Judicial dissent in times of constitutional crisis Quarter 3 2021

By HELEN TAYLOR, Published in The Law/Opinion

When constitutional democracy is under strain, how should we view disagreement among judges in a court of (supposed) last resort?

rgad

The Constitutional Court has been thrust centre-stage during this winter of discontent in South Africa. Within the space of a couple of days, the Court handed down judgment in two cases that were freighted with political significance. But if these two political hot potatoes that landed in the lap of our apex court made the judges shift uneasily in their seats, this was not apparent at the live broadcasts of judgment being handed down in each matter.

First, on Tuesday 29 June 2021, it was Acting Deputy Chief Justice Sisi Khampepe who read – with unflinching focus and calm command – the Court's reasons for its punitive order sentencing former President Zuma to 15 months' imprisonment. This was for Zuma's contempt of its earlier order directing him to comply with the summonses and directives issued by the Zondo Commission.

Then, on Thursday 1 July 2021, it was Justice Chris Jafta who delivered – in his characteristically temperate tones – the Court's withering critique of Public Protector Busisiwe Mkhwebane's disregard for both the facts and the law in her findings and remedial action against President Cyril Ramaphosa in relation to CR17 campaign donations.

The outcome of each case is of undeniable political consequence, adding to a string of legal losses that has landed the former President in prison and the incumbent Public Protector perilously close to impeachment. Taken together, the two judgments shift the fault lines of power in our fragile democracy.

On both occasions, extensive portions of the Court's judgment were read out, rather than a summary as is the usual practice. Yet, unlike the judicial spectacle of unanimity with which Chief Justice Mogoeng Mogoeng brought down the 'sharp and mighty sword … to chop the ugly head of impunity off its stiffened neck' in the Nkandla case (para 1), the Court was split in both of its recent decisions.

While the Court was unanimous in finding Zuma guilty of contempt of its orders, a partial dissent written by Justice Leona Theron (with Justice Jafta concurring) parted ways with the majority on the question of sanction. And in the campaign donations case, Chief Justice Mogoeng found himself alone in finding merit in the Public Protector's appeal.

These minority judgments are now being used to shore up support for spurious challenges to the finality of the Court's judgments. Zuma applied to the Court for the rescission of its 'erroneous' and 'unconstitutional' judgment, and his arguments were entertained in a hearing on 12 July 2021. On 23 July 2021, Mkhwebane followed suit with a rescission application of her own.

This calls into question the status of minority judgments in a court of last resort. The Court's answer to these rescission applications will not only influence the future practice of judicial dissent, it will also have profound implications for the Court's authority and the rule of law in South Africa.

Wielding dissents to undermine judicial authority

Zuma has long questioned the logic of dissenting judgments, most memorably in an interview with The Star in February 2012:

'How could you say that judgment is absolutely correct when the judges themselves have different views about it? … There are dissenting judgments. You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?'

But now Zuma is not just wielding a dissent to criticise the majority's reasoning; he is using a minority judgment to mount a more fundamental challenge to the authority of the Court's ruling against him.

The rescission application claims that 'the key sting of the minority judgment' was 'the unprecedented announcement that the Constitutional Court had acted unconstitutionally and therefore irrationally or has exceeded its judicial authority and mandate' (para 95). Importantly, this does not merely characterise the minority judgment as having disagreed with the majority, but as having pronounced on the constitutionality of the majority judgment itself.

This is a legal sleight of hand. Of course, a dissent often arises from disagreement between the judges about what the Constitution requires in a particular case, but only the argument that garners majority support authoritatively answers that question. This simple but incontrovertible fact means that even the judges in the minority – notwithstanding their disagreement – would now have to recognise that the contempt case against Zuma was authoritatively and finally settled by the majority judgment.

But, in keeping with his strategy of litigating by letters, Zuma's distortion of the Court's decision appears to be aimed primarily at influencing the court of public opinion. As the guardian and final arbiter of the Constitution, the Court's legitimacy depends on public confidence that its rulings do, in fact, vindicate the Constitution. By contending that the majority judgment is 'unconstitutional', Zuma casts the Court as a threat to the Constitution it is tasked with protecting and, by implication, to his human rights as a 'victim' of the Court's deviance.

This is why the rescission application constitutes a continuing – and indeed more radical – assault on the Court's authority and the rule of law. And here's the rub: Zuma seeks to portray the dissent as having split the Court in an internecine power struggle that renders the authority and finality of all its judgments open to contestation.

Questioning the value of dissenting judgments

Should South Africans lament the fact that the Constitutional Court did not speak with one voice when sanctioning Zuma for his contempt of court? While the practice of dissenting judgments is a familiar feature of legal systems influenced by the common law, there are diverging opinions about when and why judges should dissent – particularly in a court of last resort.

Undoubtedly, a unanimous judgment can be a compelling way for the Court to assert its authority in politically divisive cases. In the Treatment Action Campaign case, for example, the unanimous judgment delivered in the name of 'The Court' gave an unequivocal message of what justice demands in the face of a catastrophic political climate of AIDS denialism. Unanimity took another powerful form in the Makwanyane case, with all eleven judges writing individually to express their support for striking down the death penalty.

But there are also reasons to value dissent, even when – and perhaps especially when – one agrees with the majority judgment. This is because transparent and reasoned disagreement among judges is a powerful demonstration that the Court is independent and accountable. These two virtues are especially important as our judiciary is currently under fire from both sides: judicial independence is under watch as claims of judicial capture and bias are raised to discredit court decisions more widely; yet judicial accountability is also cause for concern as the integrity of the JSC appointments and disciplinary processes have come up short.

Dissent as a vital sign of judicial independence

First, dissent is a vital sign that judicial independence is alive – and kicking, as it turned out in the Zuma contempt and campaign donations cases.

Discussions about judicial independence often focus on the structural or formal safeguards that protect the independence of the judiciary as an institution (such as financial autonomy) or the independence of judges as individuals (such as security of tenure). These safeguards are essential, of course, but when the strategy of state capture has been to hollow out the structures of our constitutional democracy, we should also be attentive to the substance of our democratic practice – in this case, judicial independence as a democratic norm that is respected and fostered.

The practice of dissenting judgments, which flows from the court's inherent power to regulate its own processes, embeds judicial independence as a norm to be cultivated in the daily, concrete task of judging. A dissent bears out the existence of disagreement that is only possible where there is independent-mindedness on the bench.

Thus, irrespective of which opinion in the Zuma contempt case and the campaign donations case one considers to be 'correct', the accommodation of diverging views should be valued as an indication of judicial independence. The split judgment reveals that there was reasoned disagreement, and each judge had to apply their mind to the opposing arguments before independently deciding which one would receive their concurrence.

The point can be put more strongly. The judicial oath to apply the law 'impartially and without fear, favour or prejudice' arguably requires that judges be allowed to dissent. This is not to diminish the value of judicial deliberation aimed at reaching consensus, but rather to make the point that forcing consensus would ignore the inextricable link between a judge's freedom to dissent and their constitutional duty to apply the law impartially, as a member of an independent judiciary.

Dissent as a mechanism for judicial accountability

Second, the practice of dissenting judgments serves the valuable purpose of promoting accountability by ensuring that judges are answerable for their decisions.

The Constitutional Court, like other apex courts around the world, settles disagreement between judges through majority decision-making. This is not simply a hand-raising exercise; rather, judicial deliberation is a reason-giving practice. Judges are not only entitled – as an exercise of judicial independence – to voice their own opinion they are also obliged to do so, and to support their view with reasons.

However, these deliberations are held in private to enable the free and frank exchange of views among judges. The publication of dissenting judgments is thus an important counter-balance to the secrecy of judicial deliberations, making public not merely the existence of disagreement, but also the reasons for it.

The transparency of this reasoned disagreement does not undermine the authority of the Court. On the contrary, a dissenting judgment forces engagement with opposing views and, by inviting refutation, shows why one argument commanded the majority. This does not necessarily mean we might always think the majority got it right, but having to justify its decision with reference to reasons is an important form of accountability for judicial power.

Reclaiming judicial dissent as an antidote to divisive political rhetoric

But does all this hold true in troubled times, when majority decisions are denounced as 'angry and emotional' and dissents are distorted for political gain?

My answer is yes. Transparent and reasoned disagreement is the best antidote to the kind of noxious discourse that seeks to undermine public confidence in the Constitutional Court as the guardian of our democracy. But there is an important caveat here. We should welcome robust judicial debate, but any points of disagreement should be spelled out through reasoned argument that does not jeopardise collegiality or public confidence in the judiciary.

One (in)famous dissenter was Justice Antonin Scalia, whose judgments entertain law students with an endless supply of quotable put-downs. In Obergefell v Hodges, for example, he claimed he would 'hide [his] head in a bag' if forced to join the majority because it had descended from disciplined reasoning to 'the mystical aphorisms of the fortune cookie'. While it may be hard to suppress a laugh when reading this, it is not clear how these jibes advance reasoned debate and, indeed, they quickly lose their charm when one considers that equal protection of same-sex marriage was at stake in the US Supreme Court's narrow 5-4 decision in that case.

Our Constitutional Court has, for the most part, been beyond reproach in its practice of respectful dissent. But the need for judicial discipline is heightened where the Court finds itself at the centre of divisive political cases where its own words may be used against it by a litigant on the losing side.

And this is the sting in the tail of this defence of dissents.

A sting in the tail

In the Zuma contempt case, the minority advanced strong reasoning, but regrettably also resorted to rhetoric that has provided a foothold for discrediting the Court. Most troubling is the accusation that the majority created law that is 'not just bad, it is unconstitutional' (para 191). It is one thing for an opportunistic litigant to recast disagreement as a pronouncement of unconstitutionality; it is quite another for a judicial dissent to adopt such misleading language and its rebuking tone.

Unsurprisingly, the minority's valuable insights have been overshadowed by selective soundbites more likely to trend on Twitter than persuade in legal argument.

In the campaign donations case, Chief Justice Mogoeng distanced himself from the majority in a way that ironically plays into the very political discourse he enjoined the majority to eschew. He took issue with the majority's 'magnification of [the Public Protector's] errors that courts should, as a way of distinguishing themselves from the media, commentators or analysts, the general public or the so called court of public opinion, be deliberate and intentional about steering clear of. After all, that is what fidelity to our oath of office demands of us, all the time' (para 203). By invoking the judicial oath in support of his sympathetic stance towards the Public Protector (and not for the first time when dissenting in her defence, it should be noted), the Chief Justice has fed a political narrative that the judges are biased along factional lines.

To paraphrase Lord Denning, judges should neither fear nor resent criticism – whether from colleagues on the bench or from members of the public. But disagreement on a court should be voiced as reasoned disagreement if it is to exemplify judicial independence and accountability.

Notwithstanding the occasional slips in judicial register in its two recent dissents, the Court should offer no apology for its split judgments when it faces claims that the majority in each case made a 'rescindable error'. But how it responds to these claims will matter.

This is what hangs in the balance as the judges deliberate Zuma's rescission application: Will the Court affirm both the value of the dissent and the finality of the majority decision? Or will the judges take the bait dangled before them to stubbornly rehash the same debate that previously divided them, and so fall prey to the attack on the Court's authority?

Somewhat paradoxically then, if the virtues of judicial dissent are to be fully vindicated, the Court must now affirm in unanimous voice that it has settled the law – and settled it finally.

Taylor is a Researcher, University of Johannesburg, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). (This is an extended version of an article originally published in The Conversation on 16 July 2021 under the title 'South Africa's Constitutional Court: the case for judicial dissent, and the caveats'.)

Helen Taylor clerked at the Constitutional Court of South Africa and previously worked as a legal researcher at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, Including Organs of State. – Ed.