'
judiciary is in a process of evolution, it would seem that the most effective
way of achieving
that end would be for the new constitutional text to specify
the broad basic principles by which that end should be reached.
The
reluctance expressed by Le Dain J in Valente (supra at 176 is distinguishable
in
the present case for the following reasons -
a] the amendment of
the "judicature provisions of the Constitution" are in issue ‑hence the
certification exercise [provided
they do not comply with the constitutional
principles].
b] given the past position of magistrates and their current
position, the adoption of uniform standard provisions, in the new text,
relating
to the independence of the entire judiciary, will demonstrate to all that the
bridge has been crossed [and burned!].
c] the various international
instruments strongly recommend otherwise.
d] the new power and
responsibility given to the courts by the Bill of Rights [as reflected in
Constitutional Principle II ] demands
a higher standard of or safeguard for
judicial independence.
e] the public perception and reality of judicial
independence will be enhanced if the new text dictates the terms [and it will
speed
up the evolution process].
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