On the discipline of rules and the ill discipline of Braamfontein

When, writing in the South African Law Journal in 2018, then Mr (now Dr) Leo Boonzaier wrote that certain judgments of the Constitutional Court gave the impression ‘of a court that not only reasons badly, but no longer cares to reason well,’  many of us said he was being overly harsh and uncharitable about the state of the Court then. I doubt that many of us would hold the same view today.

On Friday, the Court handed down judgment in Ledla Structural Development (Pty) Ltd and Others v Special Investigating Unit [2023] ZACC 8. The principal question in that case was whether the Special Tribunal established in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996 was a court and whether it possessed the ability to exercise the power to set aside executive conduct as constitutionally invalid  in terms of s 172 of the Constitution. It took the Court 10 months to deliver judgment, a fact that will surprise you once you find out what’s in store.

I will not belabour the factual background to the case. Suffice it to say, Ledla was one of the many beneficiaries of the unscrupulous procurement practices of the Gauteng Department of Health in the procurement of personal protective equipment (PPE) at the height of the COVID-19 pandemic. Following media reports on the conclusion of two contracts for the supply of PPE by Ledla, the President issued a proclamation authorising an investigation by the Special Investigating Unit (SIU) into allegations of maladministration, corruption and breaches of procurement regulations at the department. The SIU’s investigation revealed that Ledla had been paid at least R38.7m as a result of the unlawful contract and the SIU approached the Special Tribunal seeking, among other things, an order reviewing and setting aside the contract concluded between Ledla and the department on the basis of its unlawfulness. It also sought a forfeiture order for the amounts paid to Ledla under the contract.

Ledla resisted the SIU’s application on several grounds, notably that the Special Tribunal was not a court and thus did not have the power to review the impugned contract or the power to set it aside as constitutionally invalid (or unlawful). The Special Tribunal (per Mothle J) found for the SIU. On the question of whether the Special Tribunal was a court, it held that although it was a ‘sui generis’ (unique) institution, it performed the functions of a civil court. In addition, its decisions were appealable only to a Full Court of the High Court or the Supreme Court of Appeal and were thus on par with decisions of a single judge of the High Court sitting as a court of first instance. Therefore, Mothle J concluded, the Special Tribunal fit the ‘description’ of a court in s 166(e) of the Constitution and on that basis he declared the contract unlawful and set it aside.

Before the Constitutional Court, Ledla persisted in its argument that the Special Tribunal was not a court and could not adjudicate judicial reviews which, it contended, was a power vested in the High Court. In particular, Ledla argued that both the review and forfeiture orders granted by the Special Tribunal were a nullity since only a court could grant them and it, not being a court, had been incompetent to do so. It also argued that courts and tribunals had different powers and that tribunals were much more limited in their scope of powers than courts and could only exercise those powers and perform those functions conferred upon them by law. It also argued that the establishment of the Special Tribunal — by the President through proclamation — essentially granted the President unfettered discretion to create a court, something that Parliament could not have intended.

Importantly, Ledla’s argument went further. It contended that the Special Tribunal could never have the power to entertain judicial reviews of administrative action or any exercise of public power. I will return to this argument later.

The SIU on the other hand maintained that the Special Tribunal was a court, arguing that its power to decide reviews was not determined by its status as a court but by interpreting its powers under the SIU Act and the regulations. It argued too that there was nothing in the Constitution that precluded the Special Tribunal from ‘exercising review powers, setting aside tender awards and/or making forfeiture orders’. But beyond that, it contended that the Special Tribunal was indeed a court, that it fit the description of ‘any other court’ in s 166(e)  because it qualified as ‘a court established in terms of an Act of Parliament’ (being the SIU Act) in terms of that provision. The SIU also contended that the members of the Special Tribunal were adequately independent as required under s 165(2). Additional factors were the fact that it performed similar functions to a civil court, the public nature of its proceedings and the effect of its decisions.

Before we go any further, I must disclose two things. One, that I’m a nerd (you knew that already) but two, that I have been obsessing about the status of the Special Tribunal for a good few months now. So I appreciate that many won’t care about this decision as much as I do, but I ask, as always, that you please humour me.

This judgment is . . . something. Recall that it took 10 months for the Court to hand it down. It was unanimous: no noted dissents or concurrences which differ on reasoning but agree on the outcome. For a unanimous Court, Mhlantla J held that the Special Tribunal is not a court for the purposes of s 166(e) of the Constitution, holding that it does not apply to tribunals. The Court noted that the Special Tribunal is ‘established and constituted on an ad hoc basis’ by the President, who also has the sole power to refer matters to the SIU for investigation and concluded that these were not the features of a court of law. The Court also pointed out that the Special Tribunal’s jurisdiction was restricted to civil proceedings arising out of SIU investigations and that while some of its members were judges, some of them could be appointed from the ranks of acting judges, magistrates and practising advocates or attorneys who did not enjoy security of tenure. It concluded, for these reasons, that the Special Tribunal is not a court.

So far so good. The Court’s reasoning on this point is surprisingly thin and does not sufficiently ground the finding in constitutional law. The Court had an opportunity to fully grapple with the nature and limits of judicial authority and the place of courts as constitutive institutions of the state under the Constitution. Indeed, it is not just that the SIU Act does not establish the Special Tribunal as a court that renders it not a court, there are other reasons entailed by the constitutional text in ss 34, 165, 166, 170 and elsewhere that account for why an institution like the Special Tribunal can never be a court. Alas, I digress. The reasoning is thin, yes, but the ultimate conclusion is indeed correct and inoffensive.

The holding that the Special Tribunal is not a court has significant implications for some of the other arguments advanced both by Ledla and the SIU, and the Court was alive to this. It moved on to consider whether, despite not being a court, the Special Tribunal could nevertheless have review powers. On this point, Ledla argued quite forcefully that the Special Tribunal could not have any review powers whatsoever. Firstly, in terms of the Promotion of Administrative Justice Act  3 of 2000 (PAJA) only courts and tribunals can judicially review administrative action. Since the Special Tribunal is not a court, what remained to decide was whether it was a tribunal for the purposes of PAJA which defines a tribunal as ‘any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action’ under its provisions. The Court held that it could not; that ‘the Special Tribunal has no power to adjudicate a review of administrative action under PAJA’ because the definition of tribunal in s 1 of PAJA precluded it from doing so.

Right. Now we take a sharp left turn into the great, wild, unknown. What about legality or, rather, s 1(c) ‘rule of law’ reviews? The Court begins with its recent judgment in Group Five where it was faced with the question whether the Competition Tribunal had the power to decide legality reviews to the exclusion of the High Court, under whose jurisdiction such matters ordinarily fall. The Court said ‘No’, explaining that:

‘[The Competition Tribunal] is a creature of statute, limited in the exercise of its powers to those afforded to it within the four corners of the [Competition Act]. Absent any express powers in the Act to do so, the Competition Tribunal has no authority in law to review the lawful exercise of public power.’

In this case, the Court considered that the Special Tribunal was in the same position as the Competition Tribunal. That is, the Special Tribunal could only have the power to conduct judicial reviews if it was empowered by the SIU Act to do so. In this regard, the Court considered the wording of s 8(2) of the SIU Act which empowers the Special Tribunal ‘to adjudicate upon any civil proceedings brought before it’ and concluded that ‘the wide language employed in that section (“any civil proceedings”) points to the power of legality review not being excluded from its power to adjudicate civil proceedings.’

The Court then turned its attention to the preamble and s 4 of the SIU Act, holding that its objective is, inter alia, ‘the establishment of structures, including the Special Tribunal, to address the rampant corruption in all forms of malfeasance in our country.’ On this point, the Court concludes thus:

‘[I]t is clear that the legislative intention was to cast a wide net over the scope of the proceedings the Special Tribunal is empowered to adjudicate upon. Therefore, a legality review is not excluded from the ambit of the jurisdiction of the Special Tribunal as there is no carve-out of the powers of the Special Tribunal to adjudicate over civil proceedings.’

Rounding off this point, the Court distinguished the Special Tribunal’s position from that of the Competition Tribunal in Group Five, saying that it was ‘diametrically different’ because, unlike s 62(2) of the Competition Act which limits the review powers of the Competition Tribunal, there was no comparable provision in the SIU Act. The upshot of this reasoning being that ‘the Special Tribunal has the jurisdiction to adjudicate reviews brought by the SIU and to grant an order setting aside an unlawful procurement contract.’

This is a strange reading of Group Five. Let me explain. Central to the ratio of Group Five is the holding that reviews of public power, whether in terms of PAJA or the principle of legality, are constitutional matters that fall within the jurisdiction of the High Court in terms of s 169(1)(a) of the Constitution and that the jurisdiction of the High Court can only be ousted by clear statutory text or ‘by necessary implication from the statute’s provisions’.

Indeed, Majiedt J made the point that questions about the lawfulness of the Competition Commission’s conduct that were before the Competition Tribunal  ‘are questions of vires or legality, issues which typically fall within the ambit of the jurisdiction of the superior courts’. So while the Court in Ledla now reads Group Five as authority for the proposition that a tribunal’s power to adjudicate judicial reviews (in terms of the principle of legality) depends on whether or not its governing statute contains a carve-out or an exclusion of that power, that is plainly wrong.

The Court in Group Five actually endorsed the opposite view; namely that unless a statute explicitly (or by necessary implication) vested the judicial review power in a tribunal, such power vested in the High Court as of right (see para [60] of Ledla). In other words, a court determining whether or not a tribunal has powers of review must ask whether the relevant statute empowers that tribunal to adjudicate legality reviews but not whether the statute does not expressly exclude that power. We are to assume that the power does not exist because it is not conferred but not to conclude that it exists because it is not excluded.

The Court’s reasoning in Ledla then obviously turns Group Five on its head. But there’s another problem. The Court’s stated reason for holding that the Special Tribunal has review powers stems from its reading of the broad language used in s 4(1)(c) of the SIU Act. The Court concludes, without any reasoning, that ‘the Special Tribunal has the jurisdiction to adjudicate reviews brought by the SIU and to grant an order setting aside an unlawful procurement contract.’

According to the Court, the power of the Special Tribunal to decide judicial reviews entails the power to set aside unlawful procurement contracts. Stated differently, that it entails the Special Tribunal’s power to issue declarations of unconstitutionality. This is for two reasons. First, any ‘unlawful procurement contract’ would be a contract that does not, or whose conclusion did not, comply with s 217 of the Constitution. It would be a constitutionally invalid procurement contract. Second, the power to declare a procurement contract constitutionally invalid is not an implied power that exists by virtue of legality review. Instead, it is an express power that is vested in the courts by s 172 of the Constitution.

The Court’s unreasoned conclusion that the Special Tribunal has this power is untenable, on the judgment’s own terms. Firstly, the Court’s holding that the Special Tribunal is not a court plainly places it beyond the scope of s 172 since that provision applies to ‘a court’ deciding a constitutional matter. Secondly, a legality review (or a s 1(c) review) requires the exercise of the s 172 remedial power in the event of an inconsistency between the Constitution and the impugned conduct. There is no self-standing floating power to invalidate conduct as unconstitutional that is unmoored from s 172 that applies to reviews under the principle of legality. Since that power is reserved for courts, the Special Tribunal does not have it. Thirdly, the Court’s way of getting around this — by reading into the broad language of s 4 of the SIU Act (which governs a statutory tribunal) powers that are conferred by the Constitution on courts — is legally impermissible and makes nonsense of both the provisions of the Constitution and of the SIU Act. It is not interpretation but legislation of an offensive kind.

Surely the Court is aware of this? Oh, it is. But there’s of course a straightforward explanation for what happened in this case: the Court did not like the outcome that followed from the application of the law. I have said it previously, and many others have said it more intelligently, that the Court is so preoccupied with the outcomes of cases that it is willing to forego sound legal reasoning for the attainment of the right outcome in any given case. Consider its even stranger judgment in Rafoneke last year.

This affinity for outcome-based reasoning comes at sometimes a great cost. The judgment in Ledla has some far-reaching implications. The Court essentially rendered its holding that the Special Tribunal was not a court entirely hollow by Trojan-horsing the s 172 remedial power through its reading of the potentially over-broad legislative text. This means that the Court accepts that the Executive can set up adjudicative bodies outside of the judicial branch that have substantively the same or similar powers as courts of law, with no express legal authorisation to speak of. Why is that offensive? Well, for starters, it defeats the purpose of the separation of powers; principally the idea that the implementor of a law should not also have the power to interpret what that law means (because they can give it any meaning that achieves their implementation goals).

But also, consider the SIU Act. Section 2(1)(b) empowers the President to establish a in order Special Tribunal to ‘adjudicate upon civil proceedings emanating from any investigation’ of the SIU. On the other hand, s 4(1)(c) empowers the SIU to ‘institute and conduct civil proceedings in a special tribunal or any court of law’ and it may do so on behalf of any state institution, on the basis of its own investigations or for any interest of its own, and which investigation happen only at the instance of the President. When seeking to recover any damages or to prevent loss for a state institution, the SIU has the power to act unilaterally in the place of that institution.

Couple this with the fact that the Special Tribunal now has review powers, it begins to sound a lot like unbridled self-review for organs of state. The SIU is almost certainly dominus litis in all civil proceedings that emanate from their own investigations. I may be needlessly suspicious of the SIU but this just doesn’t sit right with me. The temptation to overlook all of these rule of law niceties in order to fix our broken state by any means necessary is real. But we must resist it. To paraphrase Sir Thomas More, we should insist on giving even the devil the full benefit of the law.

I am more concerned, however, about the Beloved Court on The Hill. The judgment in Ledla represents what is increasingly becoming a trend of the Court deciding cases apparently unmoored from any legal constraints; fashioning new legal rules, completely ignoring existing ones or attempting to circumvent their application. In essence, it represents a court that has abandoned the discipline of rules.

Those of us who insist that courts should be constrained by rules and that legal reasoning must take place within the confines of rules often get labeled as formalists, positivists, or whatever new pejorative is en vogue. All that for simply insisting that the law must guide and constrain judges’ conduct, that they do not possess an all-things-considered discretion to decide cases however they want. But rules are not rules for rules’ sake. They serve the achievement of the rule of law as captured by Lon Fuller’s famous desiderata: first that there are rules, that they are public, accessible, clear, non-retrospective, avoid the impossibility of their application, do not change frequently, and ensure consistency between their wording and their administration.

The Court’s treatment of its own established rules in recent times (Group Five and  Ledla included) seems to point to a penchant for actively avoiding the results borne by the demands of the rule of law, through the evasion and/or contortion of those very rules. This should concern us all. The raison d’être for the rule of law is that the law, and not men, should rule, yet the Court’s tendency to prefer outcomes dictated by its own policy concerns over those that flow naturally from the application of the legal rules (especially posited ones) that govern the cases before it seems to suggest otherwise.

It took the court 10 months to produce a judgment, suggesting that perhaps the final product is one of compromise. I am all for compromise, but not when it produces judgments that are logically irreconcilable and legally incomprehensible. It’s a bad look for the Court, for the law, and for all of us who care.