An omnipresent jurisdiction

The problem with direct access

Bush v. Gore, the US Supreme Court case in which Florida’s presidential election was decided in favour of George W. Bush, “stands for the proposition that if Justices care enough about a case’s outcome, the law goes out the window.” This is the view of Professor Michael J. Klarman in his Foreword to a recent issue of the Harvard Law Review. He argues that established rules about how the Supreme Court functions, rules about jurisdiction, mootness, standing, and even precedent, often give way to the Justices’ preferences when the court exercises its discretion in order to achieve a particular outcome.

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This seems to be true of our Constitutional Court as well. While complaints and critiques about its tendency to employ outcome-based reasoning in reaching its decisions are not new, its approach in employing this way of reasoning has certainly become more obvious.

On Thursday, the Court handed down its judgment in the State Capture Commission’s application to compel the former President Zuma to appear, and give testimony, before it. It held that Zuma was compelled to comply with the summons issued by the Commission and appear before it on a date it will determine; that he will not have the right to remain silent and therefore not answer questions; and that he will still retain his privilege against self-incrimination, but that such privilege would not be a blanket privilege and would have to be invoked against every question an answer to which might incriminate him, if he can show it.

The judgment is an interesting one. It begins by laying out the legal framework of the Commission, starting with the provisions of the Constitution, then going through those of the Commissions Act of 1947, and finally onto the regulations which govern the conduct of its proceedings. It then recounts the factual matrix that led to the application and sets out, in painstaking detail, how the Commission—through its conduct and that of its lawyers—was the architect of its own misfortune. The Commission had approached the Court on an urgent basis, arguing that because the deadline for the release of its report is looming (March 2021), it needed the Court to determine the matter as one of urgency. The Court found, for the most part, that this urgency was self-created. The Commission knew, it said, as far back as July 2019, that Zuma was not a cooperative witness and that it should have, at that stage or later, invoked its coercive powers to compel his attendance and testimony. Nevertheless, this self-created urgency notwithstanding, it is within the Court’s discretion to still determine whether or not the matter should be heard.

On this point, things get interesting. The Court says that the lack of urgency is not dispositive and should be weighed against other factors “including those that are in favour of granting direct access.  These include enabling the Commission to conduct a proper investigation of matters it is tasked to determine; the fact that the matter is not opposed and that it bears reasonable prospects of success.” Direct access and exclusive jurisdiction were pleaded by the Commission as alternate grounds on which the Court should assume jurisdiction.

The Court’s reasoning on the direct access point seems to be this: (1) the Commission must conduct a proper investigation; (2) it has not been able to do so because of its own conduct; (3) in order to rectify that, the Court has to grant direct access; (4) therefore direct access is granted. This is classic outcome-based reasoning. The Court rarely grants direct access applications. Where it does so, guided by the interests of justice standard, exceptional circumstances must exist that justify a departure from its regular procedure. Here, it provides none. Indeed, the Court stresses the prejudice that would be suffered by “the public interest” were direct access to be denied. But this is not a principled ground on which to assume jurisdiction.

The provision which allows a party to bring an application for direct access was drafted when the Court’s jurisdiction was limited to constitutional matters only. The Seventeenth Amendment to the Constitution expanded this jurisdiction to include matters that raise “an arguable point of law of general public importance which ought to be considered” by the Court. But the Court has itself interpreted this amendment not to extend its jurisdiction to the point of being general, i.e. the Court is not free to hear any matter it wants. This presents a problem. Direct access serves as a way of by-passing the normal judicial process, skipping the High Court and Supreme Court of Appeal and making the Court sit as a court of first and last instance. That is fine, in constitutional matters, where the Court already has jurisdiction. But what about when jurisdiction still has to be determined? In this judgment, the Court does not even bother with this analysis. It departs, essentially, from the assumption that it already has jurisdiction.

The question at the heart of this matter is simply a statutory one: does the Commissions Act oblige a witness, when summonsed, to appear and give evidence before it? It is a question that the High Court and Supreme Court of Appeal could answer, barring the existence of any exceptional circumstances. So on what basis does the Court assume jurisdiction? Unless all statutory interpretation cases raise constitutional issues (which they do not), it is not clear what the basis of the Court’s jurisdiction is. Indeed, direct access is in some sense just like a direct appeal from another court—by-passing an appeal court—to the Constitutional Court. It cannot be that just because an appeal may lie to the Court, it automatically has jurisdiction. A decision on jurisdiction must therefore be antecedent to any decision on direct access and must be independently established therefrom.

We get a glimpse of the Court’s thinking on this point when it concludes that since it had decided to grant direct access, it was “unnecessary to determine whether the matter falls within the exclusive jurisdiction of this Court”. But this is different. A matter which falls within the Court’s exclusive jurisdiction must be heard by it because no other court can. But, in the same way that leave for direct appeal may be granted and the matter dismissed for want of jurisdiction, granting direct access does not dispose of the jurisdictional question.

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The absence of a jurisdictional finding was so glaring for me that I have had little interest in the merits discussion in the judgment, because, frankly, it shouldn’t have gone that far. The Commission’s case s should have been decided by the High Court. There is nothing that merited the Court’s intervention. The argument that Zuma would have appealed a High Court judgment leads me to ask one simple question: So what? He has every right to, and the Commission has at its disposal procedures to enforce an order while that process is ongoing. The Commission was a victim of its own doing, of its own coddling of a witness to the point that he thought it appropriate to act in contempt. But that is not the Court’s mess to fix nor should it have. The Court’s increased proclivity to entertain matters purely to realise an outcome that it thinks appropriate, on sometimes dubious principles (if at all), is also worrying. Would it do the same in the case of an ordinary John Doe? One wonders.