OPINIONISTA: All courts, including the highest, must be subject to careful public scrutiny By Professor Balthazar
what can only be described as an excoriation of the reasoning adopted in a Constitutional Court judgment. He began his article with the following sentence:He concluded his analysis of the decision inOne’s impression is of a court that not only reasons badly, but no longer cares to reason well.”
It thus may be said that the correct result was reached, but as upsetting as the article is to Constitutional Court advocates, this columnist included, Boonzaier has revealed, arguably only in this decision, that the Court’s reasoning left much to be desired, for we should demand of the highest court that its reasoning is impeccable and relentless. Sadly, the decision leaves administrative law in a state of regrettable confusion.
Professor Pierre de Vos has written a careful analysis of this case including a focus upon the almost unique divide in the Court. Suffice to make but a few additional points. The common purpose doctrine was used in the most pernicious way by the apartheid regime, particularly in the 1980s; hence it is understandable that members of the Constitutional Court remain cautious about its application.
The implication of the approach adopted by the five who were prepared to hear the case and set aside the conviction of murder is that a purely factual dispute in which it is contended that the trial court misapplied a concept of criminal law to the particular facts can be a constitutional issue. That in itself is a surprising outcome, but not half as legally odd as making a finding on fact without access to the full record of evidence.
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