Abstract

Keywords

Froneman J; judges; dissent; collegiality; Constitutional Court; South Africa.

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1 Introduction

South African Constitutional Court judges not only sit at the apex of the judiciary 1

 Felix Dube. LLB (UV) LLM LLD (NWU). Postdoctoral fellow: Department of Mercantile and Private Law, School of Law, Faculty of Management, Commerce and Law, University of Venda, South Africa. Email: felix@fdube.co.za. ORCiD: https://orcid.org/0000-0002-6490-4629.

1 See s 167(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

The cases discussed in this paper show that Justice Froneman's approach to collegiality and dissent placed him in a unique position in which he demonstrated the need for the Court to function as a cohesive unit to resolve conflicting judicial viewpoints through reasoning, discussion and debate. His insistence on understanding the proper context of issues, finding the relevant facts and synthesising opposite viewpoints was particularly pronounced when the Court faced cases involving potentially divisive moral and ideological questions. Cases that touched on the country's contested political history and the proper role of the Court in a constitutional democracy further provided him with the platform to strike a balance between dissent and collegiality, thereby showing that tensions between

unity and diversity among judges can be resolved amicably and that doing so would positively contribute to the evolution and development of the Court's jurisprudence.

This paper explores collegiality and dissent in the Constitutional Court in general and with reference to Justice Froneman in particular. The paper begins by contextualising procedural mechanisms through which the Court arrives at its decisions. This analysis helps to pinpoint the exact stage(s) at which dissents emerge. It is also necessary to provide the relevant background for the examination of the political, moral and ideological roots of dissents. The second part of the paper argues that when judicial officers face cases of significant constitutional and historical interest and which have political, economic and social implications, they are likely to disagree on the interpretation and application of the law and the correct remedies. The disagreements could flow from the moral and ideological positions of judges, as well as their personal histories. The third section of the paper considers the value of dissents in general and from Justice Froneman's viewpoint in particular. It also discusses the possibility of reconciling dissent with collegiality by using specific examples from Justice Froneman's judgements. The last section concludes the paper.

2 The Court's decision-making process

Like its counterparts across the globe, the Constitutional Court of South Africa reaches its decisions by simple majority through a decision-making process guided by universally accepted principles of judicial collegiality and dissent, which require judges to agree and disagree on substantive and procedural aspects of cases before them if the need arises. 6

6 Sachs We, the People 179.

Publicly available information shows that the Court decides cases through a process regulated by its Rules, which must conform to section 167(2) of the Constitution. This section mandates a quorum of at least eight judges for any matter before the Court to ensure that it is not left to less than eight judges to decide a matter. Although the Court has 11 judges, not all of them sit in every matter for a variety of reasons, such as leave of absence and recusal. Regardless of how many judges sit on a matter, there is a likelihood that not all of them will agree on the interpretation of the facts, the applicable

legal principles and the appropriate remedy in each case. This is one of the causes of judicial dissent, as explained further below.

The Court decides on two main types of cases: appeal matters from either the High Court or the Supreme Court of Appeal and applications for direct access to it. 8

8 See Part VIII of the Rules of the Constitutional Court.

The second set of matters decided by the Court pertains to cases that it refers to oral hearing. The Chief Justice and his deputy compile the Court's role of all matters which the judges decide to refer to oral hearing. This list is published ahead of time and is accessible to the public. 12

12 See, for instance, Constitutional Court of South Africa date unknown http://hdl.handle.net/20.500.12144/38257.

After the hearing, which is held in open court and in which counsel for all parties are afforded opportunities to address the Court and answer questions, the matter will be adjourned for decision. Within a week after the hearing, the scribe would circulate an electronic post-hearing note stating a position on whether the appeal should succeed and, if so, to which extent and why. Other judges would respond electronically, also stating their positions, after which a judges' conference will be held in which the other

judges air their views on the scribe's approach. 15

15 Moseneke All Rise 122.

Before going into details about the writing of separate judgements, it is imperative to further consider several options which other judges have in response to a draft judgement circulated at a judges' conference. 19

19 The Chief Justice, as the head of the Court, directs its operations, allocates cases and performs other administrative functions. In the absence of the Chief Justice, the Deputy Chief Justice performs these functions. When both the Chief Justice and the Deputy Chief Justice are not available, the Acting Deputy Chief Justice performs the functions of the Chief Justice. S 175(1) of the Constitution provides that the President may only appoint an Acting Deputy Chief Justice from judges serving at the Court and may only do so after consultation with the Chief Justice and Cabinet. The powers conferred by s 175(1) of the Constitution have been recently exercised by the President due to the absence of the Chief Justice on other engagements and due to absence of the Deputy Chief Justice, Zondo DCJ owing to his engagement at the Judicial Commission of Inquiry into Allegations of State Capture.

who sat on the case appear at the beginning of the judgement, while the end of the judgement will usually set out the majority and minority judges. 22

22 Moseneke All Rise 142.

Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J and Yacoob J concur in the judgement of Froneman J. 23

23 See S v Thunzi (CCT 81/09) [2010] ZACC 12 (5 August 2010) 8.

In rare instances, all the judges may write separate judgements (on direction by the Chief Justice) and concur with the order of the "Court". This route is unusual, although it was used in the Court's watershed judgement in S v Makwanyane, in which all eleven inaugural judges of the Court wrote separate judgements and concurred in a consolidated order by the Court. 24

24 S v Makwanyane 1995 6 BCLR 665 (CC) (hereafter Makwanyane).

However, the judges do not always agree on the interpretation of the facts, the application of relevant legal principles and the appropriate remedies. Disagreements between judges arise because it is impossible for all the judges to always reach a consensus, particularly on contentious questions of principle, law, morality and politics. At times, only one, two or three judges disagree with the majority. This leads to the second option, in which the judge who disagrees writes a separate judgement, spelling out his or her reasons for differing. 25

25 Moseneke All Rise 122.

Paradoxical as it may appear, I concur in the judgement of Moseneke J on the one hand, and the respective judgements of Ngcobo J and Mokgoro J, on the other, even though they disagree on one major issue and arrive at the same outcome by apparently different constitutional routes. As I read them the judgements appear eloquently to mirror each other. In relation to philosophy, approach, evaluation of relevant material and ultimate outcome, they are virtually identical. In relation to starting point and formal road travelled, they are opposite. 26

26 Minister of Finance v Van Heerden 2004 6 SA 121 (CC) para 135. In this case Sachs J observed that the majority ruling advanced affirmative action, while the minority opinions applied the principles of non-discrimination. Despite these differing approaches, he said that all judgements ultimately arrived at the same conclusion and expressed the belief that this convergence was not a coincidence but rather a reflection of a common underlying constitutional principle. He further argued that this principle suggests that the distinctions between the majority and minority opinions should be removed in order to better understand the similarities and commonalities between them. Doing so, he said, is mandated by the Constitution and would resolve any apparent contradictions between the judgements and allow for a clearer

Other judges (the minority) can join a dissent. When the Court splits due to dissent, the majority order is authoritative because in a democracy the majority rules. In response to dissent, some of the majority judges may write concurring judgements to explain their views in support of the main judgement (the majority judgement), whereas in most instances judges simply note their concurrence. In extraordinary cases, a judge may write a concurring judgement to address contentious issues raised in a dissenting judgement, as Froneman J did in Economic Freedom Fighters II. His separate judgement was written solely to respond to Mogoeng CJ's statement that the majority was overreaching on the political terrain and to affirm the need to accept differences of opinion. 27

27 Economic Freedom Fighters v Speaker of the National Assembly 2018 2 SA 571 (CC) (hereafter Economic Freedom Fighters II) para 279.

Regarding dissents, the mandatory coram of at least eight judges to sit on any matter places the Court in awkward positions when eight judges sit on a matter and four of them dissent. This is rare but not surprising. Although the Court's practice is to have an odd number of judges (nine or eleven) to prevent even splits, the Court is not required by the Constitution to have an odd number of judges on a case. In Jacobs v S, 28

28 Jacobs v S 2019 5 BCLR 562 (CC).

The third option is for one judge (or more) to concur with the whole or part of an order of the majority judges 31

31 See, for instance, President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC) (hereafter Hugo) para 61 in which Didcott concurred in the majority judgement "[f]or the reasons given by me, and for those alone". Kriegler J also partly concurred with the majority and dissented on one aspect of the Court order – see paras 156-204.

some aspects of their reasoning. When a judge partially disagrees with the interpretation of the facts and the applicable legal principles by the Court, he/she may deem it essential to write a concurring judgement. 32

32 See arguments in concurring judgements in Du Plessis v De Klerk 1996 5 BCLR 658 (CC) paras 68 and 147.

3 The normative foundations of Froneman's dissents

There are many reasons for dissent, such as disparate interpretations of facts and the law by judges in individual cases. These differences potentially arise from political, moral and ideological questions which the Court must answer. Also, the judges differ due to the interests at stake, some of which are difficult and controversial to articulate due to the political and historical contexts underlying such cases. 35

35 See AfriForum v University of the Free State 2018 4 BCLR 387 (CC) (hereafter AfriForum v University of the Free State) and Daniels v Scribante. However, in Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch 2020 1 SA 368 (CC) (hereafter Gelyke Kanse) paras 64-98, Froneman J concurred in a unanimous judgement which confirmed the relegation of Afrikaans as a medium of instruction at the University of Stellenbosch. The concurring judgement was (as expected) in Afrikaans (with English translations).

appeals against the grant of temporary interdicts". 37

37 Street Naming case para 80.

[T]hat any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression. 38

38 Street Naming case para 81.

He further argued that:

The oppressive history is there. But the constitutional discountenancing of a cultural history many continue to treasure has momentous implications for a substantial portion of our population. It invites deeper analysis. 39

39 Street Naming case para 81.

The second case, Afriforum v University of the Free State, is important in understanding Froneman J's approach to the adjudication of historically and politically sensitive cases. While in the Street Naming case he dissented because of the procedural impropriety of hearing appeals against temporary interdicts, he dissented in the second case because the majority refused to grant leave to appeal and to set the matter down for hearing, thereby compromising the legitimacy of the outcome of a crucial case. 40

40 AfriForum v University of the Free State para 82.

This is a dissenting judgement that concerns language. It is best to acknowledge and take responsibility for "one's own ideological positioning within the disciplinary constraints and commitments of one's craft." My home language is Afrikaans and I went to a parallel medium of instruction school in Bloemfontein. That inevitably colours my perspective – as their own different backgrounds do for that of my colleagues – but the hope is that rational and critical self-reflection keeps our individual subjectivity at bay in pursuit of detached legal reasoning. 41

41 AfriForum v University of the Free State para 84 (references omitted).

In saying this, Froneman J was calling for the reasoning of the issues in a way that would enable the Court to frankly face and resolve the issues before it. His call for granting leave to appeal and to set the matter for hearing was a plea for a proper engagement with the merits of the case to ensure that the outcome of the case would be legitimate in the eyes of the public. Although he disclosed his obvious personal and historical connection to the case arising from his Afrikaans roots, Froneman J also highlighted that it was not him alone with such a connection to the case because the rest of the Court – composed of a majority of black judges who had been affected by colonialism and apartheid – had an obvious interest in the future of Afrikaans, which many perceive as the oppressor's language. In his

dissent, Froneman J doubted if it was for the Court, and not the public, to decide whether it was "better for the country to concentrate on the inclusiveness that English might bring as the sole language of instruction" 42

42 AfriForum v University of the Free State para 127.

In a subsequent language case, Gelyke Kanse v Chairperson of the University of Stellenbosch, Froneman J concurred in the majority judgement because he was bound by the majority in the first case but wrote a separate concurring opinion as "a cautionary tale". 44

44 Gelyke Kanse para 65.

Froneman J's dissents (and concurrence) in the two language cases, read together with the Street Naming case, illustrate that matters tied to history are inherently political and that they could be the main cause of a judge's dissent in a particular matter. In several cases, the Court's judges acknowledged the political nature of some of the cases which it has decided. 47

47 See Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC) (hereafter Economic Freedom Fighters I) para 43; S v Lawrency; S Negal; S v Solberg 1997 4 SA 1176 (CC) para 42.

argue that such a political approach is necessary and unavoidable, given that the law is not detached from the influence of politics, religion and history. In fact, the law-making process is itself political – as bills are proposed by Members of Parliament (who are politicians) to achieve political outcomes. An example in this regard could be the Expropriation Bill, 48

48 Expropriation Bill [B23-2020].

At this point, it may be necessary to contextualise what is a political matter and what political judicial reasoning would entail to avoid confusion. Despite there being no ambiguity on the lexical meaning of the term "political", it has not always been clear what judges perceive to be a political dispute. The Court defines a political dispute as "a matter which has a political bite to it" 49

49 Economic Freedom Fighters v Gordan; Public Protector v Gordhan 2020 6 SA 325 (CC) para 97.

Dissents seem to arise in political matters because politics is always tied to South Africa's contested history. In political cases with a historical flavour, dissents reveal ideological backgrounds and provide a glimpse into the "political alignment" of the judges. 51

51 See Kelemen Judicial Dissent in European Constitutional Courts 2.

admonished political actors to resolve political disputes politically instead of bringing such disputes to the Court.

However, it is important to note that although the Court decides political disputes, judges should not be seen to take partisan positions on such issues, even though there is no guarantee that they will not. 54

54 Section 165(2) of the Constitution stipulates that the courts "are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice". This provision seeks to eliminate political partisanship.

Hence, the distinction between a partisan political judgement and a judgement that generally affects politics is in the judge having a horse in the race or a personal interest in the matter. An example, in this case, is Secretary of the State Capture Commission v Zuma, 56

56 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma 2021 5 SA 327 (CC) (hereafter Secretary of the State Capture Commission v Zuma).

The influence of the historical circumstances of judges in judicial decision-making is not peculiar to Justice Froneman – in relation to the two language and Street Naming cases. For instance, Sachs J admitted that when he

decided Port Elizabeth Municipality v Various Occupiers, 59

59 Port Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC).

The first and second judgements remind us all – and remind white people in particular, people like me, lawyers who grew up with the benefits, both accumulated and immediate, of their skin colour in a society that deliberately set out to privilege them, white people who are still the majority in the profession and probably still the majority readers of these reports – that the past is not done with us; that it is not past; that it will not leave us in peace until we have reckoned with its claims to justice. 61

61 Daniels v Scribante para 154.

A contextual analysis of Cameron J's concurring judgement shows that he would not have concurred in the majority judgement were it not for his conscience, which told him that not doing so would entrench the injustices of the apartheid regime. His concurring judgement was a compromise between the harsh realities of the law and the plight of poor people who stood to lose their homes. The same can be said of Sachs J's judgement in which he could not come to terms with the idea that poor people, whose poverty came because of deliberate impoverishment by the apartheid regime, had to vacate their modest homes, which they had built on vacant land owned by beneficiaries of apartheid who already owned comfortable homes elsewhere. 62

62 Sachs We, the People 211.

Although laudable for considering contextual factors, making judgements based on individual historical circumstances may seem to compromise the standards of impartiality expected by the public from the judges and demanded by the Constitution. Sachs J realised that his historical circumstances influenced his judicial mindset which was why, at some point, he entertained the thought of resigning so as not to break his oath of office to decide matters without fear, favour or prejudice. 63

63 See Sachs We, the People 211.

said that he was able to bring his duty as a judge to the fore "to shut the door on my personal prejudice in favour of fidelity to the law". 66

66 Moseneke All Rise 121.

Whether it is impossible for judges to set aside their individual histories and moral, ideological and political positions for the greater good of unbiased jurisprudence is a difficult question to answer. In a published paper, Madlanga J confronts the question of personal attributes in constitutional adjudication when judges cannot, or does not wish, to "detach themselves from the rich and complicated web of their life experiences; of who they are as individual beings". 67

67 Madlanga 2019 SAJEI Journal 48.

[F]inding reasons for a pre-determined outcome makes a mockery of judging. It amounts to judicial dishonesty and breaches the oath of judicial office. 68

68 Madlanga 2019 SAJEI Journal 60.

In considering Madlanga J's assertions, it is imperative to bear in mind that judges, like all people, have political views which, in certain circumstances, may be advanced through judgements, although the law does not permit it:

Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But they are not entitled to inject their personal views into judgements or express their political preferences. To illustrate the point I intend to refer to some instances where the court below in my view overstepped the limits of its authority. 69

69 National Director of Public Prosecutions v Zuma 2009 2 All SA 243 (SCA) (hereafter NDPP v Zuma) para 16.

An illustration of how judges may become partisan by (ab)using judgements to advance personal issues – even to the point of inadvertently advancing certain political desires – is found in the events leading to the incarceration of former President Zuma.

In Secretary of the State Capture Commission v Zuma, the majority of the Court, who felt that their dignity had been undermined by the former President Zuma, concluded that it was "in the interests of justice to depart from ordinary procedures" 70

70 Secretary of the State Capture Commission v Zuma para 28.

act unlawfully by "departing from ordinary procedures". Regardless of one's personal views about Mr Zuma, there is no denying that in "departing from ordinary procedures", the majority breached the stare decisis doctrine, which holds that the Court should decide similar cases similarly and that it cannot suddenly change its jurisprudence to achieve particular outcomes based on the litigant(s) before it. 71

71 See Moseneke All Rise 208.

Faced with these constitutional incursions into Mr Zuma's rights, notwithstanding what appeared to be his outright contempt of the Court, Theron J (with Jafta concurring) dissented, opening their judgement with a quotation from Holmes J's caution about the dangers of accidents caused by "immediate overwhelming interest which appeals to the feelings and distorts of the judgement". 73

73 See the opening of Theron J's dissent in Secretary of the State Capture Commission v Zuma quoting Northern Securities Company v United States [1904] USSC 64 400.

I do not agree that it is constitutionally acceptable for this Court to grant an order of unsuspended committal which is not linked to coercing compliance with this Court's order in CCT 295/20. With the greatest respect, I am concerned that the main judgement's focus on the "unprecedented" facts of this case distracts from a very troubling feature; namely, that this Court, in motion proceedings and sitting as a court of first and last instance, is being asked to mete out an unsuspended term of imprisonment which is singularly punitive in purpose and effect. Whereas civil contempt proceedings have dual remedial and punitive purposes, the proceedings before us are wholly punitive. In my view, it is unconstitutional, to the extent that it violates sections 12 and 35(3) of the Constitution, to order punitive committal for civil contempt in motion proceedings, where no remedial or coercive relief is granted. The main judgement, again and again, answers this concern with recourse to the exceptional facts of this case and the conduct of Mr Zuma. In doing so, it fails, or refuses, to see the woods for the trees, with the result that, in seeking to justify a punitive order which satisfies an understandable desire to address Mr Zuma's scandalous disrespect for this Court, it trammels over the constitutional rights of alleged contemnors (including Mr Zuma). 74

74 Secretary of the State Capture Commission v Zuma para 143.

In saying this, Theron J essentially accused the majority of acting unconstitutionally against Mr Zuma, something of which she was not prepared to be a part. In a subsequent rescission application against the same judgement, Jafta J also dissented, holding that the majority missed an opportunity to rescind its unconstitutional judgement, as the "urgency in which the matter had to be addressed did not justify non-compliance with

the need to hold a fair trial". 75

75 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State 2021 11 BCLR 1263 (CC) (hereafter Zuma v State Capture Commission) para 235.

Interestingly, both judges had, in an earlier judgement, joined a majority judgement which Mogoeng CJ had described as "a textbook case of judicial overreach – a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament" 77

77 Economic Freedom Fighters II para 223.

The tone and choice of language aside, the former Chief Justice's dissent is significant. The dissent appears to be one of the few, if not the first, in which a judge accused his colleagues of downplaying the separation of powers. It was the first time that a judge cautioned his colleagues to guard against overreach into the exclusive domain of Parliament. In the past, politicians and ordinary members of the public have been the ones criticising

judges for infringing on the separation of powers through politicised judicial activism. Judges had always presented a united front in defence of their judgements. They had done so to quell political attacks on the bench. Hence, the words of the Chief Justice gave credibility to perceptions that the courts were violating the Constitution in regard to constitutional supremacy and the separation of powers. If it were to be assessed using objective criteria and found to be true, such judicial conduct would not only violate the Constitution but would subvert democracy.

It is noted that the Chief Justice not only used unprecedented language but also (contrary to the custom of the Court) intervened during Jafta J's reading of the summary of the dissent and insisted that Jafta J read the full separate dissent, handing him the document in the process. Jafta J was noticeably startled. The first applicant in the matter, the Economic Freedom Fighters, was unimpressed and issued a media statement afterwards, expressing its disapproval of the conduct of the judges:

When judges fight in full view of cameras it brings the integrity of the court and their judgements into disrepute. The CJ's actions may unwittingly create doubt in the minds of the public about the majority judgement of the court, which even if it is not unanimous, it must still be respected and fully complied with. 83

83 Ndlozi 2017 http://www.effonline.org/single-post/2017/12/29/EFF-WELCOMES-THE-MAJORITY-JUDGMENT-ON-THE-IMPEACHMENT-CASE-AGAINST-ZUMA.

The Economic Freedom Fighters thought that the Court was at loggerheads with itself. It is not clear whether the live broadcast of the judgement on television influenced the judges to act in the way they did. It has been alleged before that the live television coverage of judicial proceedings influences the behaviour of judicial officers. Counsel and judges are susceptible to the temptation to play to the gallery because "no one behaves in the same way on camera and in camera". 84

84 Beloff 1999 Denning LJ 157 (emphasis added).

The other judges did not take the views of the Chief Justice on the alleged overreach by the majority kindly. In closing the majority judgement, Jafta J said that the Chief Justice's description of the majority decision was "unprecedented … misplaced and unfortunate". 85

85 Economic Freedom Fighters II para 218.

majority view was a pronouncement of the failure of the National Assembly to fulfil its obligations and a direction for it to fulfil its obligations without further delay. This, Jafta J reasoned, was not downplaying the separation of powers but fulfilling a constitutional obligation. 87

87 Economic Freedom Fighters II para 220.

Froneman J concurred in the majority judgement and would have noted his concurrence in the "usual manner" but felt that the Chief Justice's statement "should not be left unanswered". 88

88 Economic Freedom Fighters II para 279.

4 Reconciling collegiality with dissent

The impacts of judicial dissents on the litigants, society and the law determine the benefits of dissents. When a judge dissents, members of the public have access to the dissent (which is published with the majority judgement) and can weigh the reasons for the dissent and decide on the correctness of the dissenters. Langa CJ spoke about the need for dissents to enable judges to reject majority views and instead insisted on what they believe to be the correct approach to a legal problem. 92

92 Hoexter "Importance of Dissent" 120.

encourages robust constitutional debate and allows judges to express alternative constitutional interpretations to pressing legal questions. 95

95 Economic Freedom Fighters II para 280.

Another way of viewing dissents is in appreciation of their (minor) contributions to jurisprudence. They enable the majority to reassess and change the law in future cases, as illustrated by the Prince cases. In the first Prince case, Prince v President Cape Law Society, 96

96 Prince v President Cape Law Society 2001 2 BCLR 133 (CC) (hereafter Prince I).

The first Prince case stimulated public and judicial debate on the resolution of the difficult constitutional, legal, and moral issues surrounding the use of cannabis. The dissent opened an avenue for a judicial and intellectual

exploration of alternative answers to the question of the herb, leading the Court to a different conclusion in the second Prince case. Arguably, the dissent in Prince I inspired a jurisprudential shift and nurtured the conditions which made it possible for the Court to look at the issue again. The minority in the first case was vindicated in the second case when the whole bench endorsed the order that the minority proposed in the first case.

However, Hoexter argues that even if a dissent is not vindicated, it is still valuable because dissents promote freedom of expression and transparency in court decision-making, thereby upholding the founding constitutional values, judicial independence and core tenets of the Bill of Rights. 102

102 Hoexter "Importance of Dissent" 122.

Notwithstanding the benefits of judicial dissent, the value of dissents should not be overemphasised. Often, dissents have as many pitfalls as they have benefits for the litigants, society and the future development of law. Whereas some dissents have influenced legal change, others have not. Hence, Langa CJ observed that "[D]issenters are not always right. Often, they will be wrong, and sometimes [they may] even cause harm." 107

107 Langa 2007 SAJHR 369.

consider whether their dissents are not pointless self-indulgence. 109

109 See Tushnet "Introduction" xii.

The judges are obliged by the oath of office to dissent when they believe that the majority decision is wrong and that their dissents may eventually lead to the correction of a fundamentally incorrect majority approach to a legal question. The Prince cases prove this. However, the dangers of dissenting judgements do not emanate from mere judicial differences but from a poor choice of words and tone in a dissent. A not-so-carefully-worded dissent may create an appearance that the judges are at loggerheads. 111

111 Mendes Constitutional Courts 132.

In determining the true value of Justice Froneman's dissent based on its normative foundations and the benefits and pitfalls of dissents discussed above, one may ask whether it is possible to reconcile collegiality with his dissents. In this regard, one may observe that although judicial dissent does not always promote the spirit of finding common ground, which characterised the first judges of the Court, dissents seemingly do not (and should not) affect collegiality and comity among judges because it is possible for judges to disagree without being disagreeable. A judge may concur or dissent and still be collegial to his/her colleagues. 112

112 Mendes Constitutional Courts 132.

and interact with one another is to remember that they are team members in a prestigious institution whose integrity they must uphold. Sachs J says that:

We should avoid conduct which has the intention or effect of belittling or marginalising our colleagues…When criticising opinions with which we disagreed, we attempted to use measured and respectful argument. Indeed, collegiality extended to our making proposals to colleagues who disagreed with our own opinions! What mattered was the quality of the Court's decision as a whole rather than who we imagined would eventually come out smelling of judicial roses. 115

115 Sachs We, the People 179.

Sachs J is a fierce defender of judicial dissent. In We, the People, he argues that a judge should always disagree on any matter in which a significant principle is involved if he/she thinks the majority judgement is wrong and should never allow himself/herself to be coerced by colleagues to sign on to a judgement which he/she thinks is fundamentally flawed. Even when a judge is part of a tiny minority, Sachs J says, the judge should stand his/her ground, even if doing so might distress colleagues "whose thoughtfulness, skills and compassion you truly admire". 116

116 Sachs We, the People 179.

At times, a disagreement between judges may embroil the Court in controversy, such that a judge may elect not to take the side of either the majority or the minority so as not to entangle himself/herself in the controversy. 119

119 See Didcott J's views in Hugo para 61.

their arguments to the factual and legal issues at hand so that they are devoid of personal attacks. When some of the judges seemingly attacked each other verbally in Economic Freedom Fighters v Speaker of the National Assembly II, Justice Froneman stepped in to remind the Court of the importance of dissent and of the need to appreciate that judges who holds different views hold those views not because they have abdicated their responsibility but because of their judicial consciences, oaths of office and the Constitution. He said these require judges to dissent where necessary instead of blindly following the majority for the sake of keeping the peace.

5 Conclusion

In a nutshell, the Constitutional Court of South Africa resolves cases through outcomes guided by majority rule and judicial collegiality and dissent. Whereas it is expected and even necessary for judges to differ on the correct interpretation of facts, the application of relevant legal principles and the appropriate remedies, matters that pose moral and ideological questions often split the Court. Politically sensitive cases, which touch on South Africa's contested history and the proper boundaries of the authority of the Court in South Africa's constitutional democracy, also divide judicial opinion. Justice Froneman's dissents show that the tension between individual dissenting opinions and collective decision-making by the Court manifests the importance of tolerance of diversity on the bench. His approach shows that, on the one hand, the diverse perspectives and experiences of individual judges contribute to the richness of the Court's jurisprudence and that, on the other, there is a need for the court to function as a cohesive unit and reach consensus wherever possible. This highlights the importance of judges working together to find a balance between their individuality as members of the apex Court and the need for unity of purpose and action. This can be understood as a process in which the conflicting tensions of dissension and collegiality work side by side to contribute to the evolution and development of the Court's jurisprudence.

Justice Froneman's pronouncements on the need to embrace dissent emphasise the need for the judges to work together effectively and in harmony, even in the face of some of the most divisive cases. This means that the judges can reach decisions and fulfil their duties as a group without acting independently or in conflict with one another due to personal differences. This is important in a court setting where judicial decisions have significant political and societal consequences. It is more crucial in a fractured society like South Africa. Justice Froneman's approach shows that by functioning as a cohesive unit (despite the personal differences of its judges on some issues), the Court can maintain its credibility and integrity and ensure that its decisions are fair and just for all in society. This does not

mean that judges should not dissent when there are legitimate grounds for dissent. Instead, it means that dissenting opinions must be presented in a constructive and respectful manner rather than in such a manner as to undermine the authority and decision-making of the Court.

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Grimm "What Exactly is Political About Constitutional Adjudication?"

Grimm D "What Exactly is Political About Constitutional Adjudication?" in Landfried C (ed) Judicial Power: How Constitutional Courts Affect Political Transformations (Cambridge University Press Cambridge 2019) 307-317

Hoexter "Importance of Dissent"

Hoexter C "The Importance of Dissent: Two Judgments in Administrative Law" in Price A and Bishop M (eds) A Transformative Justice: Essays in Honour of Pius Langa (Juta Claremont 2015) 120-140

Kelemen Judicial Dissent in European Constitutional Courts

Kelemen K Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective (Routledge London 2018)

Langa 2007 SAJHR

Langa P "The Emperor's New Clothes: Bram Fischer and the Need for Dissent" 2007 SAJHR 262-372

Le Roux and Davis Lawfare

Le Roux M and Davis D Lawfare: Judging Politics in South Africa (Jonathan Ball Johannesburg 2019)

Madlanga 2019 SAJEI Journal

Madlanga M "Judging According to Personal Attributes, Outlook on Life and Life Experience: Any Practical Value?" 2019 SAJEI Journal 48-60

Mendes Constitutional Courts

Mendes CH Constitutional Courts and Deliberative Democracy (Oxford University Press Oxford 2013)

Moseneke All Rise

Moseneke D All Rise: A Judicial Memoir (Picado Africa Johannesburg 2020)

Roux Politics of Principle

Roux T The Politics of Principle: The First South African Constitutional Court, 1995-2005 (Cambridge University Press Cambridge 2013)

Sachs We, the People

Sachs A We, the People: Insights of an Activist Judge (Wits University Press Johannesburg 2017)

Tushnet "Introduction"

Tushnet M "Introduction: Why Dissent?" in Tushnet M (ed) I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases (Beacon Press Boston 2008) xi-xxvi

Venter 2003 PELJ

Venter F "Politics, Socio-Economic Issues and Culture in Constitutional Adjudication" 2003 PELJ xiii-xx

Case law

AfriForum v University of the Free State 2018 4 BCLR 387 (CC)

Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC)

City of Tshwane Metropolitan Municipality v Afriforum 2016 9 BCLR 1133 (CC)

Daniels v Scribante 2017 8 BCLR 949 (CC)

Du Plessis v De Klerk 1996 5 BCLR 658 (CC)

Economic Freedom Fighters v Gordan; Public Protector v Gordhan 2020 6 SA 325 (CC)

Economic Freedom Fighters v Speaker of the National Assembly 2016 3 SA 580 (CC)

Economic Freedom Fighters v Speaker of the National Assembly 2018 2 SA 571 (CC)

Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province 2007 10 BCLR 1059 (CC)

Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 1996 4 BCLR 537 (CC)

Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch 2020 1 SA 368 (CC)

International Trade Administration Commission v Scaw South Africa (Pty) Ltd 2010 5 BCLR 457 (CC)

Jacobs v S 2019 5 BCLR 562 (CC)

Justice Alliance of South Africa v President of Republic of South Africa; Freedom Under Law v President of Republic of South Africa; Centre for Applied Legal Studies v President of Republic of South Africa 2011 10 BCLR 1017 (CC)

Mazibuko v Sisulu 2013 11 BCLR 1297 (CC)

Minister of Finance v Van Heerden 2004 6 SA 121 (CC)

Minister of Justice and Constitutional Development v Prince; National Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acton 2018 10 BCLR 1220 (CC)

National Director of Public Prosecutions v Zuma 2009 2 All SA 243 (SCA)

New Nation Movement NPC v President of the Republic of South Africa 2020 8 BCLR 950 (CC)

Northern Securities Company v United States [1904] USSC 64

Port Elizabeth Municipality v Various Occupiers 2004 12 BCLR 1268 (CC)

President of the Republic of South Africa v Hugo 1997 6 BCLR 708 (CC)

Prince v President Cape Law Society 2001 2 BCLR 133 (CC)

S v Lawrency; S Negal; S v Solberg 1997 4 SA 1176 (CC)

S v Makwanyane 1995 6 BCLR 665 (CC)

S v Mamabolo 2001 5 BCLR 449 (CC)

S v Thunzi (CCT 81/09) [2010] ZACC 12 (5 August 2010)

Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma 2021 5 SA 327 (CC)

Thebus v S 2003 6 SA 505 (CC)

United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC)

Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State 2021 11 BCLR 1263 (CC)

Legislation

Constitution of the Republic of South Africa, 1996

Drugs and Drugs Trafficking Act 140 of 1992

Medicines and Related Substances Control Act 101 of 1965

Government publications

Expropriation Bill [B23-2020]

GN R1675 in GG 25726 of 31 October 2003 (Rules of the Constitutional Court)

Internet sources

Constitutional Court of South Africa date unknown http://hdl.handle.net/20.500.12144/38257

Constitutional Court of South Africa date unknown Court Roll First Term http://hdl.handle.net/20.500.12144/38257 accessed 6 October 2023

De Vos 2012 https://constitutionallyspeaking.co.za/an-unambiguous-attack-on-constitutional-democracy/

De Vos P 2012 An Unambiguous Attack on Constitutional Democracy https://constitutionallyspeaking.co.za/an-unambiguous-attack-on-constitutional-democracy/ accessed 5 July 2019

De Vos 2019 https://constitutionallyspeaking.co.za/an-embarrassing-mistake-from-the-constitutional-court/

De Vos P 2019 An Embarrassing Mistake from the Constitutional Court https://constitutionallyspeaking.co.za/an-embarrassing-mistake-from-the-constitutional-court/ accessed 3 November 2019

Ndlozi 2017 http://www.effonline.org/single-post/2017/12/29/EFF-WELCOMES-THE-MAJORITY-JUDGMENT-ON-THE-IMPEACHMENT-CASE-AGAINST-ZUMA

Ndlozi MQ 2017 EFF Welcomes the Majority Judgement on the Impeachment Case against Zuma http://www.effonline.org/single-post/2017/12/29/EFF-WELCOMES-THE-MAJORITY-JUDGMENT-ON-THE-IMPEACHMENT-CASE-AGAINST-ZUMA accessed 29 December 2017

Office of the Chief Justice 2020 https://www.judiciary.org.za/ images/news/2020/Media_Statement_-_Retirement_of_Justice_Johan_ Froneman.pdf

Office of the Chief Justice 2020 Media Statement: Retirement of Justice Johan Froneman https://www.judiciary.org.za/images/news/2020/ Media_Statement_-_Retirement_of_Justice_Johan_Froneman.pdf accessed 13 May 2023

Staff Reporter 2017 http://www.huffingtonpost.co.za/2017/10/26/mogoeng-political-parties-must-resolve-issues-inside-the-family-first_a_23256319/

Staff Reporter 2017 Mogoeng: Political Parties must Resolve Issues inside the Family First http://www.huffingtonpost.co.za/2017/10/26/mogoeng-political-parties-must-resolve-issues-inside-the-family-first_a_23256319/ accessed 29 December 2017

Tolsi 2012 https://mg.co.za/article/2012-03-13-top-judge-defends-judicial-dissent-after-zuma-criticism

Tolsi N 2012 Top Judge Defends Judicial Dissent after Zuma Criticisms https://mg.co.za/article/2012-03-13-top-judge-defends-judicial-dissent-after-zuma-criticism accessed 8 July 2019

List of Abbreviations