“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole of our people by its example.” These were the words of justice Louis Brandeis in a famous dissenting opinion involving a privacy case in the US Supreme Court in 1928.
They were quoted by the Constitutional Court in the judgment of its first case, S vs Makwanyane, which effectively abolished the death penalty in SA.
They were quoted again in the Pretoria high court this year in judge Hans Fabricius’s ruling in the case of Collins Khosa, who died after being beaten by soldiers enforcing the lockdown.
Khosa, 40, had been drinking a beer in his yard in Alexandra and had not broken any lockdown regulation.
Excessive use of force was a feature of the state’s response to the pandemic, with at least nine deaths attributed to the police or army.
The Khosa judgment was a landmark decision ordering the government to implement a lockdown code of conduct for security forces, set up a mechanism for the reporting of security forces’ brutality, and report to the court on incidents of breaches of rights by security forces.
The pandemic dominated the courts, as it did everything else this year. When the country went into lockdown, courts also closed initially except for the most urgent cases and those challenging lockdown regulations. SA did not declare a state of emergency, opting instead for a state of disaster, meaning all our constitutional rights remained enforceable.
There were a number of challenges to the regulations, ranging from the bizarre to matters of life and death. Among the bizarre was the Hola Bon Renaissance Foundation’s application to the Constitutional Court to set aside a state of emergency that did not even exist and to declare that Covid-19 was “no serious threat”.
At first, litigants went directly to the Constitutional Court, but they were sent packing. The highest court refused them direct access even in the most serious cases, such as Khosa’s.
The National Education, Health and Allied Workers Union’s Labour Court case about the provision of personal protective equipment to health-care workers failed when health minister Zweli Mkhize persuaded the court that there was no shortage.
When parents of newborns complained that they were unable to buy baby gear, the regulations were quickly amended and litigation ended.
However, the government had to be forced to do what was right when the basic education department was dragged to court to ensure that children — many of whom received their only daily meal at school — were fed during the lockdown. People also turned to the courts over evictions by landlords that had gone ahead despite being outlawed during the lockdown.
The tobacco, liquor and hospitality industries also headed to court. The Fair Trade Independent Tobacco Association was unable to persuade the Pretoria high court that the ban on cigarette sales was irrational in law. But the British American Tobacco case in Cape Town was argued on different grounds and the court struck down the tobacco ban.
SA remains in a national state of disaster and these judgments will guide the government on how to craft disaster regulations.
In the face of the deaths, hunger and economic deprivation brought on by the pandemic, other legal cases seemed to pale into insignificance. But before the pandemic hit, the year started with an application by the state capture commission to extend its tenure.
The application was granted, but the extension was made a strictly final one. This means the Zondo commission is operating under a court-ordered deadline to submit its report to the president by the end of March.
This week Zondo said he would apply to court to extend his deadline from the end of March to the end of June, because the commission had lost three months of public hearings due to the lockdown. The big question for the early part of the year is whether former president Jacob Zuma will abide by two summonses and appear before the commission to answer questions.
Since July 2019, the commission’s legal team has been trying to get Zuma to respond to the evidence of more than 30 witnesses, who had — or may have — implicated him in state capture.
An agreement that he would respond in writing to “areas of interest” outlined by the commission’s legal team was reneged on. Directives by Zondo to depose to affidavits responding to specific evidence were similarly ignored.
Finally, a subpoena was issued for Zuma’s attendance and though he appeared, it was only to seek the recusal of Zondo. When his recusal application failed, he absconded, prompting a second subpoena and an urgent application to the Constitutional Court.
Litigation involving the public protector, Busisiwe Mkhwebane, also dominated the start of 2020, and picked up again in August — with her track record for losing court cases not improving.
Before the lockdown, the public protector’s Bosasa report was set aside by the high court. The report dealt with President Cyril Ramaphosa’s CR17 campaign for the ANC presidency. By the end of November, the public protector’s application for leave to appeal had been heard by the Constitutional Court; judgment has yet to be delivered.
In the early part of the year, the Constitutional Court gave crucial guidance on how interim interdicts against the public protector should be treated by the courts. Since the highest court clarified in its Nkandla decision that the public protector’s remedial action was binding unless someone went to court, it has meant a huge increase in court cases involving the public protector.
When a court case is continuing, what happens in the meantime? This is what the Constitutional Court clarified in its judgment in the case between public enterprises minister Pravin Gordhan and Mkhwebane. Her challenge to parliament’s impeachment rules also began in the high court and will probably dominate the early part of 2021.
Long-standing legal uncertainty on hate speech was also ventilated before the Constitutional Court, with the constitutionality of section 10 — the hate speech provision — of the Promotion of Equality & Prevention of Unfair Discrimination Act explored in the Jon Qwelane case. Judgment is pending.
The 12-year complaint against Western Cape judge president John Hlophe is finally being investigated by a Judicial Conduct Tribunal. In 2008, all the then justices of the Constitutional Court complained to the Judicial Service Commission that Hlophe had tried to influence the outcome of a judgment pending before their court and related to the corruption prosecution of Zuma.
At the time Zuma was president of the ANC and the case was widely believed to be all that stood between him and the presidency of SA. An initial finding that cleared Hlophe was set aside as unlawful by the Supreme Court of Appeal in 2011 and since then the complaint has resisted finalisation with seemingly endless litigation delaying its resolution.
This year, a whole new dispute exploded involving Hlophe: an unseemly fight with his deputy that has pulled in at least 10 other judges of the Western Cape High Court.
Hopefully the second dispute will not take as long as the first to be resolved, but no-one is holding their breath.
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