Dissent shows that the justice system works

Johannesburg – Justices Leona Theron and Chris Jafta’s “ugly split” from their Constitutional Court peers on the constitutionality of the imprisonment of former president Jacob Zuma has drawn both scorn and praise – depending on one’s feelings towards the fellow from Nkandla.

The same schism played itself out after Jafta and Theron stuck to their guns in the historic rescission matter when they effectively ruled that any individual detained has a right to a fair trial and that the limitation on Zuma’s rights was not justifiable.

Some in society have sought to portray the two justices as mavericks who like to upset the apple cart, while others use their dissent judgments to attack the seven other justices who formed a majority judgment.

Both views are utter tosh.

One of the advantages of dissenting judgments is that it opens such judgments to further scrutiny by scholars and judges, wherein such reasons and conclusions could be used in subsequent judgments.

Perhaps, Charles Evans Hughes, who served as Chief Justice of the US apex court in the 1940s better drives home the importance of dissent judgments.

“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed… Independence does not mean cantankerousness and a judge may be a strong judge without being an impossible person. Nothing is more distressing on any bench than the exhibition of a captious, impatient, querulous spirit.”

Dissent judgments also show that the losing party’s case was listened to with the seriousness it deserves.

Zuma like any losing party in court ought to appreciate that the strength of his argument was properly recognised rather than to be left wondering if his case was ever really put across to the court.

The courts exist to afford protection. But sometimes, the courts fail and judges are not infallible.

There is equally nothing wrong with unanimous judgments if that is what the law of the land demands on a particular case. A classic example is the landmark Nkandla judgment wherein the apex court held that the power of the public protector to take appropriate remedial action has legal effect and is binding.

The judgment went a long way in clarifying the authority of a critical Chapter 9 institution.

In considering the efficacy of dissenting opinions it must be remembered that some dissenting opinions ultimately become the law of the land either through a change of opinion on the part of the court or because they produced a change in the constitution or in the legislature made laws of the land.

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