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Summary

INTRODUCTION

Law is central to South Africa's history, as well as its future. Looking back, a distinguishing feature of apartheid, in contrast to other unjust systems, was its essentially legal nature. Apartheid was sustained and distinguished through an elaborate and sophisticated legal system. In light of this, it is perhaps surprising that law – in the form of a rigid Constitution that embodies the nation's highest aspirations – is equally fundamental to South Africa's future. Indeed, as Cameron JA, as he then was, notes, ‘[t]his paradox lies at the core of our national project – that we come from oppression by law, but resolved to seek our future, free from oppression, in regulation by law’.

Given this, the position of judges in South Africa has always been controversial and is likely to remain so. Langa J, as he then was, recalls that as a black man living under apartheid, judges ‘put the stamp of legality on a legal framework structured to perpetuate disadvantage and inequality’. In a famous debate, Raymond Wacks contended that apartheid judges had no option but to resign while others, most notably John Dugard, argued that the law offered resources that could be used for progressive ends and judges would do better to mitigate the effects of apartheid from within.

Since 1994, the judiciary has continued to be a focus of controversy, particularly so in recentyears. As almost all South Africans, and many throughout the world, are surely aware, Jacob Zuma – President of the African National Congress (ANC) and currently President of the Republic – was charged with corruption. This held out the spectre that if Zuma had his day in court, the judiciary might have been required to determine whether he was able to become President or remain in office. This saga had several extraordinary repercussions. One was the resignation of Thabo Mbeki as South African President in response to a finding of Nicholson J in the High Court (later overturned by the Supreme Court of Appeal) that political meddling in the charges against Zuma could not be excluded.

Summary

INTRODUCTION

South Africa has fairly recently emerged from centuries of racial repression, in which the fundamental equality and dignity of the majority of South Africans were negated. This repression culminated in the system of apartheid that prevailed from the late 1940's to the early 1990’s. As is often pointed out, one of the particularly shocking aspects of apartheid was the manner in which the law was used as an instrument of division and oppression. Far from acting as a bulwark against injustice, the law accentuated social and economic divisions by, amongst other things, restricting the right to vote on racial lines, providing for separate areas in which people were permitted to live and separate public amenities that they could use and prohibiting sexual relations across racial lines.

Laws dramatically restricting freedom of expression were an important pillar of apartheid's legal edifice. As in other totalitarian states, the use of a myriad of laws to clamp down on free speech, and particularly media freedom, was a vital component in the apartheid state's attempts to cover up human rights violations and to stifle political and civil opposition. Newspapers were banned, political gatherings were prohibited, the content of publications was censored and journalists and editors were regularly harassed by the security police. The culture of repression that prevailed is captured by Richard L Abel:

‘Government either banned all outdoor meetings or refused to issue the requisite permits. It outlawed numerous organisations. It excluded and deported foreign correspondents and television crews. It regulated the entry of all foreign books, newspapers, magazines and films. It controlled television and dominated radio. It severely limited what the domestic media could publish, seized offending books, and punished publication and even ownership with fines and prison terms. It curtailed access to scenes of unrest or opposition. It prosecuted and jailed opponents for long terms …’

These restrictive laws generally took the form of legislation emanating from Parliament, such as the Internal Security Act, the Publications Act and the Official Secrets Act, which was subsequently replaced by the Protection of Information Act.

Summary

INTRODUCTION

The legal academic literature on the role of the South African Constitutional Court (CCSA) in nation-building and social transformation is preoccupied with a set of concerns first raised by Karl Klare in a 1998 law journal article. In this article, Klare argued that the South African Constitution must be understood as having initiated a collective ‘project’ of social transformation through law in which the CCSA had the major part to play. On this understanding, the proper measure of the CCSA's social transformation performance is the extent to which it has fulfilled its primary institutional function of enforcing the liberalprogressive (or what Klare terms ‘postliberal’) legal rule changes envisaged by the Constitution. These changes are to be effected not just as a matter of result (constitutionally offensive legislation struck down or common law legal rules developed in a constitutionally compliant way), but also as a matter of adjudicative style: that is, the CCSA should change its decision-making methods to fit in with the Constitution's ‘caring and aspirationally egalitarian ethos’. What Klare means by this is that the Court should openly concede the political nature of its function and foreground the values and policy considerations it takes into account when deciding cases. In addition to the broader process of social transformation that the Constitution envisages, therefore (indeed, in Klare's argument, posited as a necessary condition for that broader process) is a particular type of legal-cultural transformation: the transformation of South African legal culture from formalism to something approximating the cultural ethos of the Critical Legal Studies movement in the United States.

The sociological assumptions underlying this argument are somewhat questionable, involving as they do quite controversial claims about the role of courts in social change. It is not at all obvious, in a country like South Africa, which has fairly low levels of rights consciousness and access to justice, why changes in legal rules and judicial decision-making methods should have a significant impact on actual social relations.

Summary

‘…truth commission-type mechanisms cannot be concerned simply with issues of justice, but are intricately involved in and reflective of broader processes of nation-building.’

‘One has only to consider the counter-factual question – what difference would it have made if South Africa had moved from apartheid… without anything like the TRC process? – to realize how much more violent and dangerous our current scene might well have been.’

INTRODUCTION

My charge in this chapter is to look back at the Truth and Reconciliation Commission (TRC) process in South Africa and to evaluate its contribution or otherwise to the post-apartheid socio-political process. I should at the outset clarify my use of the term ‘Commission process’ as it is broader than the TRC event itself, it pre- and post-dates it. The Truth and Reconciliation Commission was a multi-faceted and protracted event covering the period 1996–2003. When I refer in this chapter to the ‘Commission process’, I go further back to the accountability debates in the exiled African National Congress (ANC) in the late 1980s and up to certain events of the present. So the term embraces a gamut of issues and events – those late-80s debates which acquired added relevance after February 1990, the indemnity and amnesty negotiations of the 1990–94 period, the debates around possible prosecutions in the post-TRC era as well as the discussions over forms of reparation and the heated arguments around the delays in paying them out. Finally, the continuing exhumations of the remains of some of the disappeared victims of the late-apartheid era also fall into this category. Each of these forms part of a complex tapestry which I refer to as the ‘Commission process’ and they form part of this retrospective evaluation. I will also draw on my own experiences from 1996–99 as a member of the TRC's Research Department and of the small group which wrote the first five volumes of the Final Report.

Many years have passed since the South African public and a wider international audience confronted the visual reality of South Africa's truth and reconciliation process. On 16 April 1996 in the Eastern Cape city of East London an international television audience watched a string of witnesses – widows and widowers, mothers and fathers, old struggle veterans – begin a story-telling process which was to mesmerize South Africa's people.

Summary

INTRODUCTION

As a check upon potential for authoritarian rule, the South African constitution of 1996 imposes a ban upon Presidents serving for more than two five year terms in office (unless individuals are elected to fill a vacancy in the office, in which case the period between that election and the next election of a President by parliament is not regarded as a term). Furthermore, the principle of occupying office for a limited term was underlined by Nelson Mandela who, after his election as President by parliament following the country's first democratic general election in 1994, chose to stand down in 1999. Indeed, prior to that, Mandela had already made way as leader of the African National Congress (ANC), being succeeded as party president by then (state) Deputy President, Thabo Mbeki at the party's national conference in Mafikeng in December 1997. At that time, the political implications of a separation of the state and party presidencies were not much debated, not least because Mbeki had already assumed effective power, with Mandela being devoid of personal ambition and serving very much as a figurehead and icon of South Africa's new democracy. Yet, as subsequent events were to prove, the division of party and state powers was pregnant with constitutional and political difficulties.

The ANC's own constitution requires, flexibly, that a national conference, the supreme body of the organization, shall be convened ‘at least every five years’. However, the practice since 1997 has been for the conference to be held at fixed five yearly intervals. This resulted in the party's 52nd national conference being scheduled for December 2007 at Polokwane, the capital of the province of Limpopo. The principal business of the Conference was to be to elect a president. However, unlike the state constitution, the ANC's constitution sets no limit upon the number of terms of office that a party president may serve.

Mbeki, re-elected as state President in 2004, was scheduled to relinquish that office following the country's fourth democratic general election, which constitutionally could be held no later than the first half of July 2009.

Summary

‘KILL THE BASTARDS’

In April 2008, some three weeks before the 14th anniversary of what the ANC calls the ‘democratic breakthrough’ of the elections in 1994, Susan Shabangu, the then Deputy Minister of Safety and Security and a woman involved in the struggle against apartheid since the early 1980s, was asked by members of the audience at a community meeting in Pretoria what she and her government were doing to curb crime. From press reports of the event, it is unclear how she structured her response: one cannot tell if she talked about recent declines in unemployment or government's commitment of billions of rands to the construction of housing; one cannot tell if she addressed herself to reducing inequality or helping to build better family structures; one cannot tell if she spoke about addressing drug abuse or redressing historical patterns of patriarchy. What is clear is that, when she turned to the question of the role of the police in keeping communities safe, her views tended to the robust: ‘You must kill the bastards if they threaten you or the community. You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect.’

Warming to her theme, she said that she wanted to assure police officers that they had ‘permission to kill these criminals. I won't tolerate any pathetic excuses for you not being able to deal with crime. You have been given guns, now use them.’ She continued:

‘I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don't miss. We can't take this chance. Criminals are hell-bent on undermining the law and they must now be dealt with. If criminals dare to threaten the police or the livelihood or lives of innocent men, women and children, they must be killed. End of story. There are to be no negotiations with criminals’.

It was a chilling speech made by someone clearly playing to an audience – she received a standing ovation and, a few days later, nearly 90% of respondents to a newspaper phone-in survey on the subject said Shabangu was right. This might have been less depressing if the response from government and the opinionmaking elite had been suitably horrified.

Summary

This book takes up a continuing, controversial and to some extent rather confusing debate in EU law – in both academia and in ECJ (the Court of Justice of the EU as it will be abbreviated in the following) case law – on the discovery, shaping and perhaps defence of general principles which may unite its rather heterogeneous involvement in private law, or, as I prefer to call it, civil law relations. The study is not meant to “open” the route to some type of codification, consolidation or restatement of EU civil law, but more modestly to explain its present status, thus making any “optional instruments” nugatory. The debate on EU law principles is much more advanced in EU constitutional and administrative law. EU civil law seems to be lagging behind, but will certainly gather steam the more EU law takes an interest in – some call it “invades” – “horizontal” relations between private persons, and shapes remedies, both substantive and procedural, of its own.

The seven principles, explained in the introduction and treated in detail in the seven following chapters, have an impact on substantive, procedural and methodological matters which have traditionally belonged to the law of Member States but which have seen a shift in competence and legitimacy towards the EU – a shift welcomed by many, but also feared by others. This study does not take a stand in this debate, but simply analyses the remarkable competence “creep” promoted and to some extent provoked by the abundant case law of the ECJ which forms the basis for the “bottom-up” approach used in this study.

The study covers many areas of EU civil law, such as free movement and competition issues, employment relations, consumer law, non-discrimination issues, services in the general economic interest, EU attempts to create a Common European Sales Law (CESL), as well related procedural matters within the scope of EU law. Last but not least, reference to fundamental rights is made continuously, namely to those enshrined in the EU Charter of Fundamental Rights, but also to those in the European Convention of Human Rights (ECHR) and earlier case law of the ECJ. A caveat should be added: the study never tries to exhaustively discuss any of the areas referred to.

Summary

ARTICLE 47 OF THE CHARTER AND ARTICLE 19 TEU: ANYTHING NEW?

This chapter will be concerned with a specific aspect of the constitutionalisation of civil law, namely the principle of effectiveness now written into Article 47(1) of the Charter, which reads:

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”

Article 19(1) TEU puts the responsibility for “providing remedies sufficient to ensure effective legal protection in the fields covered by Union law” on Member States through the status of their courts of law as “Union courts”. A similar provision was contained in Article I-29(1) of the Draft EU Constitution, which was rejected in the Dutch and French referenda, but which later formed the basis of the TEU.

On a traditional reading, the constitutional “tandem” of Article 47 of the Charter and Article 19 TEU does not seem to contain anything new. It simply restates the existing EU acquis based on the so-called “procedural autonomy” of Member States to enforce Union rights, with some specific limitations developed under the so-called REWE/Comet case law to be discussed below (4.3). Its importance for civil law still remains to be discovered.

This chapter will take a different approach. The three strands of the argument examine the different ways in which the principle of effectiveness can be understood as a “constitutional principle” (0.7) in the case law of the ECJ:

Summary

ELEMENTS OF PROTECTION OF THE WEAKER PARTY

EU civil law has emerged not so much as a body of rules with an objective of enabling citizens to use their autonomy for purposes, whether economic or not, to be determined by themselves, but rather as a body of provisions that tries to protect the weaker party and to combat discrimination (Chapter 3). To put it simply, at least three areas can be distinguished and have found their way into the Charter, frequently based on prior extensions of citizens’ rights by EU law amendments that will not be documented here, in particular in the field of social and consumer policy:

Summary

SOME MISUNDERSTANDINGS ABOUT GOOD FAITH IN CONTRACT LAW: ELEMENTS OF A DUTY OF LOYAL COOPERATION IN CONTRACTING

The concept of “good faith” in contract law has been the subject of extensive legal writing in the Member States of the EU. Comparative lawyers usually distinguish between the continental approach where the general clause of good faith is part of the general law of obligations, including contracting, and the attitude in common law, which seems to ignore such a general concept. As a sort of “proof”, Hesselink cites a prominent English judge as having said:

“In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith […]English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.”

In this context, it comes as a surprise that the ECJ, in the Messner case (5.9), refers to the “principles of civil law, such as those of good faith”. As far as German contract law is concerned, this is of course nothing surprising, but for an English lawyer it must have been quite shocking and remained unexplained how far this refers merely to applicable, i.e. German, law or EU civil law in general, which is the object of this study. I have tried to limit the impact of this judgment, against the overarching criticism of Hesselink, to the case before the ECJ; in this case the ECJ only authorised the German court to impose upon the consumer an obligation under the German rules of good faith which was not expressly included in the relevant Distance Contracts Directive, but which now has been put into Article 14(2) of the new Consumer Rights Directive 2011/83 (2.1). I am not aware of later references by the ECJ to a general principle of good faith in EU civil law. But of course this would not exclude its autonomous development once EU civil law becomes more coherent and comprehensive.

Summary

IMPORTANCE OF THE PRINCIPLE OF PROPORTIONALITY FOR EU CIVIL LAW: SOME GENERAL REMARKS

“HARD LOOK” IN REVIEWING OF NATIONAL MEASURES

The principle of proportionality as a constitutional principle of EU law – including EU civil law – was first developed to justify restrictions by Member States on free movement under the public policy or general interest proviso. The Court summarised the basic principles in Gebhard mentioned earlier within the context of “framed autonomy” (1.9): Member State restrictions on autonomy of contracting which have a negative impact on fundamental freedoms must be justified not only by a legitimate public interest, but they must also be suitable for attaining the given objective (relationship between means and end), and be necessary for achieving the proposed goal, without putting an excessive burden on the individual. In general terms, this amounts to the “less restrictive alternative” test. A state measure which puts an unreasonable burden on the individual and which can easily be substituted by a less intrusive measure capable of attaining the same objective will not be regarded as being “necessary”.

The Gebhard test has been used many times in later cases, sometimes with slight variations in the wording, which I will not follow up here. Its impact on (mandatory) contract law of Member States restricting free movement of goods, services or capital has been mentioned above with some examples from ECJ practice (1.10–1.11). With regard to the “imperative requirements in the general interest”, the catalogue of these interests – consumer or worker protection, environmental concerns, fairness of commercial transactions – is an open-ended one, with the exception of “purely economic interests”, which do not justify restrictions. Member States will usually be able to find a justified public interest which legitimates restrictions on the exercise of fundamental freedoms by EU market citizens. The debate in the many cases which have been decided under the Gebhard test, or closely related tests, will therefore usually concentrate on:

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Chapter 8 - The Transformation of the Judiciary

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Chapter 12 - Aspects of the Treatment of Freedom of Expression in South Africa’s Democratic Transition

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Frontmatter

Chapter 9 - Assessing the Social Transformation Performance of the South African Constitutional Court: From Totalitarianism to the Rule of Law

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Chapter 3 - The Truth and Reconciliation Commission Process: A Retrospective

Summary

Chapter 11 - The South African Presidency in Comparative African Context

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Chapter 5 - Crime, Policing and Nation-Building

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Preface

Summary

Table of EU legislation

Chapter 4 - The Principle of Effectiveness

Summary

List of abbreviations

Chapter 2 - The Principle of Protection of the Weaker Party

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Chapter 7 - An Emerging Principle of Good Faith and of a Prohibition of Abuse of Rights?

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Contents

Summary. Seven Theses and a Conclusion

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Table of ECJ cases: alphabetical

Chapter 6 - The Principle of Proportionality

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Frontmatter

Index

Table of ECJ cases: chronological

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