SCA power and prestige slipping away

Yesterday, in the case of Minister of Safety and Security v Luiters, the Constitutional Court handed down judgment in a case in which it was asked to develop the common law principles relating to the vicarious liability of the Police for the actions of its members.

In many respects it is a run of the mill judgment by Chief Justice Langa in which the Court merely declined to reconsider the SCA decision holding the Minister of Safety and Security delictually liable for the actions of an off-duty policeman who shot and paralysed Mr Luiters.

I was struck, first, by the fact that the legal representatives of the Minister had a hard time to convince the Court to hear the case because the Constitutional issues were not canvassed in either the High Court or the Supreme Court of Appeal.

Chief Justice Langa remarked:

The Court has repeatedly stressed the importance of raising constitutional issues in the High Court. It is a matter of fairness to the parties involved in the litigation and prevents this Court from sitting as a court of first and last instance.

Will this hamper Shaik's legal team when they go to the CC with their appeal?

Second, I was struck again by how constitutional issues now permeate all aspects of our law. Chief Justice Langa reminded us in his judgment that when the constitutional issue at play involves the development of the common law, all courts have a responsibility to consider the impact of the Bill of Rights even if it has not been referred to by the parties.

Of, course, how many judges actually take this advice to heart is an open question. I suspect that many judges schooled in a more traditional way of looking at the law does not look at every common law principle invoked before them with fresh constitutional eyes, so to speak.

There are also the rules of precedent which prevents High Court judges from revisiting common law principles developed by the SCA after 1994.

It strikes me yet again that given the fact that all law must be interpreted and developed with reference to the values of the Constitution means that every lawyer and judge in South Africa should pay attention to what the Constitutional Court is saying.

If one has to choose between spending an evening reading judgments of the SCA or the CC (what a delight such an evening will be!), no lawyer should even have to think twice before getting stuck into the CC judgments.

And so, slowly but surely the power and prestige is seeping away from the SCA towards the CC.