Sorry, Mkhwebane, the Constitutional Court doesn’t need to ‘convince’ you of anything

The Constitutional Court (CC) last month handed down the much-talked-about judgment in the matter between the Public Protector (PP), Busisiwe Mkhwebane, and the South African Reserve Bank, in which the majority of the court made unflattering findings against the PP.

I could, of course, be accused, perhaps justifiably, of deflating the impact of the judgment by using the word ‘unflattering’. I am sure my accusers have ready-to-hand adjectives like ‘damning’, ‘shattering’, ‘devastating’ or even ‘career-ending’ to more fittingly capture the impact of Justices Khampepe and Theron’s judgment on the incumbent.

It should come as no surprise, therefore, that the PP would have been so affected by the judgment that she uttered these remarks: “…I will study the judgment of the court, and if I am convinced by it [my emphasis], I will respond comprehensively.”

This response was already labelled absurd elsewhere and commentators explained why. But I found it problematic for a different reason.

The same could be said of Brian Molefe who, two weeks later, lost a case brought against him by Solidarity in the same court and in which he was ordered to return R10 million unlawfully paid to him as a pension. His reaction was that he was “going to study the judgment and explore his options…”

This reaction was potentially misleading. It implies to a layperson that there are legal avenues open to the PP or Brian Molefe – or anyone who loses at the Constitutional Court – to get the court’s decision reviewed should they, after reflecting on it, find it unconvincing.

In South Africa we have a clear hierarchy of courts endorsed by the Constitution itself, and expanded upon by the rules of court.

Since the advent of the Constitution in 1996, the high courts have been permitted to pronounce on the constitutionality of any law or conduct between the state and individuals (vertical application) and between individuals themselves (horizontal application).

High courts’ decisions that the manner in which a piece of legislation was passed – and therefore the resulting law itself – could be deemed unconstitutional would only have legal force if and when confirmed by the Constitutional Court.

Otherwise, any person aggrieved by a high court decision could seek the audience of the Supreme Court of Appeal (SCA). If no joy was found there, the Constitutional Court could be petitioned.

The Constitution ordained the Constitutional Court the final arbiter of all legal disputes with a constitutional dimension, while the SCA was to have the final word on all other matters.

The 17th Constitutional Amendment brought about a twist to this hierarchy. Accordingly, the Constitutional Court would now have the ultimate say in all matters, constitutional or not. The Constitutional Court would be the litigation cul-de sac for everyone in South Africa.

One would have to be naive in the extreme to think that the PP was simply delirious when reacting to the Constitutional Court’s decision against her. This is because she may have had another process in the back of her mind. She may have realised that the decision could trigger her impeachment and bolster those who have been calling for it. A parliamentary process to look into her fitness to occupy office is now under way.

Her disagreement with the Concourt might be useful there. That, however, would be a political and not a legal matter.

Thus, to the lay member of the public and prospective law student, beware and remember that the Concourt is the ultimate end to all litigation, and its decision will be binding on you whether you are “convinced” by it or not.

Heleba is a lecturer in the Faculty of Law at the University of Johannesburg

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