The importance of process and substance
| Date | 01 August 2017 |
| Record Number | sapr1_v32_n1_2_a4 |
| Published date | 01 August 2017 |
| Author | Max Du Plessis,Gilbert Marcus |
| Pages | 1-33 |
| DOI | 10.10520/EJC-103390580f |
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https://doi.org/10.25159/2522-6800/3567
ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)
© Unisa Press 2017
Southern African Public Law
https://upjournals.co.za/index.php/SAPL/index
Volume 32 | Number 1 and 2 | 2017 | pp.1–33
ARTICLE
The Importance of Process and Substance*
Gilbert Marcus
SC (BA LLB (Wits) LLM (Cantab), Senior
Counsel, member of the Johannesburg
Bar
gilbert@gilbertmarcus.com
Max du Plessis
SC (BIuris (SA) LLB (Natal) LLM
(Cantab) PhD (KwaZulu-Natal), Senior
Counsel, member of the Durban Bar;
Honorary Research Fellow, University of
KwaZulu-Natal, Durban
maxduplessis@mac.com
ABSTRACT
The Constitution of the Republic of South Africa, 1996 endeavours to reverse the legacy
of apartheid. In the process, the judgments of the Constitutional Court have restored and
extended many of the fundamentals of fairness and due process that had been trampled
on by the apartheid state. This article highlights the important role that Justice Ngcobo’s
judgments have played (and continue to play) in our developing jurisprudence on procedural
fairness. As it will be demonstrated, the Constitutional Court has begun to work out a home-
grown account of due process that not only marks a stark break with our apartheid past,
but which also highlights the contextual challenges and features of our new democratic
order—and stresses the sometimes—dicult balancing exercise required by our courts in
protecting rights while respecting separation of powers. This article, therefore, pays tribute
to Justice Ngcobo’s careful thinking around due process, and his insistence through various
important judgments on recognising three cardinal features of fairness, which have now
come to resonate in the Constitutional Court’s jurisprudence.
Keywords: process and substance; procedural fairness; dispute resolution; public
participation; reasonableness
Introduction
Justice Ngcobo accomplished much that is worthy of recognition during his period of
service on the Bench. His contribution to revitalising and restructuring the judiciary is
one example. It is well known that Justice Ngcobo had ambitious plans to transform
the judiciary into a branch of government that is both institutionally and functionally
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Marcus and Du Plessis The Importance of Process and Substance
independent of the Executive.1 This was a cause close to his heart even before he was
Chief Justice: as far back as 2003, he presented an address in which he cautioned that
an Executive-dependent court administration system compromised the independence
of the judiciary. He used his time as Chief Justice to drive through several reforms.
Chief among these was the proclamation establishing the Oce of the Chief Justice
as a national department to provide support to the judiciary and ensure ecient court
administration services.2
Justice Ngcobo is also widely lauded for his prolic work ethic, abundant energy and
legal acumen. In this article, we have chosen, however, to consider his contribution
to conrming the importance of process, a theme that emerges from his judgments as
a Justice of the Constitutional Court. As some time has passed since Justice Ngcobo
served on the Bench, we now have the benet of seeing how his judgments on process
have been treated and interpreted, and how they have inuenced subsequent legal
developments. These reveal the important role Justice Ngcobo’s work has played in
developing our present understanding of the procedural constraints on the exercise of
public power, generally, and of procedural fairness in particular.
The many and varied subjects of Justice Ngcobo’s judgments that we consider include
access to courts and procedural fairness in administrative action,3 public participation
in the legislative process,4 the participation of victims in a decision to pardon political
prisoners,5 and lawfulness of search-and-seizure warrants.6 The judgments reveal Justice
Ngcobo’s bold approach to procedural fairness, the audi alteram partem rule (or audi
principle) and natural justice.
South African administrative law lost its way under apartheid. Rampant parliamentary
sovereignty in an undemocratic setting frequently held sway in giving eect to apartheid’s
grand design. With a few notable exceptions, the judiciary oered little resistance. The
* We are grateful to Toni Palmer (advocate, Durban Bar) for her valuable assistance on an earlier
draft of this article. Max du Plessis would further wish to acknowledge with gratitude the Colenso
Scholarship, which allowed him uninterrupted time and a convivial environment in which to work on
this article as a visiting fellow at St John’s College, Cambridge during the Lent Term of 2017.
1 Hugh Corder and Jason Brickhill, ‘The Constitutional Court’ in Cora Hoexter and Morné Olivier, The
Judiciary in South Africa (Juta 2014) 355 at 368.
2 Judge Ngcobo observed in a seminal address to a National Judges’ Symposium in July 2003 that the
Judiciary cannot be said be a genuinely independent and autonomous branch of government if it is
‘substantially dependent upon the executive branch not only for its funding but also for many features
of its day-to-day functions and operation’: Sandile Ngcobo, ‘Delivery of Justice: Agenda for Change’
(2003) 120 SALJ 688 at 697, discussed in Corder and Brickhill (n 1) 103.
3 Zondi v MEC for Traditional and Local Government Aairs 2005 (3) SA 589 (CC).
4 Matatiele Municipality & Others v President of the Republic of South Africa & Others 2007 (6) SA
477 (CC) (‘Matatiele’).
5 Albutt v Centre for the Study of Violence and Reconciliation & Others 2010 (3) SA 293 (CC) (‘Albutt’).
6 Thint (Pty) Ltd v National Director of Public Prosecutions & Others, Zuma & Another v National
Director of Public Prosecutions & Others 2009 (1) SA 1 (CC) (‘Thint’).
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Marcus and Du Plessis The Importance of Process and Substance
basic notion of fairness—that there is a duty upon ‘everyone who decides anything’ to
listen to both sides7—was forgotten. The Constitution of the Republic of South Africa,
1996 (hereinafter ‘the Constitution’) attempts to reverse this legacy. In the process,
the judgments of the Constitutional Court have restored and extended many of the
fundamentals of fairness and due process that had been trampled on by the apartheid
state.
In the discussion that follows we highlight the important role that Justice Ngcobo’s
judgments have played (and continue to play) in our developing jurisprudence on
procedural fairness. As we shall see, the Constitutional Court has begun to work out a
home-grown account of due process that not only marks a stark break with our apartheid
past, but also highlights the contextual challenges and features of our new democratic
order—and stresses the sometimes dicult balancing exercise required by our courts in
protecting rights while respecting the separation of powers.
The Roots of Procedural Fairness
Section 33 of the Constitution enshrines the right to administrative action that, in
addition to being lawful and reasonable, is procedurally fair.8 The constitutional right
to procedurally fair administrative action is given eect to in sections 3 and 4 of the
Promotion of Administrative Justice Act (‘PAJA’).9
While the right has been aorded constitutional entrenchment, the principle of procedural
fairness has long been part of our law. In its common-law guise, procedural fairness (or
‘natural justice’ as it was known) consisted of two main components. These are reected
in the common-law maxims audi alteram partem (hear the other side) and nemo iudex
in sua causa (no one should be a judge in his or her own cause). For present purposes,
we are concerned with the rst of these two requirements—the audi principle. Corbett
CJ in Du Preez & Another v Truth and Reconciliation Commission located the audi
principle as part of a general duty to act fairly in certain circumstances:10
The audi principle is but one facet, albeit an important one, of the general requirement of natural
justice that in the circumstances postulated the public ocial or body concerned must act fairly…
The duty to act fairly, however, is concerned only with the manner in which the decisions are
taken: it does not relate to whether the decision itself is fair or not.11
7 Board of Education v Rice [1911] AC 179 at 182.
8 Section 33 states that ‘[e]veryone has the right to administrative action that is lawful, reasonable and
procedurally fair.’
9 Bato Star Fishing (Pty) Ltd v Minister of Environmental Aairs and Tourism & Others 2004 (4) SA
490 (CC) para 25.
10 1997 (3) SA 204 (SCA) (‘Du Preez’).
11 ibid at 231G–H.
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