[Note: This is Part III of a blog series on judicial globalization, in addition to the introduction]
Constitutional developments regarding the use of foreign law
As noted in Part II of this symposium, In terms of interpretation of the Bill of Rights in the 1996 Constitution of South Africa, international and foreign laws serve as aid. Foreign law refers to the law (such as legislation and case-law) of other states. The Constitution permits the consideration of foreign law. Section 39 (1) of the 1996 Constitution declares that:
[w]hen interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
The Constitutional Court frequently uses comparative foreign case law. Due to the legal tradition and culture, South African lawyers have and are still schooled in comparative law. The Court mostly follows Anglo-American tradition with the most prominent countries including Canada, the US, and England. Germany is the only non-common law country that the courts cite due to educational exchange between the two countries. These different traditions were of great importance while they were developing an indigenous jurisprudence.
As noted in the introduction:
There is a recognition that globalization is changing the contours of law and creating new legal institutions and norms. The need for global taxonomy is more important especially in light of legal globalization in which knowledge transfer is needed in not only different areas of a legal system but across different legal systems.
The concept of path dependence is primarily been used in comparative-historical analyses of the development and persistence of institutions, in this instance legal systems.[1] In terms of legal transplant, path dependence will determine whether its successful or not. The Constitutional Court in Sanderson[2] case expressed its concerns in this regard:[3]
Comparative research is generally valuable and is all the more so when dealing with problems new to our jurisprudence but well developed in mature constitutional democracies […] Nevertheless, the use of foreign precedent requires circumspection and acknowledgment that transplants require careful management. Thus, for example, one should not resort to the Barker test or the Morin approach without recognizing that our society and our criminal justice system differ from those in North America.
There is an ongoing debate about the proper use of foreign and comparative laws and the costs and benefits of uncritically following decisions of other courts. Judges are categorized into two groups depending on how they use foreign and international law in their decisions. First, judges are labeled as ‘too liberal’ (for those citing extensive comparative research) and proceeding from judicial activism to “judicial adventurism.”[4] Others are ‘too conservative’ if they show extreme caution to foreign sources. In Fose v Minister of Safety and Security,[5] Krieger J questioned the comparative approach adopted by Ackermann J in arriving at constitutional remedies by examining the positions in the US, Canada, Britain, Trinidad and Tobago, New Zealand, and Ireland. He stated:[6]
In my respectful view, it is neither necessary nor prudent to range as wide as does Ackermann J in his judgement. I decline to engage in a debate about the merits or otherwise of remedies devised by jurisdictions whose common law relating to remedies for civil wrongs bears no resemblance to ours and whose constitutional provisions have but a passing similarity to our section 7(4)(a) of the interim Constitution.
Ackermann J’s criticism points to the question of whom do South African judges write their opinion for? Who is the addressee of the judicial decisions’? Who is their audience? Other judges? Political actors in their national system, academia, the media, the global arena? In the case of South Africa, the audience is all these groups resulting in the style of judicial decisions which is highly argumentative.
The impact of foreign law in judgments: Selected cases
It is impossible to examine all the judicial decisions that have invoked foreign case law in South African jurisprudence.[7] From its first judgments in 1995 until the end of 2011 the Court handed down approximately 429 judgments. More than half (54 percent) of these judgments cited foreign case law. These judgments cited, give or take a few, 3047 foreign cases, Canada (879 citations), the United States of America (757 citations), the United Kingdom (494 citations); Germany (118 citations), and Zimbabwe (80 citations). The discussion in this section does not do justice to the variety of case law on this topic. However, the following cases will provide a glimpse of the practicability of judicial globalization in South Africa in several respects: because of their frequent reference to other foreign case law, and also because they demonstrate how human rights issues can result in a dialogue between courts of various nations in dealing with the same question.
S v Makwanyane and Another[8]
The case of Makwanyane was heard at the first sitting of the Constitutional Court on February 15, 1995.[9] The context within which this decision was made should be recognized: apartheid just ended and there still existed the apartheid courts.[10] Thus, in Makwanyane the Constitutional Court held that capital punishment was inconsistent with the ideals and provisions of the ‘interim Constitution.’ The recognition of the rights to life[11] and dignity[12] must be the benchmark in all actions of the state.[13] The Court noted that there is no distinction between extradition or deportation where the form of the punishment is contrary to these rights.[14] The Constitutional Court arrived at this decision by examining the decisions of Campbell and Cosans v United Kingdom[15] and Tyrer v United Kingdom[16] extensively.
Mohamed and Another v President of the RSA and Others[17]
The case of Mohamed dealt with an illegal immigrant accused of serious crimes and charged with capital offenses. The United States sought his removal from South Africa. Mohamed was sought for prosecution in the US relating to the bombing of the US Embassy in Dar es Salaam, Tanzania, in which 11 people were killed and 85 injured.[18] South African officials handed him over to the US without requesting an assurance that he would not be subjected to the death penalty.[19] The court reaffirmed its finding in Makwanyane that the death penalty is unconstitutional in all circumstances. The Court held that the rights to life, human dignity, and the right are not treated in a cruel and inhuman way “[w]ere not qualified by other principles of justice. There are no exceptions to the protection of these rights.”[20]
In its order, the Court ordered that Mohamed’s removal to the US had been unlawful. The Court ordered that its judgment be sent to the court trying Mohamed in the US. The substance of the Constitutional Court’s decision was provided to the jurors as a mitigating factor against imposing the death penalty.[21] Mohamed was ultimately sentenced to life imprisonment.[22]
The Constitution prohibits the state, ‘knowingly to participate, directly or indirectly, in any way in imposing or facilitating the imposition of such punishment’.[23] The decisions of the European Court of Human Rights were followed in finding a person might not be deported to a country in which there was a real risk that he might be subjected to cruel, inhuman, or degrading treatment.[24]
Glober v Nasper[25]
Grobler, a 33-year-old secretary employed by Nasionale Tydskrifte Ltd (a subsidiary of Media24 Ltd),[26] alleged that over a period of six months in 1999, she was sexually harassed several times by a trainee manager from the same company. These were described as ‘the lift incident’,[27] ‘the lanbousaal incident’,[28] ‘the coffee jar incident’,[29] ‘finger biting incident and’,[30] and ‘the flat incident’.[31] The learned judge in the trial court rejected the version of the second appellant (the trainee manager) that there had been a romantic relationship between him and the respondent. The judge also found that Grobler’s “chronic emotional problems” or “severe shock, anger, anguish, fear and anxiety; humiliation and severe psychological and psychiatric trauma” were the result of the sexual harassment to which she was subjected.[32]
The judge then proceeded to hold the first appellant, the employer of the second appellant, vicariously liable for his actions.[33] He justified the decision on policy considerations and the obligation placed on the courts to develop the common law in accordance with the values of the constitution. He came to this conclusion after a comprehensive discussion on the common law as to vicarious liability and recent developments thereof in the United States, Canada, United Kingdom, Austria, and New Zealand.[34] His opinion was therefore that the company’s employment of the harasser increased or created the incidence of harassment, as the latter was employed in a position of authority over his victim.[35]
The place of South African jurisprudence
South African legal system continues to gain momentum in judicial globalization based on its constitutional dispensation and the willingness of South African judges to engage in judicial global debates. According to Lourens du Plessi, South African Constitutional Court judges are “comparative constitutional enthusiasts” and “universalists” pursuing actively the constitutionalization of international law.”[36] While the South African Courts have drawn heavily from foreign sources in developing its jurisprudence, its own decisions have also led to the development of a distinctly South African jurisprudence that has come of age and now guides others as well. As Judge Guido Calabresi of the United States Court of Appeals, Second Circuit, has observed, such “constitutional offspring” can be very useful stating that “[w]ise parents do not hesitate to learn from their children”.[37] For instance, in the Makwanyane case, the Constitutional Court held that the death penalty was unconstitutional in South Africa in 1995. In reaching that conclusion, the Court conducted a wide-ranging review of international and foreign comparative law, including a number of Canadian cases. The Court turned to international and foreign law to support its conclusion. A few years later in 2001, the Supreme Court of Canada, held in Minister of Justice v Burns[38] that the Government of Canada has an obligation to seek assurances before removing a suspect to a country that still has the death penalty. The Supreme Court of Canada endorsed the views expressed in the South African case of Makwanyane departing from its earlier decision in Kindler v Canada (Minister of Justice)[39] and Reference re Ng Extradition (Canada)[40] in which, the Court held that Canada did not have an obligation to seek assurance before extraditing a person.
It is also observed that South African jurisprudence, particularly its socio-economic rights jurisprudence was instrumental in framing article 8(4) of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. According to Porter, “[w]ording was taken from the Grootboom decision of the South African Constitutional Court, where that Court first described its approach to reasonableness review in relation to the right of access to adequate housing in article 26 of the South African Constitution.”[41] In further illustrating how South African jurisprudence is becoming more useful, he adds that:[42]
[t]he incorporation of the wording from the Grootboom judgment suggests, as does the drafting history, that just as the South African Constitutional Court has incorporated jurisprudence from the CESCR into its own domestic jurisprudence, so has South African jurisprudence now informed the text of an international human rights instrument.
Overall, the utilization of international and foreign law has led to the evolution of South Africa from “borrower” status from which it built its own indigenous jurisprudence; to elevating to “lender” status in the global legal comity.[43] Thus, South Africa’s transformative human rights jurisprudence has made a significant contribution to international human rights literature that is cited by foreign courts such as the Canadian Supreme Court as well as contributing to international human rights law-making. Such recognition is noteworthy based on the constitutional value placed on international and foreign law in the South African Constitution and the subsequent interpretation given by the courts.
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[1] Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems, 45 Am. J. Comp. L. 5 (1997).
[2] Sanderson v Attorney-General, Eastern Cape 1998 92) SA 38 (CC).
[3] Id.
[4] Christopher McCrudden, Judicial Comparativism and Human Rights in COMPARATIVE LAW: A HANDBOOK 371 (Esin Örücü & David Nelkin eds., 2007).
[5] 1997 (3) SA 786 (CC).
[6] Id, at para 90.
[7] See Christa Rautenbach, Use of Foreign Law, North-West University, http://www4-win2.p.nwu.ac.za/dbtw-wpd/textbases/ccj.htm.
[8] S v Makwanyane 1995 (3) SA 391 (CC)
[9] Wessel L. Roux, Descriptive Overview of the South African Constitutional Court’ in TRANSFORMATIVE CONSTITUTIONALISM: COMPARING THE APEX COURTS OF BRAZIL, INDIA AND SOUTH AFRICA 136 (Oscar Vilhena, Upendra Baxi & Frans Viljoen eds., 2013).
[10] Id, at 136.
[11] Section 10.
[12] Section 11.
[13] Makwanyane, supra note 8, at para 144.
[14] Mohamed and Another v President of the RSA and Others 2001 (3) SA 893 (CC), para 40.
[15] ECHR, Series A, vol 48, 1982.
[16] ECHR, Series A, vol 26, 1972.
[17] Mohamed and Another v President of the RSA and Others 2001 (3) SA 893 (CC) (“Mohamed”).
[18] Id, paras 1,7-8.
[19] Id, paras 15-16, 19.
[20] Id, at para 52.
[21] Id, at para 73, prayer 3.1.1. of the Court Order.
[22] USA v Usama Bin Laden 156 F.Supp 2d 359.
[23] Mohamed para 38. (Section 7(2) provides that the state must ‘respect, protect, promote and fulfil the rights’ contained in the Bill of Rights.)
[24] Id at para 53.
[25] BPK 2004 (4) SA (220) (C).
[26] By the time the matter came before the trial court, Tydskrifte had disposed of its undertaking and Glober was its only remaining employee. Hence, Media24 accepted liability.
[27] Id, at para 4.10.
[28] Id, at para 4.11.
[29] Id, at para 4.12.
[30] Id, at para 4.13.
[31] Id, at para 4.14. The flat incident occurred away from work while Grober was showing her flat to the trainee manager which also involved a firearm.
[32] Id, at para 488C-E.
[33] Glober, 495 B.
[34] Glober, 494 D.
[35] (The Supreme Court dismissed the appeals of both the company and the trainee manager) See Media 24 Ltd & Another v Grobler, [2005] JOL 14595 (SCA).
[36] Lourens du Plessis, Interpretation in CONSTITUTIONAL LAW OF SOUTH AFRICA 32 (S Woolman et al, eds., 2008).
[37] United States of America v. Then, 56 F.3d 464 (2nd Cir. 1995).
[38] United States v Burns, 2001 SCC 7.
[39] Kindler v Canada (Minister of Justice) (1991) 6 CRR (2d) 193.
[40] Reference re Ng Extradition (1991) 6 CRR (2d) 252.
[41] B Porter, The reasonableness of article 8(4)- Adjudicating claims from the margins, 27 Nordic Journal of Human Rights, 49 (2009).
[42] Id, at 50.
[43] See, e.g., D.M. Davis, Constitutional borrowing: The influence of legal culture and local history in the reconstitution of comparative influence: The South African Experience 1:2 I. J. Int’l L. 181(2003); The Hon. Richard J. Goldstone, The First Years of the South African Constitutional Court 42 Sup. Ct. L. Rev.2. 25(2008).
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