Download this publication - PULP

410 Chapter 17
Moreover, evidence exists for the proposition that the Constitutional
Court’s failure to set out the structure for Bill of Rights arguments (and
that embraces arguments about the nature of direct application and indirect
application) has the unfortunate consequence of leading perfectly
competent High Court judges to make quite egregious mistakes when
undertaking constitutional analysis and to avoid direct application of a
constitutional right if possible.
For example, in Hlophe v Constitutional Court, the majority of the High
Court panel of five judges found that a panoply of Hlophe JP’s constitutional
rights had been violated. 50 The problem with both the applicant’s papers and
the majority’s judgment is that they identify no underlying cause of action that
was subject to challenge on constitutional grounds. In the normal course of
constitutional litigation, the applicant will identify a rule of law that, as
currently construed, violates one or more constitutional rights. The
challenge is to the law as it currently exists in the hope that a change will
vindicate the client’s rights and allow for a more appropriate cause of action
to proceed. That did not happen in Hlophe v Constitutional Court. Instead,
Hlophe asserted that a variety of constitutional rights – equality, dignity,
privacy, etc – had been infringed by the actions of the Constitutional Court. He
did not claim that various actions in delict needed to be altered to give him the
relief he sought, nor did he claim that a statute like the Promotion of Equality
and Prevention of Unfair Discrimination Act likewise failed to provide an
actionable claim or an appropriate form of relief for damages. More disturbing
still is that a majority of the five judge panel found that Hlophe’s rights had
been violated per se – not by existing law, nor the manner of its enforcement.
Again: the assertion of self-standing constitutional claims and remedies is not
how things are done here. (Fose and subsequent case law has made it clear that
the Constitutional Court will be slow to create, new, self-standing,
constitutional remedies.) Fortunately, the Supreme Court of Appeal
recognised that the Hlophe High Court had been wrong both in the manner in
which it analysed the claims and, consequently, in the conclusions that it had
reached. 51
While Professor Michelman and I agree on both this analysis of the High
Court’s judgment and with the Supreme Court of Appeal’s correction of
course, we may not draw exactly the same conclusions. My conclusion is that
many High Court judges fear constitutional analysis or do not know how to
handle a constitutional matter. I am further inclined to attribute responsibility
for this ongoing fear to a Constitutional Court that has not made patently clear
the manner in which constitutional claims ought to be handled. (That is an
argument about thinness from which Professor Michelman will likely demur.)
Moreover, I tend to believe South African constitutional lawyers and scholars
would recognise – and decry – the pattern I describe.
50
Hlophe v Constitutional Court (08/22932) 2008 ZAGPHC 289.
51 Langa v Hlophe (697/08) 2009 ZASCA 36.