The Ramantele case � when elephants fight

Kgosietsile Ngakaagae | Friday June 2, 2017 15:17

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.

On the other side, Dingake J, whose judgment was under scrutiny, belongs to a school of thought anxious for jurisprudential development and legacy building through constitutional adjudication. That explains the seeming excitement in the face of the constitutional question. Against an all-powerful CoA he cuts the figure of a man who stands at the ocean trying to sweep back the tide.

Thus, the Ramantele case does not merely epitomise a supposed tension between laws but a collision of jurisprudential schools of thought and egos. It epitomses an older generation of jurists fighting for the survival of an legal era it has lived for and a younger generation excited by transformative jurisprudence south of our borders. One side sees the constitution as mainly transformative and the other, as mainly preservative. Undoubtedly, the transformative power of constitutional law, is of greater significance to common law based adjudication which, regrettably, is the position espoused by the CoA ruling. Years ago, in the Tshubalebone case argued before Dingake J, I contended, for the state, that the courts should be slow to decide cases on constitutional premises where such may well be resolved on equally dispositive non-constitutional grounds. That is the same position espoused by the Co       A in the case under reference. Dingake J was persuaded to steer clear of the constitutional point but expressly lamented the wasted opportunity for law reform and development.

The avoidance approach has the natural consequence of jurisprudential and societal retardation. Rare cases of transformative potential are more likely to be resolved purely as private matters between concerned parties with no wider, societal value. Kirby J’s school of thought has the advantage of unreasoned but established judicial precedent and structural supremacy. As a result, Dingake J’s philosophical camp does not get a fair hearing. A time may have come for the logic of this default position to be revisited. The need is especially pronounced in our social context where a significant fraction of the population are affected, directly or indirectly, by the customary law.  All law must continually be examined through the prism of the constitution for ascertainment and but for irrelevance, no opportunity to do so should be lost. The contrary argument would precipitate not only the ossification of the law but preserve societal injustice through deference to the status quo and negates the living tree metaphor oft-embraced in constitutional adjudication.

The highlighted philosophical tensions between the judges may be happening at great expense to the public interest. Our dual legal system betrays a nation torn between its past and its future but with no will to develop in either direction. The avoidance approach, however eloquently expressed, is of no societal value. The constitution must lead the process of adjudication. It should not just be a reference document against which laws are occasionally checked for validity. By reason of its plurality, the customary law lacks both the systemic capacity and pace for uniform and beneficial development. Both philosophical camps may have their reasons. That does not subtract, however, from the fact that he judiciary is in a philosophical war with itself.