Law de­mands cre­ative re­think­ing

The out­come of the Michael Komape case il­lus­trates the need for judges to break new ground to re­alise the demo­cratic con­tract

Mail & Guardian - - Comment & Analysis -

Three events have prompted this col­umn: the de­bate about the record of the ju­di­ciary un­der apartheid, which arose af­ter the death of Judge Ra­mon Leon and the im­po­si­tion of the death penalty by Leon on Andrew Zondo; the judg­ment in Komape vs the Min­is­ter of Ba­sic Ed­u­ca­tion fol­low­ing the death of five-year-old Michael Komape, who died when he fell into a pit toi­let at his school; and the ma­jor­ity judg­ment of the Con­sti­tu­tional Court, which found that the de­lib­er­a­tions of the Ju­di­cial Ser­vice Com­mis­sion (JSC) when de­cid­ing on ju­di­cial ap­point­ments could be made pub­lic.

As Franny Rabkin ob­served in her ar­ti­cle “The death penalty and judges who had to ap­ply it” (April 27) on the im­po­si­tion of the death penalty in po­lit­i­cally charged cases, the re­la­tion­ship be­tween the Bar and the hand­ful of more en­light­ened judges was a Faus­tian pact.

Judges who sought to im­ple­ment the rule of law were re­garded as nec­es­sary to the fight against apartheid even if, from time to time, they were com­pelled to im­ple­ment dra­co­nian laws, in­clud­ing the im­po­si­tion of the death penalty.

Judg­ments were handed down that in ef­fect evis­cer­ated the pass laws, ex­er­cised some con­trol over de­ci­sions to de­tain po­lit­i­cal op­po­nents of the regime and im­posed light sen­tences.

Leon, for ex­am­ple, penned an im­por­tant and cre­ative judg­ment in the case of (Arch­bishop De­nis) Hur­ley and Another vs the Min­is­ter of Law and Or­der, in which he cur­tailed po­lice dis­cre­tion to de­tain with­out trial.

This his­tory has never re­ceived the treat­ment it de­serves because the record of the ju­di­ciary was not sub­jected to proper scru­tiny by the Truth and Rec­on­cil­i­a­tion Com­mis­sion. But the ef­forts of a small mi­nor­ity of judges helped to keep alive a be­lief in the im­por­tance of law as a key to a demo­cratic fu­ture.

When South Africa re­ceived its Con­sti­tu­tion af­ter the 1994 elec­tions, there was great hope that a new trans­formed ju­rispru­dence would be pro­duced by a freshly pop­u­lated ju­di­ciary com­mit­ted to a com­plete over­haul, where nec­es­sary, of the le­gal sys­tem that op­er­ated be­fore the dawn of democ­racy.

In a number of ar­eas of law, that chal­lenge has been met. But in many fields, par­tic­u­larly of pri­vate law, even the le­gal imag­i­na­tion shown by some of the small cadre of lib­eral judges dur­ing apartheid has not been fol­lowed.

That brings this col­umn to the Komape case. Mem­bers of his fam­ily launched two key claims against the min­is­ter and the Lim­popo de­part­ment of ed­u­ca­tion: dam­ages for emo­tional trauma and shock ex­pe­ri­enced as a re­sult of Michael’s death, and a fur­ther claim for grief, or al­ter­na­tively con­sti­tu­tional dam­ages as a re­sult of a fail­ure to pro­tect the child.

Judge Ger­rit Muller found that, although our law recog­nises dam­ages for emo­tional shock, there must be recog­nis­able psy­chi­atric harm or in­jury in­duced by a de­fined event to be a suc­cess­ful claim. The court held that to recog­nise a claim for grief with­out ev­i­dence of psy­chi­atric harm or in­jury would lead to bo­gus claims as well as an un­war­ranted pro­lif­er­a­tion of claims. On the ba­sis of the ex­pert ev­i­dence led be­fore the court, it could not be held that the fam­ily plain­tiffs had suf­fered any recog­nis­able ill­ness.

Turn­ing to con­sti­tu­tional dam­ages, the court held that this form of claim was equiv­a­lent to punitive dam­ages that had not been jus­ti­fied. An award would re­sult in over­com­pen­sa­tion of the fam­ily and would not serve as a mean­ing­ful de­ter­rent to fu­ture vi­o­la­tions of rights.

In its place the court is­sued a struc­tural in­ter­dict that or­dered the de­part­ment to in­stall toi­lets in all schools where there were pit la­trines.

The struc­tural in­ter­dict is to be wel­comed in re­sponse to so egre­gious a form of con­duct, namely that al­most a quar­ter of a cen­tury since democ­racy dawned, chil­dren are com­pelled to at­tend schools that have pit la­trines. But the re­fusal to grant con­sti­tu­tional dam­ages in so shock­ing a case, par­tic­u­larly when the Con­sti­tu­tional Court in Fose vs the Min­is­ter of Safety and Se­cu­rity had kept open the door for the award­ing of con­sti­tu­tional dam­ages in suit­able cases, is dis­ap­point­ing.

Fur­ther­more, to refuse an in­vi­ta­tion to de­velop the com­mon law so as to ac­com­mo­date the kind of trauma and grief suf­fered by the fam­ily in this kind of case is re­gret­table.

And that brings us to the JSC, which is re­spon­si­ble for the ap­point­ment of judges. A number of its de­ci­sions have prompted more than a tad of con­tro­versy, in par­tic­u­lar the ques­tion about its de­ci­sion-mak­ing process con­cern­ing the commitment of a can­di­date to the trans­for­ma­tion of the le­gal sys­tem and the abil­ity and record of the can­di­date to meet the chal­lenges to the le­gal sys­tem posed by the ad­vent of the Con­sti­tu­tion.

The judg­ment of the ma­jor­ity of the Con­sti­tu­tional Court, hold­ing that a blan­ket ban on the dis­clo­sure of the de­lib­er­a­tions of the JSC could not be legally jus­ti­fied, may pro­vide bet­ter in­sight into how the JSC treats ques­tions about this trans­for­ma­tion.

Although dis­clo­sure may only take place when a JSC de­ci­sion is sub­jected to ju­di­cial re­view, the threat of dis­clo­sure may pro­mote the kind of com­pre­hen­sive de­bate be­fore an ap­point­ment de­ci­sion is taken, which in turn could mean that the vi­tal im­por­tance of ju­rispru­den­tial phi­los­o­phy will be cen­tral to the process. The case of Michael Komape should be a re­minder.

The le­gal imag­i­na­tion shown by the lib­eral judges dur­ing apartheid has not been fol­lowed

Squan­dered: The court could have de­vel­oped the law to in­clude dam­ages for trauma and grief

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