WHEN judges dissent what does it mean for ordinary people? – Mostly very little. But there are occasions when a judgment spelling out why a judge disagrees with the majority can mean a great deal.
Sometimes it’s hard for a non-lawyer to see the point in a dissent: it may seem mere nit-picking, an opportunity for judges to show off their erudition to each other. It can also happen that dissents buzz noisily around the main decision, with a number of judgments that partly agree and partly disagree, creating confusion about what has actually been decided.
And then there are times when a dissent has the full majesty of justice about it, and you know that the minority will be vindicated by history. One United States Chief Justice, Charles Hughes, captured that sense when he wrote that a dissent is ‘an appeal to the brooding spirit of the law, to the intelligence of a future day’, when the dissenting judge might see rectified what he or she believes to be the mistake of the present bench.
Though rare, these moments shine out for decades, even centuries afterwards, as true statements of what justice demands. They may later be incorporated into mainstream judicial thinking and they leave later readers shaking their heads at the original majority and its perceptions.
All this is to explain why people who read judgments look with great interest at dissents, particularly when they come from judges of a country’s highest court. And that in turn explains the interest in Judge Chris Jafta’s dissent this week when the Constitutional Court decided the case of the Government of Zimbabwe against Louis Fick.
Fick was part of a group of farmers who took the Mugabe government’s policy of land expropriation to the highest regional tribunal of the Southern African Development Community, a regional tribunal that was supposed to ensure that all members states respected, protected and promoted human rights, democracy and the rule of law.
Despite losing every case on the issue Zimbabwe refused to give effect to the judgments or to pay costs as ordered. In fact Zimbabwe was later instrumental in effectively killing off the tribunal, a move preventing Fick from taking further action on the expropriation issue via this forum.
However he insists that Zimbabwe pay his costs as awarded by the Tribunal, and has won a series of decisions by South African courts that certain Cape Town property owned by the Zimbabwe government should be sold to settle its debts.
Zimbabwe then approached the Constitutional Court hoping it would overturn these decisions. All the members of that court, however, signed off on a major human rights decision this week agreeing that Zimbabwe’s property should be sold off to pay Fick’s legal costs. All, that is, except for Judge Chris Jafta, who wrote a dissenting judgment.
On what grounds, a reader would surely ask. Did he disagree that Zimbabwe’s property should be forfeit? Was he the only judge to hold that Fick had no remedy against Zimbabwe’s flouting of the Tribunal’s decisions? What would that mean about Jafta’s views on human rights and on the Constitutional Court’s duty to uphold decisions of another legal forum? Did he not believe, like the rest of his colleagues, that once the Tribunal had given its judgment ‘Zimbabwe was duty-bound to assist in the execution of that judgment and so is South Africa’?
Fortunately this is not his view; in fact you could say it’s just the opposite. Judge Jafta’s position is that Zimbabwe advanced no new grounds to overturn the decisions of the High Court and the Supreme Court of Appeal and so the Constitutional Court should not have accepted to hear Zimbabwe’s appeal in the first place.
He reminds the reader that two conditions must be met before the Constitutional Court will consider hearing a case: it must both involve constitutional issues and be in the interests of justice to do so. Fick’s dispute involved constitutional issues, said Judge Jafta, but Zimbabwe had not even tried to show it was in the interests of justice for the court to consider the matter.
No new answers had been given explaining Zimbabwe’s ‘deliberate indifference’ to South African court procedures. There were no prospects of success at the Constitutional Court, he said, and the decisions of the High Court and the Supreme Court of Appeal should thus be allowed to stand.
Not one of history’s great dissents perhaps, but one from which Zimbabwe can take no consolation.