May 10 2012 at 11:32

Strange how the supposedly random allocation of cases shapes a judge’s public reputation. I’m thinking here in particular of Judge Mahomed Navsa of the Supreme Court of Appeal, but there are others in a similar position.

After sitting in several high-profile controversial cases and writing the judgment in those cases, Judge Navsa has taken considerable flak over the past few years.

Among the decisions he has written – with the unanimous agreement of the four appeal court colleagues who heard the cases with him – was the judgment on whether the decision to drop corruption charges against President Jacob Zuma could be revisited by the courts.

Another examined whether the appointment by Zuma of Menzi Simelane as national director of public prosecutions was constitutional.

In both, his theme was that no one was above the law and that even the head of government had to act constitutionally.

Typical of Judge Navsa’s writing in these decisions is the following: “No one is above the law and everyone is subject to the constitution and the law.

“The legislative and executive arms of government are bound by legal prescripts.

“Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals (who) occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure.

“To ensure a functional, accountable constitutional democracy the drafters of our constitution placed limits on the exercise of power. Institutions and office-bearers must work within the law and must be accountable.

“Put simply, ours is a government of laws and not of men or women.”

These are important observations, and ones the public should agree with wholeheartedly; if it were otherwise we would all have a far tougher life with no one, not even the courts, ready to call the government to account when it overstepped the mark and acted unlawfully. But Judge Navsa and his colleagues do not always find themselves in conflict with the government.

This happens only when the executive and its bureaucracy are found to have acted outside the constitution. Sometimes – at the end of the appeal court’s most recent term, for example – the court not only agrees with the approach of the government but compliments it on work well done. You may find this difficult to believe, since the government has been trying to create a sense that the courts are at war with the elected representatives of the people. But it happened most recently in a pair of judgments delivered in late March.

The two decisions concerned government arrangements to ensure that the fishing industry was conducted in a way that achieved two main aims: first, sustainability, with the resources off our coasts being managed in a way that ensured they were not overfished; and second, the transformation of the industry itself. In the two cases, companies involved in the fishing industry challenged aspects of government policy.

One issue was the fact that after fishing permits were granted parties had to inform the government of any changes to the company’s structure and ownership affecting the level of transformation.

The companies complained about these conditions and said they were vague, illogical and should be set aside. One of these companies had restructured, bringing in a new major shareholder from the UK and significantly reducing black shareholding.

At the time the permit was granted, it was 59.35 percent. Depending on whose version you accepted, it was 19.364 percent or 21.59 percent after restructuring.

“On either basis the effect on transformation is stark,” said the court. The companies involved claimed that they had gone to court to ensure “responsible and progressive transformation”, noted the court, but this was “belied by their actions” in making this deal. In the end the court not only found the policy lawful and reasonable, but went further, complimenting the department for the way it carried out its work in achieving these two aims.

Here’s a key passage from the decision: “In our constitutional order courts have fulfilled their constitutional duty when the legislature or members of the executive transgressed the bounds of the power vested in them and have made the necessary orders.

“In instances such as the present, when members of the executive fulfil their constitutional duties and meet the constitutional transformation imperative in impressive fashion, courts should say so.”

And the author of this praise? Writing for a unanimous court, none other than that allegedly fierce enemy of the government, Judge Navsa.


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