The importance of dissent: Two judgments in administrative law

• Jurisdiction: South Africa
• Citation: 2015 Acta Juridica 120
• Author: Cora Hoexter
• Date: 15 August 2019
• Pages: 120-140
• Published date: 15 August 2019

The importance of dissent: Two judgments

in administrative law

CORA HOEXTER*

In a Bram Fischer lecture, Chief Justice Pius Langa spoke eloquently about the

value and importance of dissent in society and more specif‌ically in the courts.

This article draws attention to two judgments in which he himself disagreed

with the majority in the context of administrative law. Both judgments are

characteristic of Chief Justice Langa and show him at his best, if not at his most

popular. Both are remarkably clear-sighted and well-reasoned opinions. Both

demonstrate his strong sense of constitutionalism and his profound respect for

the design of our democratic Constitution and the institutional roles set out in

it. Most tellingly of all, both are based on principle rather than pragmatism,

and both eschew expediency. While only one of these judgments has found

vindication in the Constitutional Court’s subsequent jurisprudence, both

opinions illustrate the qualities of scrupulousness and courage that distin-

guished the work of Chief Justice Langa; for in both instances he faithfully

followed the advice he gave at the end of his Bram Fischer lecture: ‘Tell the

truth about the emperor’s robes, no matter the consequences.’

I THE VALUE OF DISSENTING JUDGMENTS

In the f‌ifth Bram Fischer Memorial Lecture, delivered at the University of

the Witwatersrand in May 2007,

1

Chief Justice Pius Langa spoke of the

need for dissent and dissenters in society, and the importance of allowing

the Galileos and the Ghandis of one’s time to be heard. Referring to the

strong human inclination to conform to group pressure, he underscored

the need to make space for courageous individuals who, like Bram Fischer

himself, refuse to accept the mainstream view and insist on what they

believe to be right or true.

Langa then turned to consider the value of judicial dissent and touched

on some of the rich literature that exists on this topic.

2

His excellent

lecture deserves to be read in full and I shall not attempt to summarise it

here, but I would like to draw attention brief‌ly to some of the more

important benef‌its of a system that permits dissenting judgments to be

produced and made public. Because this is the norm in common-law

* Professor of Law, University of the Witwatersrand,Johannesburg; Advocate of the High

Court of SouthAfrica; BA LLB (Natal) MA (Oxon) PhD (Witwatersrand).

1

P Langa ‘The emperor’s new clothes: Bram Fischer and the need for dissent’ (2007) 23

SAJHR 362.

2

Langa (n 1) 369ff.

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2015 Acta Juridica 120

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jurisdictions,

3

lawyers who work in them tend to take these benef‌its for

granted and to forget that they are not necessarily obvious to everyone

else. In fact many jurisdictions do not see the point of allowing judgments

that are not the law and that may well detract from those that are the law.

Dissenters may easily get it wrong; and even if they don’t, split decisions

may be thought divisive and uncollegial, economically ineff‌icient, con-

fusing and even subversive.

4

Even in the common-law world, where judicial dissent is familiar, lay

observers may f‌ind the practice perverse. It is worth recalling that in what

is now a world-famous interview our President, Mr Jacob Zuma,

expressed bemusement at the idea of a judgment that is not unanimous:

for how could a judgment be said to be correct if the judges themselves

had different views about it?

5

Reports of the interview suggested that the

distressing phenomenon of split decisions of the Constitutional Court,

which ‘undermined its authority’, had informed the cabinet’s decision to

call for an assessment of the work of that court.

6

A month after the

interview, Justice Zak Yacoob took the opportunity to explain in an

address at the University of Cape Town that in this country, as in many

others –

[t]he fact that judges differ with each other is . . . not something to bemoan.

Differences of opinion are vital to a healthy judiciary and to the development

of a vigorous jurisprudence. As has been said many times, the dissent of today

could be the majority judgment of tomorrow. I would be perturbed indeed if

eleven judges of the Constitutional Court agreed with each other judgment

after judgment, year after year. This would be an indication of a judiciary that

is not suff‌iciently representative, and lacking the strength required for true

independence and impartiality.

7

3

With some exceptions: for example, dissenting opinions were not allowed in Privy

Council cases until 1966, and individual opinions are still not allowed in Malta. Conversely,

some civil-law states allow separate opinions in constitutional cases and many allow them to be

published in all cases. Auseful survey is contained in Directorate General for Internal Policies,

European Parliament Dissenting Opinions in the Supreme Courts of the Member States (2012).

4

For arguments against dissenting opinions, see ibid para 1.2.

5

See Staff Reporter ‘Zuma eyes ConCourt changes’ Mail & Guardian 13 February 2012,

available at http://mg.co.za/article/2012–02–13-zuma-eyes-concourt-changes (accessed on

20 November 2013). The interview was with a newspaper,The Star.

6

See eg C Molele & A Makinana ‘ANC sets its sights on the judiciary’Mail & Guardian

17 February 2013, available at http://mg.co.za/article/2012–02–17-anc-sets-its-sights-on-

the-judiciary (accessed on 20 November 2013). The review of the judgments of the court was

off‌icially announced in a media statement by the Minister of Justice and Constitutional

Development, Mr Jeff Radebe, on 28 February 2012, and in March 2012 it was extended to the

jurisprudence of the Supreme Court of Appeal. The contract for the study was eventually

awarded inAugust 2013: see eg K Ndabeni ‘Contract for scrutiny of top courts quietly awarded’

Business Day ePaper 26August 2013, available at http://www.bdlive.co.za/national/law/2013/

08/26/contract-for-scrutiny-of-top-courts-quietly-awarded (accessed on 26August 2013).

7

Justice Zak Yacoob ‘A dynamic Constitution’, opening address presented at Constitution

Week on Monday 12 March 2012 at the University of Cape Town, available at http://

121

THE IMPORTANCE OF DISSENT

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