What has gone wrong with South Africa's Constitutional Court?

For many years, our Constitutional Court basked in glory. It was lauded worldwide. Its judgments were studied in legal academies around the world. Many of our judges were in demand to teach seminars on the court's enlightening and rich jurisprudence. Our citizenry has been so preoccupied with inept and corrupt government that we have been inattentive to the performance and at times sloppy jurisprudence emanating from our highest court. The recent directive and rehearing of the incarceration of former president Jacob Zuma, calling on the parties to make submissions on the implications of the International Covenant on Civil and Political Rights (ICCPL), is a wake-up call.

Jurists look not only to the result of a court decision, but more importantly to the quality and depth of reasoning, even if one disagrees with the result. Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench.

One decision is worth highlighting to forewarn of the problem and danger of the Constitutional Court pursuing the same trajectory in the Zuma matter. In the New Nation case, the court was faced with the question whether individuals had the right to contest national elections outside the framework of a political party. The collective bench of a possible 11 judges took more than nine months to deliver its decision. The majority purported to invoke international law and ruled that an individual has a right to contest elections outside the framework of a political party. No other international tribunal or court has reached this conclusion. The majority decision apparently derived its conclusion from a litany of excruciatingly painful, non sequitur quotations not even remotely related to the issue at hand. This, like lower court judgments based on distorted ramblings, has become, justifiably, an object of scorn.

Making things up from thin air based on the personal predilections of the judges, the Constitutional Court is haemorrhaging into seminal lower court decisions. To reference just two examples — the recent Western Cape decision by judge Elizabeth Baartman setting aside and rewriting part of the parliamentary rules on the impeachment of the public protector and the invalidation of the lockdown rules by judge Norman Davis in the Gauteng Provincial division that was subsequently overturned by the Supreme Court of Appeal (SCA). These decisions are not by any means supported by legal principles and cogent reasoning, but seem instead to be based on the personal predilection of the judges. These inept decisions negatively impact the national and political mood and create chaos and insidious harm until corrected on appeal. Alas, our apex court being on the same path does not engender trust or confidence and our constitutional project is in jeopardy.

Though the judiciary, with former chief justice Mogoeng Mogoeng's derelict leadership, has been running rough for a while, the check-engine light has now come on. The latest Zuma indecision, calling for evidence to be led on the ICCPL, has moved the court into cartoonish territory, raising questions about the collective competence of the bench. And its reputation as the guardian of the constitution.

The principle of res judicata, that a matter should not be re-litigated once a final decision has been rendered, is a bedrock of constitutionalism. The court rules allow the Constitutional Court to reopen a matter in the interests of justice in exceptional circumstances. These would warrant a new set of facts, which were not present at the time the original decision was rendered and which would materially impinge on the dispute. This is not so in the Zuma case. If the former president falls ill or his age becomes a matter of concern, he must apply for parole. If parole is denied, he can approach a court.

The court has asked the parties to lead evidence on the ICCPL without giving any reason. This would be troublesome in itself, but is made worse without proffering any reason. Moreover, this is a question of law. If the ICCPL had any legal bearing on the dispute, the court should have considered it at the original hearing or called for submissions before sentencing. In democratic practice, there is no precedent for a tribunal to rehear a matter within a few weeks of its decision and, worse, on a matter of law made more objectionable in the absence of reasons.

To be clear, and of greater concern, there is no pronouncement by any tribunal that remotely suggests the ICCPL confers sympathy on a contemptuous and unrepentant individual who scoffs at a court decision. So why would the court ask for submissions on the ICCPL? The court's decision in the New Nation case displayed what is largely regarded as a dangerous propensity to manipulate and distort international law and thumb-suck a rule based on the judge's normative judgment. One can but hope the court is not about to spring another thumb-sucking rule from the ICCPL in the Zuma rehearing. To reopen a matter decided just a few weeks before, especially on a question of law, may well amount to judicial malpractice.

The major development since the court's original judgment and the subsequent incarceration of Zuma was the wave of violence that engulfed parts of the country. That is no reason for a court to rehear a matter. The rule of law is not about judges making political calls like umpires in a ping-pong match being played in a contested political windstorm.

Motala is professor of law, Howard Law School, US.