Qozeleni v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Kroon J, Froneman J
• Judgment Date: 23 June 1994
• Docket Number: 967/94
• Hearing Date: 09 June 1994
• Court: Eastern Cape Division

A Froneman J:

The Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution') became the supreme law of the land on 27 April 1994. It is binding on all legislative, executive and judicial organs of State at all levels of government (s 4(2)) and any law or act inconsistent with its provisions shall be of no force and effect to the extent of the inconsistency, unless the Constitution itself expressly or by necessary B implication provides otherwise (s 4(1)). These provisions lie at the heart of a constitutional revolution which will have a profound impact on all in this country and, in particular, on those concerned with the administration of justice. Some of the important issues concerning the practical administration of justice in both the lower and Superior Courts C under the Constitution have been raised in the present application.

The facts of the matter are uncomplicated. The issues arising from them are not. The applicant issued summons out of the Grahamstown magistrates' court against the first respondent on 22 October 1993, claiming damages arising from his alleged unlawful arrest and detention, as well as an D assault upon him, by members of the South African Police on 24 August 1993. The matter was defended and set down for trial on 13 and 16 May 1994. After the applicant's arrest and detention on 14 August 1993 by the police he was not prosecuted in court on any charges, as the public prosecutor declined to do so. On 11 May 1994 the first respondent's attorneys filed a discovery affidavit and claimed privilege with regard to the contents of the police docket which was relevant to the proceedings in E the magistrates' court. It is clear that the discovered police docket related to the earlier criminal investigation. When the civil trial started on 13 May 1994 the applicant brought an application in limine to compel disclosure of the contents of the police docket, but the application was dismissed by the magistrate. The trial was then postponed F and thereafter the applicant launched the present application for, in effect, a review of the magistrate's decision.

The magistrate dismissed the application on the basis that the applicant's reliance on s 23 of the Constitution (as giving him a right of access to the information in the docket) was misplaced because, in terms of s 241(8) G of the Constitution, the provisions of the Constitution did not apply to proceedings which immediately before the commencement of the Constitution were pending before any court of law. The applicant contends that the magistrate committed an irregularity by interpreting and applying s 241(8) in this manner, as well as by failing to adopt the procedures set out in s H 103 of the Constitution. The resolution of these issues depends on the correct interpretation of these and other sections of the Constitution. This immediately raises the fundamental question of what the proper approach to the intepretation of the Constitution should be.

There are a number of different reasons why this issue is of some I importance. They all relate, however, in one way or another, to the changes wrought by the Constitution. The first reason concerns the people who are to interpret the Constitution and the second reason concerns the effect which the Constitution as supreme law of the land has on the process of interpretation. Both can be best illustrated by having regard J to the provisions of the Constitution itself.

Froneman J

A The Constitution is perhaps unique in that it contains a section headed 'National Unity and Reconciliation' [*] which forms part of the substance of the Constitution by virtue of the provisions of s 232(4). It reads:

'This Constitution provides a historic bridge between the past of a deeply B divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex.

The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

C The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understan-ding but not vengeance, a need for reparation but not for D retaliation, a need for ubuntu but not for victimisation.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October E 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.

F Nkosi sikelel' iAfrika. God seën Suid-Afrika

Morena boloka sechaba sa heso. May God bless our country

Mudzimu fhatutshedza Afrika. Hosi katekisa Afrika.'

The Preamble to the Constitution also states that there is a need

'to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state'. G

Section 35(1) provides that, in the interpretation of the chapter dealing with fundamental rights, courts shall 'promote the values which underlie an open and democratic society based on freedom and equality'.

It has been mentioned that the first reason why it is important to H determine a proper approach to the interpretation of the Constitution concerns the people who are to interpret the Constitution. Judges presently holding office do so after having taken a new oath, inter alia, to uphold and protect the Constitution and the fundamental rights entrenched therein (s 241(7) and Schedule 3). In my view, however, it would still be prudent to take cognisance of the criticism of judicial I behaviour under the old pre-Constitution order (cf, for example, Dugard 'The Judicial Process, Positivism and Civil Liberty' (1971) 88 SALJ 181, and Human Rights and the South African Legal Order (1978); Corder Judges at Work (1984); Forsyth In Danger for their Talents (1985); Cameron 'Legal

Froneman J

A Chauvinism, Executive-mindedness and Justice - L C Steyn's Impact on South African Law' (1982) 99 SALJ 38; Van Blerk Criticism of the Courts: A Historical Examination (1987); Nicholson 'Ideology and the South African Judicial Process - Lessons from the Past' (1992) 8 SAJHR 50 and Ellman In a Time of Trouble: Law and Liberty in South Africa's State of Emergency (1992)). The role of Judges in a system of judicial review based on the B supremacy of the Constitution is bound to be controversial in any event, but the judicial history of this country makes it even more likely if due regard is not given to possible deficiencies in the past. A special responsibility rests on Judges in this regard.

The second reason for the importance of a proper approach to the C interpretation of the Constitution has to do not so much with the individuals who interpret the Constitution, but with the approach to, or method of, constitutional interpretation. On this ground, too, there has been academic criticism of the judicial approach in the recent past, although perhaps not as harshly expressed as some of the earlier attacks (cf Du Plessis and De Ville 'Bill of Rights Interpretation in the South D African Context' (1993) 4 Stellenbosch Law Review at 63, 199, 356; Dennis Davis 'Democracy - Its Influence upon the Process of Constitutional Interpretation' (1994) 10 SAJHR 103; Marcus 'Interpretating the Chapter on Fundamental Rights' (1994) 10 SAJHR 92 and Van der Vyver 'Compara-tive Law in Constitutional Litigation' (1994) 111 SALJ 19). Various approaches have E been suggested, with reliance on comparative law of countries that have also adopted constitutions that reign supreme over other law. These formulations are usually of a generalised nature which do not easily translate into specific rules of interpretation.

Although s 35(1) of the Constitution enjoins one to have regard to comparable foreign case law where applicable in interpreting the F provisions of chap 3 of the Constitution, this should be done with circumspection because of the differing contexts within which foreign constitutions were drafted and operate in, and the danger of unnecessarily importing doctrines associated with those constitutions into an inappropriate South African setting (cf Van der Vyver (supra (1994) 111 SALJ 19 at 23-4).

G In my view it serves little purpose to characterise the proper approach to constitutional interpretation as liberal, generous, purposive or the like. These labels do not in themselves assist in the interpretation process and carry the danger of introducing concepts or notions associated with them which may not find expression in the Constitution itself. Far more useful it is to recognise that, because the Constitution is the supreme law of H the land against which all law or conduct is to be tested, it must be examined with a view to extracting from it those principles or values against which such law or conduct can be measured. Fortunately, the Constitution does provide such a framework of principles and...