Old guard judges - or are they independent?

The question of whether the state can place justifiable limits on the right of soldiers to collective bargaining as set out in section 23(5) of the Constitution, will be under the spotlight today at the Constitutional Court. The case is not only interesting because it deals with questions on the limitation of rights, but also because it seems to pose questions about the perceived anti-government attitudes of old guard judges in High Courts.

The CC will hear arguments about leave to appeal in a case that started off as three different decisions. Three different judges gave different decisions on essentially the same question and the CC now has to decide which judge was correct.

In the Pretoria High Court Van der Westhuizen (who has since been elevated to the Constitutional Court and will therefore, I presume, not take part in the proceedings) held that the Minister was not obliged to bargain with SANDU and also held, on the facts of the case, that his withdrawal from negotiations with SANDU even assuming he bore a duty to bargain was not unreasonable in the light of the conduct of SANDU’s representatives.

In the second of these judgments, Smit J upheld an attack on eleven specific regulations contained in the chapter of the General Regulations for the Defence Force relating to labour relations and also held that the Minister had a duty to bargain with SANDU.

In a third case Bertelsmann J held that the Minister had a duty to bargain with SANDU (thus agreeing with Smit J) and made an order preventing the Minister from implementing a restructuring programme without first negotiating with SANDU.

In an appeal to the SCA a single consolidated hearing was held and in unanimous judgments the SCA held that that the Minister is not obliged by the provisions of the Constitution or any other law to bargain with SANDU. The individual challenges to the regulations were also dismissed.

It is interesting to note that two judges who could be described as “old guard judges” found against the state, while a new guard judge (Van der Westhuizen) and the SCA found in favour of the state.

It is of course not possible to know for certain what motivated the judges in these cases, but few critical observers would deny that some old guard judges who might never have been animated with a concern for human rights, now often eagerly find that the democratic government is in breach of the Bill of Rights – even in cases where such findings might be a legal stretch.

The CC has often shown that it is acutely aware of the practical consequences of its judgments. It has also tried to balance its need for indpendence and its view of itself as coming to the rescue of the vulnerable and the marginalised on the one hand, with a respect for the democratically elected legislature on the other. Some High Court judges have not shown a similar sensitivity.

Although this is a bit simplistic (there is no space here for a proper analysis of the legal arguments deployed in the various judgments), the fact that the SCA overturned the judgments of the old guard judges, could be read as a sign that the SCA has become politically less conservative over the past 5 years.

For the first 6 years or so, some of the judgments of the SCA led to a very strong perception that the judges in Bloemfontein were antagonistic towards the Constitution and perhaps even towards the new legal order. With an influx of new blood over the five past years, I believe this perception is now slowly changing.

And it is a good thing too. Now they only need to become a bit bolder in developing the common law to conform to the values and spirit of the Bill of Rights, but I suppose one should not expect miracles.