The Ramantele case � when elephants fight

The Court of Appeal’s (CoA) Ramantele decision compares, favorably, with the best legal writings to have come out of that court. Its logic is brutal and often, spellbinding. That is not to say that it is altogether flawless.

There is a noticeable logical vacancy between the ultimate declaratory order and the reasoning necessary for its support. Whilst lamenting the erroneous and needless formulation of the constitutional question by Dingake J, Kirby JP, decries the dearth of evidence essential for the ascertainment of firstly, the parameters of the rule of male primogeniture and secondly, its very existence. Tracing the logic of the judgment, it seems inevitable that the existence of the rule and its exact parameters would be either preserved for a special factual enquiry, or sidestepped in favour of a more seamless, alternative finding. In the end, however, a sweeping declaratory ruling is made on the purported rule of primogeniture without the benefit of the proof the lack of which the very judgment decries. To the afore-going extent, the judgment strikes one as gratuitous. The situation is compounded by the fact that the constitutional question upon which its validity could alternatively rest is expressly eliminated for irrelevance.  Whilst the downside of the impugned High Court judgement was on an admittedly erroneous formulation and determination of the constitutional question, that of the CoA judgement is on the pronouncement of an absolute customary law position without the invocation of a factual enquiry necessary for its ascertainment. In the end, as with the impugned judgment, the resolution is correct but the jurisprudence is suspect. The CoA may have done more legislation than parliament would have dared.

Over and above the jurisprudential questions that the judgment espouses, it showcases the inherent tensions that plague our dual legal system and the relative struggles of the judges functioning within the dichotomous jurisprudential environment. Kirby’s J’s ruling urges at the best a reluctance to constitutional adjudication and at worst, its avoidance. We have seen the same attitude expressed in the Rodney Masoko and other judgments. At the opening of the last CoA session the learned Judge President eloquently owned up to this personal judicial philosophy.

Editor's Comment
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