15 August 2002
INTRODUCTION
At the same time as other countries, such as the former Yugoslavia, were imploding, the people of South Africa turned their backs once and for all time on apartheid, an offshoot of colonialism that had kept them apart and made them enemies of one another for over four decades. We chose, instead of a racial conflagration of unimaginable proportions that had been predicted by many, the long, protracted journey to a negotiated settlement.
The subsequent enactment of the interim Constitution in 1993 and the final Constitution in 1996 ushered in a new South African constitutional order. For the first time in its history, South Africa's citizens have their rights guaranteed in a Bill of Rights, the cornerstone of the Constitution. The struggle for human rights formed the backbone of the struggle against apartheid. Although the human rights (as reflected in both Constitutions) are modelled on internationally accepted human rights instruments, strong emphasis is rightly and rightfully placed on erstwhile marginalized groups. The 1996 Constitution focuses on individual rights, but it must be reconciled with the underlying ethos that is predicated on the foundational values of democracy, political pluralism, human dignity, the promotion and protection of the basic human rights and freedoms of all, equality, non-racialism, non-sexism, as well as on concepts such as one undivided South Africa and national unity.
For the first time in the history of our country we eschewed the doctrine of parliamentary sovereignty that had in past been used to justify all manner of human rights violations, and, in its stead, established a political order that is predicated upon constitutionalism. We buttressed this order with the awesome power of judicial review which enables our courts to grapple with questions of constitutionality relating to law and conduct.
At the pinnacle of the hierarchy of our judiciary sits the Constitutional Court, which was established in 1994 in terms of the interim Constitution. In terms of the 1996 Constitution the judges of Court continue to hold office. The judgments of the Court are based on the Constitution, which is the supreme law of the land. The judgments guarantee the basic rights and freedoms of all persons. They are binding on all organs of government, including Parliament, the Presidency, the police force, the army, the public service and all courts. This means that the Court has the power to declare with finality an Act of Parliament null and void if it conflicts with the Constitution and to control executive action in the same way.
The Constitutional Court, in line with the advent of a supreme Constitution, has moved our jurisprudence from a formal to a substantive vision of law. The foundational values expressly incorporated in the Constitution and, in particular, in the Bill of Rights demand a "substantive", as opposed to a merely "formal" engagement by the Court. In its short existence, the Constitutional Court has itself made it clear that it will not shrink from the difficult questions presented by the open texture of the Constitution, and will not resort to head counting as a reliable means of substantive reasoning. The Court's stance is most famously discernible in S v Makwanyane 1995 (3) SA 391 (CC) where Justice Chaskalson stated:
If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution . . . The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.
After all, the whole point of a Bill of Rights is to put certain issues beyond the reach of majoritarian influence, and to establish them as legal principles to be applied by the courts. The Court's commitment to guaranteeing the rights of individuals prevents it from relying on public opinion when adjudicating, and ensures that it avoids emotional reasoning. This position is of course most prevalent in those cases where individual rights are threatened by laws or policies which have large public support.
It is now appropriate to consider the manner in which the Court has dealt with controversial issues which are often at the centre of public debate in South Africa:
HIV/AIDS
HIV/AIDS is a matter over which society at large has strong opinions.
The recent dispute between a leading AIDS activist group, the Treatment Action Campaign (TAC) and the Minister of Health over the Department of Health's apparent reluctance to distribute Nevirapine to all HIV positive pregnant women has focused attention on the judiciary's role in transforming our society.
TAC won a lawsuit in the High Court with the Court finding that the government had a duty to provide Nevirapine to pregnant women who were HIV-positive, gave birth in state institutions, where it was medically indicated, and where there was capacity to do so. (Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T). The court ruled against the Department of Health's system of providing the medication only at certain research sites, and ordered that the government present an outline of how it planned to extend provision of the medication to its birthing facilities countrywide. The ruling gave rise to controversy on the separation of powers doctrine in socio-economic rights issues.
Criticism of the High Court decision questioned the wisdom of the Court's ruling interfering with the power relations between the executive and the judiciary. It was argued that government policy was of a political nature, hence governments made policy, not judges. The remedy for unpopular government policy should rightfully be political, not legal. And further, that if judges assumed executive powers then the essence of democracy would be eroded and the core values that underlie the Constitution be threatened. This criticism was particularly addressed at the High Court not only pronouncing on the unreasonableness of the government's Nevirapine policy but ordering it to provide Nevirapine.
On the other hand, it was pointed out that democratic legal systems recognized the rule of law and judicial independence as integral to good governance and individual freedom. Central to this recognition was the power of the courts to review the exercise of public power. While the nature of and the basis for judicial review might vary, common to all democracies was the recognition that courts played a central role in enforcing accountability and protecting the vulnerable against executive autocracy. With the advent of democracy and the adoption of the Constitution, however, our courts were granted even greater powers of review. Not only were all laws and policies subjected to judicial scrutiny, but the basis of judicial review was expanded to include socio-economic rights and to impose positive duties on the state to achieve their progressive realization. Such a deliberate and express expansion of judicial review made it plain that courts were not only invited but also mandated to pass judgment on social and economic policy.
The matter has recently been settled by the Constitutional Court in the government's appeal against the original High Court decision. The Constitutional Court judgment clarifies the legitimate expectations that stem from the crucial undertakings that the Constitution makes about socio-economic rights. The court draws to a great extent on established jurisprudence, especially the Grootboom judgment (Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC)). Invoking Grootboom, the court declares that section 26 of the Constitution does not "expect more of the state than is achievable within its available resources". Nevertheless, the state, "must act reasonably to provide access to the socioeconomic rights identified in sections 26 and 27 on a progressive basis". The Court further endorses its function concerning the review of public power, insisting that "where a breach of any right has taken place, including a socioeconomic right, a court is under a duty to ensure that effective relief is granted". The court addresses government's arguments about the safety, efficacy and toxicity of the drug treatment and government's capacity to provide such treatment, but finds these arguments unpersuasive. The government is ordered to "without delay" implement a comprehensive nationwide programme for the prevention of mother-to-child transmission of HIV. This includes the provision of Nevirapine at public hospitals and clinics when medically indicated.
This decision demonstrates the crucial role of the courts in maintaining the commitment to the constitutionalism that underpins the vision of a new South Africa. It has also been said that this judgment represents a new depth and maturity in our new democracy. It shows that the Constitution creates a powerful tool in the hands of civil society, to ensure that the government gives proper attention to the fundamental needs of the poor, the vulnerable and the margin!ays and lesbians have borne the brunt of social prejudice in South Africa. One manifestation of this prejudice in the legal system has been laws criminalising homosexual activities. Entrenching sexual orientation in the Constitution as an enumerated ground of non-discrimination therefore constituted a major policy change based on an altered perception of social reality.
After the transition to constitutionalism, the National Coalition for Gay and Lesbian Equality brought an application challenging various laws that criminalised sodomy in South Africa. The Coalition's application ended up in the Constitutional Court (National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC). The Court's official position as a guarantor of minority rights against majority preferences made it an obvious place for gays and lesbians to turn for support. This much was noted by Justice Ackermann when he stated that the vulnerability of gays and lesbians is "increased by the fact that they are a political minority not able on their own to use political power to secure favourable legislation for themselves. They are accordingly almost exclusively reliant on the Bill of Rights for their protection."
The Constitutional Court had the opportunity to consider the question of same-sex unions on two occasions:
In The National Coalition for the Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) the applicants sought an order declaring section 25 of the Aliens Control Act 96 of 1991 to be inconsistent with the provisions of the Constitution, and therefore invalid in that it confers benefits exclusively on spouses thereby discriminating against same sex life partners.
The Court found that section 25 unfairly discriminated on the grounds of sexual orientation and marital status, and read additional words into the section, thereby extending the benefits to partners in a permanent same-sex partnership.
The court made the point that the remedy the Court granted was not final. The legislature was able, within constitutional limits, to amend the remedy, whether by enacting equal benefits, further extending benefits, reducing them, amending them, "fine-tuning" them or abolishing them.
The Court furthermore stated that reasonable legislative and administrative steps might be taken to prevent abuse of the section. Whoever in the administration of the Act was called upon to decide whether a same-sex life partnership was permanent would have to do so on the totality of the facts presented. Such person would be entitled to take all reasonable steps, by way of regulations or otherwise, to ensure that full information concerning the permanent nature of any same-sex life partnership was disclosed.
Without purporting to provide an exhaustive list, the Court stated that the criteria for determining the existence of a permanent partnership would include the following: the respective ages of the partners; the duration of the partnership; whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership; how the partnership was viewed by relations and friends; whether they shared a common abode; etc (several other criteria were mentioned.) None of these considerations was indispensable for establishing a permanent partnership.
In Satchwell v The President of the Republic of South Africa (Case CCT 45/01) Justice Madala confirmed the judgment of the High Court which ruled in favour of Johannesburg High Court Judge Cathy Satchwell in her application to have sections of the Judges Remuneration and Conditions of Employment Act and regulations in respect of transport, travelling and subsistence declared unconstitutional.
The order has the effect that Judge Satchwell's partner of the past 14 years will now be entitled to two-thirds of Judge Satchwell's salary if the judge dies and can become a dependant under the Parliamentary and Provincial Medical Aid scheme. She will also be able to claim for a subsistence allowance when she accompanies Judge Satchwell on official duties.
The Court stated that in order to receive protection the parties to the partnership must have undertaken and committed themselves to reciprocal duties of support. The Constitution could not impose obligations towards partners where those partners themselves have failed to undertake such obligations.
In this regard the applicant stated that she and her partner had been involved in an intimate, committed, exclusive and permanent relationship since about 1986. Although not married (in terms of South African law they were unable to enter into a valid marriage) they lived in every respect as a married couple and were acknowledged as such by their respective families and friends.
Giving effect through legislation to the broader struggle for legal equality for gay and lesbian people in South Africa is a time-consuming process. In Satchwell v The President of the Republic of South Africa (Case CCT 45/01) Justice Madala referred to the introduction of draft legislation by the Department of Justice to extend benefits to domestic partners as a welcome step to ameliorate the position of same-sex life partners. He referred to it as an acceptance that times have changed as has society's attitude which once was hostile to the gay and lesbian community generally and frowned upon them and considered them to be deviant members of society not worthy of protection and respect under the law.
There have been a number of ad hoc legislative amendments in favour of same-sex partners which, although effective in practice, have resulted in a patchwork of laws and is one of many reasons why comprehensive law reform in this area is now being undertaken by the South African Law Commission. The work of the Commission is aided by the judgments of the courts.
THE PRESUMPTION OF INNOCENCE
Amongst the criminal procedure provisions challenged, by far the most frequently to be declared unconstitutional are the reverse onus provisions, which infringe the presumption of innocence. At the same time, while the Constitutional Court has considered the constitutionality of reverse onus clauses in a number of cases, it should be noted that the Constitutional Court has not yet considered all the provisions which may infringe the presumption of innocence. This is where the legislature has an important role to play in passing legislation to ensure that amending legislation is passed in those cases where the Constitutional Court has considered particular legislative provisions as well as to ensure that the relevant legislation is reviewed in those cases not yet considered by the Constitutional Court.
The Constitutional Court has given a number of judgements which clearly denote the scope of the presumption of innocence, guidelines on how to identify infringements of the presumption of innocence and how to determine whether or not the provisions under attack are saved by the limitation clause of the Constitution. Although the Constitutional Court has only considered particular provisions, the role of the Court in these cases goes beyond the specific provisions since the value of the judgments also lies in the guidance the Court has given for the interpretation of the Constitution in relation to provisions not yet considered by the Constitutional Court.
The test for reverse onus provisions is now well settled by decisions of the Constitutional Court, and disputes about the ambit of the category are therefore unlikely to arise in future. In S v Coetzee 1997 3 SA 527 (CC) the Constitutional Court has, for example, resisted the offence-defence (excuse) dichotomy as a basis for limiting the scope of reverse onus provisions and declared it irrelevant. The Court has also by implication rejected the "greater includes the lesser test". Consequently, a reverse onus provision cannot be saved by the argument that the legislature, by creating a special defence in respect of which the accused bears the onus, has ameliorated the hardship the accused would otherwise have suffered if it had chosen to create an absolute liability offence.
The Constitutional Court has held in a succession of judgements that the presumption of innocence requires that the prosecution bear the burden of proving all elements of a criminal charge beyond a reasonable doubt. Any provision that creates a presumption that relieves the prosecution of any part of that burden may result in a conviction of the accused despite the existence of a reasonable doubt as to his or her guilt and such a provision would therefore violate the presumption of innocence.
From decisions of the Court there is clear authority for the view that the presumption of innocence will be infringed whenever there is the possibility of a conviction despite the existence of a reasonable doubt. Although the reverse onus will always infringe the presumption of innocence, such infringement may be justifiable. In Manamela 2000 (1) SACR 414 (CC) the Court remarked that despite the frequency with which such provisions were attacked and struck down, the problems that they raised did not lend themselves to formulaic answers. There is an increasing indication of a greater readiness to rescue reverse onus provisions under the limitation clause.
Whether the drawing of a negative inference from silence infringes the right to remain silent or the presumption of innocence, still remains an open question and the Court has not yet conclusively disposed of the matter. It may be argued that an inference drawn from silence before the prosecution has discharged its duty of establishing a prima facie case will infringe the presumption of innocence. The application of the presumption of innocence to regulatory offences still has to be properly considered by the courts. However, the Constitutional Court has indicated that the regulatory nature of an offence is better considered as a factor in establishing whether a provision constitutes a justifiable limitation of the right to be presumed innocent rather than in establishing breach. It is in cases like these that the judgements of the Court are of particular importance in deciding whether or not the legislature should intervene and amend provisions which have not yet been considered by the Constitutional Court.
The Constitutional Court has been remarkably consistent in refusing to find justification for the infringement of the presumption of innocence. Once it is established that the purpose of the limitation is not discordant with the values underlying an open and democratic society based on human dignity and equality, the validity of an infringement is dependent on a determination of whether the means used in attaining the objective are reasonable and justifiable. In determining the nature and extent of the limitation the courts appear to be wary of presumptions that are overly broad in their application.
Since the Constitutional Court is required to consider the constitutionality of particular provisions in specific cases, the legislature has an important function to ensure that the law is in accordance with the Constitution. The South African Law Commission was requested to undertake an investigation into the application of the Bill of Rights to criminal procedure, criminal law, law of evidence and sentencing. The Commission completed its report in 2000 and recommended the amendment of a number of provisions of the Criminal Procedure Act which were unconstitutional. The Commission's point of departure was to identify only those sections of the Criminal Procedure Act which were either clearly unconstitutional in the light of decisions of the Constitutional Court or attracted sustainable constitutional arguments.
CONCLUSION
The judgments considered above amply demonstrate the Constitutional Court's appreciation of the difficulty that it faces when making decisions on matters involving controversial issues. The question arises whether the legislature should anticipate such issues by the timely passing of constitutionally valid legislation.
In interpreting the Constitution, Parliament and the judiciary are engaged in a symbiotic relationship, one giving effect to public opinion, the other to constitutional principles. The Constitutional Court focuses on the constitutionality of issues brought before it - by adopting a focused approach and limiting itself to the specific relief claimed by the applicant. The Court furthermore provides ample scope for the legislature to address the wider issue in question.
The legislature, on the other hand, should follow a holistic approach. Even in a developed constitutional system, the outcome of rights-based litigation cannot be predicted; nor would this be desirable. In South Africa, the uncertainty is increased by the relatively small jurisprudential base upon which guidelines for the determination of constitutionality must be developed. A conscientious effort to make laws that will reduce constitutional challenges would aspire, at best, to rectify provisions that are obviously unconstitutional when considered against the actual text of the Constitution and authoritative interpretations of the Constitutional Court.
As some of you might know, this is not the first time that the three of us have collaborated and produced books on human rights law and jurisprudence. We did this together with others on two previous occasions as well. It is our fervent collective hope that this humble effort of ours will further contribute towards the human rights discourse that is taking place in our beautiful country.
I thank you.