Sunday, June 9, 2013

Must a court order be precise? Well, no, clearly not. To name what’s probably the most prominent US example of imprecision, the Supreme Court in Brown v. Board of Education II ultimately ordered that the school segregation cases before it “be remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Whether "all deliberate speed" was a wisely chosen (as well as imprecise) directive has been the subject of a great deal of debate. 

But in any event it’s one thing for a court to order the implementation of a profound constitutional mandate, and another for it to order the payment of a sum of money. For the latter, we might think, precision is simply essential – so essential that if it’s not possible for the court to specify the exact amount to be paid, then the court just can’t grant a remedy in the matter at all.

South Africa’s Constitutional Court, however, has recently disagreed, though on a closely divided vote (6-4). The Court concluded, in In the matter between Kwazulu-Natal Joint LiaisonCommittee and Members of the Executive Council, Department of Education,KwaZulu-Natal and Others (decided on April 25, 2013), that the provincial government of KwaZulu-Natal, by sending a notice to private schools stating the approximate subsidies it would pay them in 2009, had made an undertaking to pay those amounts, and that after the date for that first quarterly payment of the subsidy had come and gone, it was too late for the government to revoke its commitment as to the first quarter’s amount due. (¶ 48) That in itself was quite a bold decision, since it might have been argued that the government’s initial notice was a guide to expectations but not a binding commitment.

What’s most striking, however, is that the Court agreed that the government’s commitment was not to an exact sum. Instead, the circular in question had promised a subsidy at the “approximate funding levels” it stated (bold font and underlining in the original). (¶ 3) Having decided that that promise was binding for the first quarter of the year, the Court next faced the question of exactly how much the promise promised. The court answered, and ordered, that the province was obliged to pay “the approximate amounts specified in the notice.” (¶ 78)

Justice Zondo, in dissent (¶¶ 161-80), vigorously argued that that order was unacceptably imprecise. Certainly he was right that the order was imprecise, and the Court didn’t disagree. What the Court did say was that the province was obliged to pay “the approximate amounts,” and that the province was “obliged to engage with the schools” to agree on what the approximate amounts actually would be. What if they couldn’t reach agreement? Then the schools could return to court to litigate further. (¶ 75) I imagine the Court felt quite confident that the parties in fact would not feel it worth their while to return to court to fight over some presumably small area of difference between them. Surely the Court also hoped that the process of engaging with each other over the meaning of “approximately” would help the contesting parties to bridge their differences and to work together more fruitfully in the future.

The Constitutional Court has urged parties to engage with each other in other contexts as well, in particular in the fraught conflicts over housing that are a major area of legal struggle in South Africa today. In extending that approach to the field of school funding, the Court has in effect said that precision is a notch less integral to law than it might previously have appeared. And the Court is right that not all law is precise (though some of it is), and further right that no landmark identifies the exact boundaries between the precise and imprecise elements of a legal system. Whether this particular extension of the domain of the imprecise will ultimately prove workable is something only experience will answer.

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