For a constitutional democracy to thrive, the independence of the courts is imperative. Section 165(2) of the Constitution decrees it. Section 165(4) enjoins all organs of state to assist and protect courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. We all have a duty, for the sake of the rule of law and a sustainable constitutional democracy, to uphold, and defend jealously, the independence of the courts.

But courts are not buildings. They are the robed judicial men and women (Judges and Magistrates) who sit on those high benches ready, as their oath of office commands, to apply the law and dispense justice to all who appear before them impartially and without fear, favour or prejudice in accordance with the Constitution and the law.

Judges are human and, therefore, not perfect. When members of the public considers a decision of the courts to be unjust, could they be accused of  interfering with the independence of the courts and bringing their dignity into disrepute if they were to criticise the decision of the courts? For example, politicians may fear being accused of trying to hide something, journalists that they are siding with those they have been associated with, advocates may fear backlash from their own profession.

The answer should be obvious. Law journals are teeming with critical analyses of court judgments written by academics and practising lawyers alike. I myself can lay claim to a few critical analyses of judgments of the Supreme Court of Appeal published in the 1990s when I had more time in my hands as a student and junior advocate. But one can no longer be sure these days where critical analysis may be treated as an intemperate assault on the dignity of the courts by those for whom the judgment being criticised is considered something of a vindication of a political position or journalistic pursuit.

Let us use a recent judgment to illustrate this point. There is a real danger that the 4 February 2019 decision of the Constitutional Court in Moyane v President of the Republic of South Africa and others (CCT 334/2018), in which it dismissed Mr Tom Moyane’s application for leave to appeal against the decision of the High Court, may be perceived by some as being nothing short of a travesty. The Constitutional Court dismissed the application – saying it “bears no reasonable prospects of success” – not only without a reasoned judgment but also without hearing argument on the many constitutional issues raised by Mr Moyane.

The question that arises is whether this was an appropriate case for a summary dismissal of Mr Moyane’s application for leave to appeal, given the very serious issues of constitutional import that he raises, against a person who occupies the highest and most powerful office in the country, and mindful of the fact that no further appeal lies against a decision of the Constitutional Court.

Right of access to court and fairness

Courts of appeal can decide applications for leave to appeal on the basis of submissions made to them in writing, and without hearing oral argument in open court. For example, section 17(2)(d) of the Superior Courts Act, 10 of 2013 says the two judges of the Supreme Court of Appeal, designated by the President of that court to decide whether or not to grant leave to appeal, may dismiss the application without hearing oral evidence. But it also says they must call for oral argument where they are of the opinion that circumstances so require.

Rule 19 of the Constitutional Court rules says applications for leave to appeal may be dismissed without the hearing of oral argument or even receiving written argument other than that contained in the affidavit filed in support of the application. But it also says the court may order that the application for leave to appeal be set down for argument, and direct that the parties deal not only with the question of whether or not leave to appeal should be granted but also with the merits of the dispute between them.

Many may ask whether this application was an appropriate one to be dismissed summarily by the Constitutional Court without hearing oral argument on so many constitutional issues that it raises between a much-maligned senior government official (if the media is to be the measure), on the one hand, and the President of the country, a senior member of his cabinet, and a retired Judge of the second highest court in the land, on the other.

The right of access to court is not just a right to enter a courtroom, complain, vent your spleen and be on your merry way. It includes the right to have judges listen to your case without prejudging it. It includes judges looking at your case without being jaundiced by who you are, or by what they think you represent within the raging “State Capture” narrative that is dominating national discourse. It includes judges, ultimately, making a ruling on what was argued before them, not on what they believe should have been argued and lost.

That is fairness. The Constitutional Court in Walele also said that the right includes the legitimate expectation to be heard before a decision is made, even if the aggrieved person has no antecedent rights affected thereby. So, even if the rights that Mr Moyane asserts are spurious, it could be argued that, on its own authority, the Constitutional Court should have heard him. Why did it choose not to?

Since the enactment of the Superior Courts Act in 2013, prospects of success is not the only standard for deciding whether or not to grant applications for leave to appeal. Now, courts must also consider whether there are compelling reasons for the case to be heard. Many would argue that there are, given the fraught nature of the dispute and the profile of the personalities involved and positions they hold in the constitutional state.

If the sworn affidavit by an officer of the court that has been filed in the Constitutional Court is to be believed, at face value Mr Moyane appears not to have been afforded the right of access to court that is guaranteed in section 34 of the Constitution. According to the affidavit, the High Court viewed Mr Moyane’s application with a sense of irritation and disdain, characterising it as “abominable”. This is cause for concern.

But what was “abominable” about the application? Mr Moyane sought to have the process of the appointment of his successor stopped until his dispute with the President concerning the lawfulness and constitutionality of his dismissal had been decided by the court on a later occasion. This is not unusual because if a successor is appointed, and the higher court subsequently finds that the dismissal was unfair or unlawful, and orders reinstatement, it could prove tricky to give effect to that order if someone else has already been appointed in your position. Lawyers call such an order a brutum fulmen. The English call it a pyrrhic victory. South Africans would probably call it “Eish”!

So, to buttress his case, Mr Moyane asserted that (1) the President had abdicated his powers; (2) the President had violated his oath of office; (3) the President had waged a co-ordinated assault on Mr Moyane’s constitutional rights; (4) the President’s actions were part of a pre-rehearsed script aimed at Mr Moyane’s removal as Commissioner of SARS; (5) the President was motivated by ulterior and improper motives.

These are normal grounds of review under the principle of legality. The Constitutional Court has upheld similar grounds in previous cases. Academic writers recognise them. Asking why the High Court views them as “abominable” in Mr Moyane’s case, and why the Constitutional Court did not even want to hear argument on these matters, would be valid questions.

Conspiracy theorists may say that it was to avert a possible constitutional crisis that might conceivably result from a possible finding that two presidents, within three years of each other, violated the Constitution, and a possible embarrassment that could result from a finding that a senior retired Judge of the second highest court acted beyond the powers conferred on him by the terms of reference of his inquiry into the administration of SARS. It may be difficult to fault such a theory on the facts of this case.

The right of access to court is not about the case being strong or good. It is just about being heard by an impartial judge who has not prejudged the case and who will rule without fear, favour or prejudice for or against either party.

Mr Moyane’s case may well have been weak on the merits. But there seems to be no compelling reason for the Constitutional Court not to listen to his argument when so much is at stake. I would venture to say that it was probably in the public interest to have the debate on these serious constitutional issues, involving the head of state and one of his employees in whom he had declared loss of confidence, and hired his own personal lawyer to sit in judgment of Mr Moyane’s ability as Commissioner of SARS, conducted in full view of the country. This would have placed citizens in a better position to make up their own minds after hearing oral argument, as they did in the Nkandla case.

Punitive costs for asserting constitutional rights

The High Court characterised Mr Moyane’s application as “frivolous”, “vexatious and abusive”, insulting and defamatory of the President and Judge Nugent who chaired the SARS Commission appointed by the President to look into the administration of SARS under Mr Moyane. On that basis, the court concluded that Mr Moyane’s conduct was “abominable”. It then ordered that Mr Moyane pay the costs of two Counsel on a punitive scale, saying

“It is time that litigants realize that they cannot lightly make abusive allegations in Court affidavits under the mantle of safeguarding their constitutional rights, on the assumption that Court cost orders would not be granted against them.”

Orders of that sort are reserved for litigants who act disreputably in the conduct of their case. The Constitutional Court in Biowatch confirmed the general rule in Affordable Medicines that:

“[O]rdinarily, if the government loses, it should pay the costs of the other side, and if the government wins, each party should bear its own costs”.

The Constitutional Court justifies the rule on three grounds, namely, (1) that it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights; (2) that constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all those in similar situations; and (3) that it is the State that bears primary responsibility for ensuring that both the law and the State conduct are consistent with the Constitution.

The High Court punitive costs order against Mr Moyane, and the Constitutional Court’s endorsement of it, may be considered by many as putting senior government officials on notice that if they dare challenge the President on what they feel is unfair treatment that violates their guaranteed constitutional rights, they may be in danger of having the wrath of the courts visited upon them.

“Abominable”, “vexatious”, “frivolous” and “abusive” are strong emotive words. Their use by a court to describe the conduct of a citizen who seeks to assert his constitutional right – against the most powerful office in the country – to human dignity which is guaranteed in s 10 of the Constitution, his right to fair labour practice guaranteed in s 23 of the Constitution, his right to just administrative action guaranteed in s 33 of the Constitution, his right of access to courts guaranteed in s 34 of the Constitution, is cause for concern. Here we are on thin ice. The highest court in the land has now endorsed such a finding, without affording the citizen the right or legitimate expectation to have his argument heard when there appears to be compelling reasons to do so. This opens the door to many questions.

But even if Mr Moyane had “abused” the President by his application – and many may struggle to identify any abuse here – why would the High Court, and the Constitutional Court, run the risk of coming across as protecting a politician so trenchantly as to punish Mr Moyane with a punitive costs order? I am reminded of the courts, since 1956, saying that being abused is par for the course for politicians.

In 1956 the Johannesburg High Court said in Pienaar and Another v Argus Printing and Publishing Co Ltd 1956 (4) SA 310 (W):

“I think that the Courts must not avoid the reality that in South Africa political matters are usually discussed in forthright terms. Strong epithets are used and accusations come readily to the tongue. I think, too, that the public and readers of newspapers that debate political matters, are aware of this. How soon the audiences of political speakers would dwindle if the speakers were to use the tones, terms and expressions that one could expect from a lecturer at a meeting of the ladies’ agricultural union on the subject of pruning roses!”

That sentiment was shared by the Supreme Court of Appeal in a 2004 judgment and, more recently, by the Constitutional Court itself in The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others, Amici Curiae) 2011 (4) SA 191 (CC) in upholding a “fair comment” defence to a defamation claim where Mr Robert McBride was labelled “a murderer and a criminal” in a newspaper article. The Constitutional Court’s remarks are instructive:

“Public debate in South Africa has always been robust.  More than 50 years ago [a reference to the Pienaar v Argus Printing case], within the then-constrained perimeter of racially-defined public life, a court noted that in this country’s political discussion, ‘(s)trong epithets are used and accusations come readily to the tongue’. The court also found that allowance must be made ‘because the subject is a political one, which had aroused strong emotions and bitterness’, of which readers were aware, and that they ‘would not be carried away by the violence of the language alone’.

These words are still apt today. Public discussion of political issues has if anything become more heated and intense since the advent of democracy. A constitutional boundary is the express provision in the Bill of Rights that freedom of expression does not extend to hate speech. Another is the legitimate protection afforded to every person’s dignity, including their reputation. But, so bounded, it is good for democracy, good for social life and good for individuals to permit maximally open and vigorous discussion of public affairs.”

The President did not claim Mr Moyane was guilty of hate speech. He was not suing Mr Moyane for defamation of character. It is therefore a little difficult to follow the logic around how the High Court, on the pleadings before it, reached the conclusion that Mr Moyane’s application to stop the President appointing a successor to Mr Moyane’s job while Mr Moyane’s application for the review of the President’s decision to dismiss him was yet to be heard, was “abusive” and “defamatory”. The Constitutional Court considering this conclusion to be so justifiable as to merit the punitive costs order that the High Court had made against Mr Moyane, while not requiring oral argument, does leave us in the dark.