THE GLOBAL SOUTH NETWORK (GSN)

JUDICIAL INDEPENDENCE AND JUDICIAL ACTIVISM IN THE FACE OF TRANSFORMATIVE CONSTITUTIONALISM AND LEGISLATIVE AND EXECUTIVE INERTIA AND INCAPACITY

JUSTICE STEVEN ARNOLD MAJIEDT, CONSTITUTIONAL COURT OF SOUTH AFRICA

Cite: Steven A Majiedt, Global South Network Guest Lecture Series, 30 October 2023. https://globalsouthnetwork.com/judicial-independence-and-judicial-activism-in-the-face-of-transformative-constitutionalism-and-legislative-and-executive-inertia-and-incapacity/

South Africa has one of the most progressive Constitutions in the world. It contains as a founding value a firm commitment to the rule of law as well as, amongst others, founding values of freedom, dignity, equality and accountability. Some have described our Constitution as a bridge away from a culture of authoritarianism to a culture of justification – a culture in which every exercise of power is expected to be justified.[1]  The epilogue of South Africa’s 1993 interim Constitution describes that document as being:

“a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.

Ours is one of transformative constitutionalism – a legal process to bring about the changes that are necessary for the establishment of a more egalitarian and just society based on equality, freedom and human dignity encapsulated in the Constitution. There is no single universally accepted definition of transformative constitutionalism, which is understandable given its dynamic evolving nature. Axiomatically, it envisages fundamental change in all facets of life. Former Chief Justice Langa expressed it thus:

“This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change. But how must we change? How does the society on the other side of the bridge differ from where we stand today?… Transformation … is a social and an economic revolution”.[2]

Transformative constitutionalism was first enunciated by Karl Klare who described it as:

“… a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through non-violent political processes grounded in law … In the background is an idea of a highly egalitarian, caring, multicultural community, governed through participatory, democratic processes…”.[3] (Emphasis added.)

The Constitution would only have meaning to ordinary people, particularly the poor and vulnerable, if the rights, values and principles in it are translated into something tangible for them. The socio-economic and political aspirations of the people must be realised – transformation must be seen to be happening. It was eloquently expressed thus by Mahomed J in the well-known death penalty case, S v Makwanyane:

“In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution”.[4]

The transformation project is plainly a journey and an arduous one at that, as opposed to merely crossing a bridge, replete with complexities and challenges. Three decades later, while we in South Africa can celebrate the victory of overcoming apartheid, the promise of a democratic South Africa based on the achievement of “a more equal society” and one in which human rights, freedoms and human dignity has been advanced, remains questionable and the subject of much debate. That holds true in particular in respect of the realisation of the socio-economic rights, like education, housing and health, but that is a topic (a complex one at that) for another day.

It is well known that South Africa is in the midst of turbulent times, brought about in the main by rampant corruption, pervasive incompetence and marked inertia on the part of both policymakers/politicians and bureaucrats. The last decade or more has seen the country rapidly lose its global stature as a model democracy. These challenges permeate all facets of public life and adversely affect the lives of ordinary people. A rapid and ongoing decline in the delivery of basic services has triggered widespread sporadic civil protest and next year’s general elections are predicted to be an acid test for the governing party. Troublingly, it has also given rise to growing constitutional scepticism which appears to be evolving into calls in some quarters for the abolition of the Constitution.

Another worrying feature is that the executive and legislature increasingly fall short of public expectations to execute their constitutional mandates. Policies and plans to realise the aspirations outlined in the Constitution fail to materialise or take inordinate time to do so. Laws manifesting these plans and policies are lacking, or also take too long to be passed, or fail to pass constitutional scrutiny. These failings and shortcomings place undue pressure on the third arm of government, the judiciary.

Axiomatically, fundamental constitutional rights are inextricably linked to and dependent upon concomitant constitutional obligations on the part of the state. The obligations imposed by a constitution self-evidently fall upon the executive and legislative arms. Courts and the judiciary are the guardians of a constitution and the rights and obligations contained in it. When state obligations under the Constitution fail, the judiciary must step up and play its part. It must do so as the Constitution demands, fearlessly and without favour. Judicial independence is central to this crucial imperative. But, stepping up is constrained by the doctrine of separation of powers, which I briefly touch upon next.

THE TENSION BETWEEN JUDICIAL INDEPENDENCE AND THE SEPARATION OF POWERS

How do judicial independence and the separation of powers co-exist and how do we balance them when they are in tension with each other, as is often the case?  How do we map their contours so as not to minimize or even decimate the one or the other?  More directly – how do our courts assert their independence under the supreme law by intervening in the domain of the other two arms of the state only if strictly required to do so, mindful that all exercise of power is constrained by the parameters set out in the Constitution?  Separation of powers, as a mechanism for the protection of human rights, has resulted in these two principles, the separation of powers and human rights, being referred to as the “core of constitutionalism”.[5]

The principle of judicial independence is closely related to that of separation of powers (the trias politica), in fact the latter might be argued to be part of the institutional support structure of judicial independence.  This was expressed by Currie and De Waal, where they stated:

“The doctrine of separation of powers underlies the principle of judicial independence: the idea that only the judicial branch of government should discharge judicial functions and that it should do so free of interference by the other two branches.  Independence also expresses the idea that the judiciary should decide disputes impartially and without bias.”[6]

In contemporary constitutional theory, the doctrine of the separation of powers is said to be an element of constitutionalism that divides and constrains public power through distinctive constitutional institutions.[7] It is intended to be a bulwark against authoritarianism, in order that arms of government exercise only those powers afforded to them in law, so that they are prevented from accumulating excessive powers and to deter the arbitrary exercise of power.

Former Chief Justice Langa reminded us that in post-apartheid South Africa, “the separation of powers doctrine was employed to ensure that the new system of government contained within it the necessary ‘checks and balances’ to uphold the values which must now be part of our lives”.[8]

Minister of Public Works v Kyalami Ridge Environmental Association[9] provides a useful exposition of this doctrine.  There, the Constitutional Court stated that the Constitution makes provision for a separation of powers between the legislature, the executive and the judiciary, and that “this separation ordinarily implies that the legislature makes the laws, the executive implements them and the judiciary determines whether in the light of the Constitution and the law, conduct is lawful or unlawful”.[10]  The Court held that “though the separation prescribed by the Constitution is not absolute, and on occasions some overlapping of functions is permissible, action that is inconsistent with the separation demanded is invalid”.[11]

The South African Constitution does not prescribe the form that separation of powers should take.[12] What is certain though, is that ours is not a model of absolute separation, but partial separation.[13] Cameron J in Mwelase gave some insight into what the uniquely South African model of separation  of powers ought to look like:

“Nor does the separation of powers imply a rigid or static conception of strictly demarcated functional roles.  The different branches of constitutional power share a commitment to the Constitution’s vision of justice, dignity and equality.  That is our common goal.  The three branches of government are engaged in a shared enterprise of fulfilling practical constitutional promises to the country’s most vulnerable.  These joint efforts will not always be frictionless”.[14]

JUDICIAL DEFERENCE

The principle of separation of powers strengthens the arm of the judiciary, as is evident from the provisions of section 165 of the Constitution.[15]  However, it applies both ways.  The judiciary may not encroach on the sphere that properly belongs to the legislature or the executive.  This is a principle that is oft cited in administrative law in particular, given its subject matter.  Courts must exercise self-restraint as is evidenced in cases like Grootboom[16] and Soobramoney.[17] In both these cases the Constitutional Court’s deference to the executive elicited some criticism as a failure to properly enforce socio-economic rights. Judicial deference pursuant to separation of powers is thus an essential brake on judicial activism.[18] But judicial deference does not imply judicial timidity or an unreadiness to perform the judicial function.[19]  Judges must grasp the nettle and assert their independence while respecting the separation of powers principle.  The CC made plain in Economic Freedom Fighters (the Nkandla case)[20] that considering whether to hold the National Assembly accountable may implicate separation of powers.[21]  The Court observed that the Judiciary as one of three arms of government must always bear in mind that it does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independence of other branches of government.

Another description of this principle from further afield reads:

“This doctrine concerns not the legal limits to jurisdiction but the wise exercise of judicial discretion having regard to the limits of the courts’ institutional capacity and the constitutional principle of separation of powers.  It is essential that the courts do not abdicate their responsibilities by developing self-denying limits on their powers”.[22]

Traditionally judicial deference is undergirded by three intersecting principles, namely courts’ views on their democratically legitimate role in a constitutional democracy, their views on their appropriate role taking into account their institutional limitations, and the nature of a dispute before a court.

South Africa is on a journey to transforming our social order, with the Constitution as the guide map.  The courts, particularly the Constitutional Court, as guardians of the Constitution, axiomatically play a central role in that voyage.  There has been criticism that this journey is too slow for too many and our country is said to be the most unequal society in the world.[23]  The snail’s pace, some say, is due to the Constitutional Court’s (and that of other courts) undue deference to the other arms of government and courts’ interpretation and enforcement of socio-economic rights. Judging in South Africa is no easy task, particularly when you sit in the apex court. One must be acutely mindful of the travails of steering one’s way in judicial waters past the hazardous obstacle of deference to other arms of government.  Get it wrong in attempting to second guess the executive or the legislature and the consequences may be too ghastly to contemplate.  On the other hand, overly and undue judicial deference can conceivably stultify our quest for the tangible realisation of the rights in our Constitution, particularly the socio-economic rights.  Judges must not be disparaging of their own constitutional legitimacy.  They should not shy away from their weighty constitutional mandate.  For to do so, would be to ignore the warning of Judge Learned Hand: “A society whose judges have taught it to expect complaisance will exact complaisance . . . ”.[24]

DO THE PRINCIPLES OF SEPARATION OF POWERS AND JUDICIAL DEFERENCE STOP THE CONSTITUTIONAL COURT FROM EXERCISING THEIR CONSTITUTIONAL OVERSIGHT OBLIGATIONS?

The separation of powers and judicial deference cannot, and in fact do not, stand in the way of the courts exercising their constitutional oversight obligations. The Constitutional Court recognised in Doctors for Life International v Speaker of the National Assembly and others,[25] that, although the “constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings . . . [c]ourts are required by the Constitution “to ensure that all branches of government act within the law” and fulfil their constitutional obligations”. In our law a failure by Parliament to hold Cabinet members to account would touch upon a matter central to the model of democracy established by the Final Constitution[26] and such a failure may, in a proper case, be justiciable.[27]

There are many instances where Parliament has failed to meet the deadline imposed by the CC to enact remedial legislation in instances where statutory provisions had been declared unconstitutional. Parliament would, as a matter of course, seek an extension of the deadline and must do so before the deadline. I emphasise this because I will presently discuss a case which went seriously awry in this regard. I mention some of these cases in brief.[28] Later, I will briefly allude to cases where the President has failed to comply with his constitutional obligations and I will discuss how the CC has dealt with it.

SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS V NEW NATION MOVEMENT NPC AND OTHERS

I start with a case where an extension was sought by Parliament, not just once or twice, but for a third time: Speaker of the National Assembly and others v New Nation Movement NPC and others.[29] The CC had on 11 June 2020 in New Nation Movement II[30]  declared the Electoral Act unconstitutional to the extent that it stipulates that adult citizens may be elected to the National Assembly and Provincial Legislatures only through their membership of political parties.[31]  The Court in the first order suspended the declaration of invalidity for a period of 24 months to afford Parliament an opportunity to remedy the defect. That period of suspension expired on 10 June 2022.  On 10 June 2022, and arising from an application to the Court by the applicants, an order was issued extending the suspension of the order for a period of six months, that is, from 10 June 2022 to 10 December 2022.  On 9 December 2022, the CC made an interim order, further suspending its order from 10 June 2022 to 31 January 2023, pending a final determination of the application.  The interim order was granted to avoid the lapse of the second order on 10 December 2022 and the coming into effect of the declaration of invalidity as it was clear that Parliament would not be able to meet that deadline.  The interim order also called for submissions from the parties. After the receipt of the submissions the CC on 20 January 2023 further suspended the order from 10 December 2022 to 28 February 2023.

Ultimately, Parliament passed the Electoral Amendment Bill on 23 February 2023, the President signed it into law on 13 April 2023 and it was promulgated as the Electoral Amendment Act on 17 April 2023. The amendments, amongst others, allow independent candidates to stand for election to the legislature. As a matter of interest, the Amendment Act has been challenged again and came before the CC as an urgent direct access application. It concerns the provisions that provide for 200 seats in the National Assembly to be allocated from regional lists and 200 seats to be allocated from the compensatory lists.  The contention before the CC is that Parliament acted unconstitutionally in splitting the seats in the National Assembly in that manner. A second challenge concerns the higher threshold that independent candidates must attain before being elected compared to candidates from political parties, to meet the requirement of proportionality in the Constitution. Judgment has been reserved in both matters, which were heard together.

In granting an extension for the third time, the CC held that “[t]he predominant consideration in the exercise of this power is the interests of justice”.[32]  It referred to Electoral Commission of South Africa, where it had stated that “extensions should be granted with great caution and ‘not be granted simply as a matter of course or at the last minute’”.[33] The Court also held that the power to extend the period of suspension of a declaration of invalidity is to be exercised sparingly.  A proper case justifying the need for an extension must be made out because the effect of suspending the operation of a declaration of invalidity is to preserve law which has been found unconstitutional and void, usually, as was the case here, to afford Parliament opportunity to remedy the defect. The Court warned that its conclusion that the extension sought by the applicants was reasonable and justified “should not be mistaken for tolerance of Parliament’s tardiness or failure to meet its deadlines”.  The Court “was merely cognisant of the nature of the matter, which clearly transcends the interests of the parties, and implicates the interests of the general public and our democracy”.  These factors, in the view of the Court, warranted the grant of the extension as a just and equitable remedy and it was in the interests of justice to make an order towards that end.[34]

In Electoral Commission of South Africa, the CC had to consider an urgent application by the Electoral Commission to protract an order suspending a declaration of invalidity the Court had issued in 2016 in another matter, Mhlope.[35] There, the Court had declared that the Commission’s failure to record all available voters’ addresses on the national common voters’ roll was inconsistent with its rule of law obligations under section 1(c) of the Constitution and invalid. Although the Court split in respect of the granting of an extension, the majority had no quibble with the view expressed in the minority judgment that “extensions should be granted with great caution and “not be granted simply as a matter of course or at the last minute”.

The minority judgment explained that there are certain factors that must be considered in determining whether to grant an extension, namely:

(a) the sufficiency of the explanation provided for failing to comply with the original (or extended) period of suspension;

(b) the potential prejudice that is likely to follow if an extension is or is not granted;

(c) the prospects of curing the constitutional defects within the new deadline or, more generally, the prospects of complying with the deadline;

(d) the need to bring finality to litigation; and

(e) the need to promote the constitutional project and ensure effective state administration.

It said that these factors must be weighed and balanced to craft an order which is “just and equitable”. It regarded the following factors of particular importance:

(a) The prospects of complying with the deadline.

(b) The potential prejudice that is likely to follow if an extension is or is not granted.

(c) The need to promote the constitutional project.

MINISTER OF HOME AFFAIRS V LAWYERS FOR HUMAN RIGHTS

Lastly, in respect of cases dealing with parliamentary failure to meet deadlines, a very recent case of extraordinary laxity in complying with a CC deadline to enact remedial legislation after the Court had declared a section in the Immigration Act unconstitutional – Minister of Home Affairs v Lawyers for Human Rights.[36] In its order of 2017, the CC had declared that section 34(1)(b) and (d) of the Act is inconsistent with sections 12(1) and 35(2)(d) of the Constitution and therefore invalid. The Court identified three constitutional defects in the section. The Court afforded Parliament 24 months, being by 29 June 2019, to correct the defect in the Act, during which time the declaration of invalidity was suspended and interim relief was granted to cure the constitutional defects. Parliament failed to meet the 29 June 2019 deadline to enact the corrective legislation before the suspension period expired.  The Minister and Director-General of Home Affairs approached the CC in July 2022 on an ex parte basis by way of an urgent direct access application for a “revival” of the 2017 Order for a further period of two years as Parliament had still not enacted corrective legislation. This had resulted in undesirable confusion and uncertainty: courts have taken divergent positions on the legal effects of the expiry of the suspension period. Some Magistrates’ Courts had incorrectly applied the 2017 Order by requiring detainees to prove the lawfulness of their documentation status. Some Magistrates had been unwilling to confirm detentions beyond 30 days resulting in almost automatic releases from detention in cases where deportation should occur; some immigration officers had detained detainees beyond 30 days without bringing them before a court; and some Magistrates had been instructed not to handle section 34 applications.

The litigation was a shambles and in a unanimous judgment written by me and handed down just this morning by one of my colleagues, we condemned the egregious fashion in which the litigation had been conducted and the legal representatives’ failure in their duty to represent their clients as required by their professional rules. In sum, the applicants’ first legal representatives, amongst other things, had inexplicably approached the High Court on an urgent ex parte basis for an incompetent order; failed to join and serve papers on LHR in both the High Court and CC proceedings; and either failed or deliberately omitted to mention the relevant case law providing that this Court has no power to extend a suspension period after its expiry. The Court asserted that a higher duty is imposed on public litigants, as the Constitution’s principal agents, to respect the law, fulfil procedural requirements and tread respectfully when dealing with rights. It warned that the legitimacy of our legal system will fall into disrepute if the shockingly poor conduct of litigation as in this case is allowed to continue unchecked. The Court accordingly ordered that the fees of the applicant’s first legal representatives be disallowed.

The Court also severely deprecated the Minister’s and Director-General’s laxity in the conduct of the litigation. It held that the Minister is ultimately accountable for the fulfilment of his Department’s objectives and for the actions or failures of his officials and he is responsible for the executive powers and functions assigned to him. It noted that the Director-General had admitted to gross negligence in the ligation in that he had failed to fully apply his mind to the contents of affidavits, despite confirming their contents under oath, and had failed to consult with the Minister prior to attesting to an affidavit on his behalf. The Court accordingly ordered that the applicants had to pay LHR’s costs and, of these, the Minister had to pay 10% and the Director-General 25% in their personal capacities. In doing so, the Court emphasised that personal costs orders against public officials who flout their constitutional obligations serve to vindicate the Constitution and hold such officials to account.

VON ABO V THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA

An interesting case concerning the failure of the President in complying with his constitutional obligations is Von Abo.[37] There, the CC was asked to confirm a declaratory order made in the Pretoria High Court that the failure of the President, as one of several government respondents, to consider and decide properly the request of Mr Von Abo for diplomatic protection against the violation of his property rights by the government of Zimbabwe, was inconsistent with the Constitution and invalid.[38] Mr Von Abo was a South African citizen and businessman who held various properties and farming interests in Zimbabwe. His complaint against the government of South Africa flows from its alleged failure to afford him diplomatic protection against his proprietary interests being “violated” by the government of Zimbabwe. This related to the seizure of farms owned by White farmers by the Zimbabwe government by the Mugabe government.

The CC declined to confirm the High Court’s declaratory order – it stated that, when declaring conduct of the President unconstitutional, it is necessary to indicate precisely which conduct is attributable to the President, and falls foul of the Constitution.[39] This requirement is important for at least two reasons. One important reason is that a concisely worded order would disclose the character of the conduct of the President in issue and thereby indicate whether the court concerned was properly clothed with jurisdiction to resolve the dispute. Also the President, as respondent is entitled to know which conduct has offended in order to decide whether to appeal or to correct the constitutionally recalcitrant conduct in issue. The CC pointed out that the High Court, in its judgment, did not specify the conduct of the President it found to be inconsistent with his constitutional obligations. 

Ultimately, the CC held that “the portion of the order of the High Court that declares the conduct of the respondents to be invalid does not concern the conduct of the President within the meaning of section 172(2)(a) of the Constitution and is therefore not subject to confirmation, despite the fact that he was cited as a party to the proceedings”. The Court did, however, emphasise that its conclusion did not in any way diminish the relief granted and consequently did not harbour any prejudice of any type for Mr von Abo, the applicant. Put otherwise, it said, the government’s liability towards HIM cannot be said to be in any way diminished only by reason of paragraph 1 of the High Court order not having been confirmed by the CC.

In the infamous Nkandla case, the CC held that former President Zuma had failed to comply with his constitutional obligations by knowingly deriving undue benefit from the irregular deployment of State resources.[40]  This followed upon a report by the Public Protector into security upgrades at President Zuma’s private residence at Nkandla. Those upgrades included a number of non-security elements. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit (the security upgrades) that had accrued to him and his family.  Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.

The Public Protector’s report was submitted not only to the President, but also to the National Assembly, presumably to facilitate compliance with the remedial action in line with its constitutional obligations to hold the President accountable. For well over one year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Two opposition parties, the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA), brought applications against the National Assembly and the President. The relief sought, amongst others, was a declaratory order that the President failed to fulfil his constitutional obligations, and an order that the President comply with the remedial action taken by the Public Protector by paying a reasonable percentage of the reasonable costs expended on non˗security features at his private residence.

In declaring the President’s conduct to be inconsistent with the Constitution, the CC emphasised that:

“The President is the Head of State and Head of the national Executive.  His is indeed the highest calling to the highest office in the land.  He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country.  Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed. The promotion of national unity and reconciliation falls squarely on his shoulders.  As does the maintenance of orderliness, peace, stability and devotion to the well-being of the Republic and all of its people.  Whoever and whatever poses a threat to our sovereignty, peace and prosperity he must fight. To him is the executive authority of the entire Republic primarily entrusted.  He initiates and gives the final stamp of approval to all national legislation. And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him. Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis.  He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project…He is required to promise solemnly and sincerely to always connect with the true dictates of his conscience in the execution of his duties.  This he is required to do with all his strength, all his talents and to the best of his knowledge and abilities”.[41]

The Court held that the President had failed to uphold, defend and respect the Constitution as the supreme law of the land.  This failure was manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers.  The second respect in which he failed relates to his shared section 181(3) obligations.  He was duty-bound to, but did not, assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action.

The Court also found that Parliament had failed in its constitutional duty to hold the President and other members of the Executive accountable. It held that, on a proper construction of its constitutional obligations, the National Assembly was duty-bound to hold the President accountable by facilitating and ensuring compliance with the decision of the Public Protector. Parliament’s resolution based on the Minister’s findings exonerating the President from liability was inconsistent with the Constitution and unlawful.

CONCLUSION

To conclude: I said right at the outset that in South Africa now courts are under increasing pressure to stray beyond their constitutional bounds of power. As bad as it may appear to us to be in a case of executive or legislative recalcitrance and inertia, the temptation to tread where we ought not to must be resisted. It is another complex topic on its own, but it would suffice to say in this regard we need only look at how rarely in administrative law cases our courts order substitution as opposed to a remittal to the relevant decision-maker. A key consideration in this is that a court must stand back and objectively and dispassionately ask itself whether it is in as good a position as the decision-maker to make the decision.  The second is whether the decision of the decision-maker is a foregone conclusion. There are other considerations too, such as bias and perceived bias. Courts are ill-suited to draw up or redraw budgets, reconfigure governance plans and policies, pass laws, make appointments etc.

South Africa is experiencing the pain of corruption, incompetence and apathy and the pain is acutely felt in particular by the poor and marginalised. Section 172 of our Constitution affords the courts wide powers of granting just and equitable relief in instances where any law or conduct are declared unconstitutional. There is also section 38 that requires courts to grant effective relief, that is, relief that is appropriate to protect and enforce the Constitution.

I end by saying this: courts in SA must remain vigilant and diligent in fulfilling our high duty as guardians of the Constitution. We must act decisively, boldly and expeditiously. But we must stay within the bounds of our powers as the principles of legality and separation of powers demand of us. It is a tightrope, but walk it we must, lest the law and the courts lose the credibility that it still has in SA today.

ENDNOTES/REFERENCES

  1. E Mureinik “A bridge to where? Introducing the interim Bill of Rights” (1994) SAJHR 31- 48.
  2. P Langa “Transformative Constitutionalism” (2006) Stellenbosch Law Review 351. See also: Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26 ; 1996(4) SA 744(CC) ; 1996(10) BCLR 1253 (CC) at para 10.
  3. K Klare “Legal culture and transformative constitutionalism” (1998) SAJHR 146 at 50.
  4. S v Makwanyane [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391 (CC) at para 262. 
  5. Currie and De Waal, The Bill of Rights Handbook 6th Edition (Juta & Co, Cape Town 2013) at 8.
  6. Id at 17.
  7. Loughlin and Walker “Introduction” in Loughlin and Walker (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press 2007) at 1.
  8. Langa “‘A delicate balance’: The place of the judiciary in a constitutional democracy – the separation of powers in the South African Constitution” (2006) South African Journal on Human Rights 2 at 9.
  9. 2001(3) SA 1151 (CC).
  10. Id at para 37.
  11. Ibid.
  12. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) (First Certification Judgment). See also Certification of the Amended Text of the Constitution of the Republic of South Africa 1997 (2) SA 97 (CC) paras 52, 63; De Lange v Smuts NO 1998 (3) SA 785 (CC) at paras 60-1.
  13. First Certification Judgment above n 12 at para 109. This was recently confirmed in a judgment of the Constitutional Court handed down on 3 October 2023, Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance; Commissioner for the South African Revenue Service v Ambassador Duty Free (Pty) Ltd; Minister of Finance v Ambassador Duty Free (Pty) Ltd [2022] ZACC 31 at paras 75 and 98 (majority) and para 173 (minority).
  14. Mwelase v Director-General for the Department of Rural Development and Land Reform 2019 (6) SA 597 (CC) at paras 46-7.
  15. Section 165 reads: “Judicial authority The judicial authority of the Republic is vested in the courts. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. An order or decision issued by a court binds all persons to whom and organs of state to which it applies”.
  16. Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).
  17. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).
  18. Professor Cora Hoexter describes judicial deference as: “[A] judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; to accord their interpretations of fact and law due respect; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate.  This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate corruption and maladministration.  It ought to be shaped not by an unwillingness to scrutinize administration action, but by a careful weighing up of the need for and the consequences of judicial intervention.  Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal”.
  19. As stated by Schutz JA in Minister of Environmental Affairs and Tourism and others v Phambili Fisheries (Pty) Ltd and another [2003] 2 All SA 616 (SCA) at para 50, endorsed in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism at para 46.
  20. Economic Freedom Fighters v Economic Freedom Fighters v Speaker of the National Assembly and others; Democratic Alliance v Speaker of the National Assembly and others [2016] ZACC 11; 2016(5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (Economic Freedom Fighters).
  21. Id at para 43.
  22. Lester and Pannick Human Rights Law and Practice (2nd ed, Butterworths, London 2004) at para 3.19, n 3.  See also R. v Lambert [2002] Q.B. 1112 at 1124 where Lord Woolf said: “legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention”.
  23. 2022 World Bank report: “Inequality in Southern Africa”.
  24. Hand The Contribution of an Independent Judiciary to Civilisation, in The Spirit of Liberty 3rd ed (Knopf, New York 1960) at 163.
  25. 2006 (6) SA 416 (CC), 2006 (12) BCLR (CC).
  26. Doctors for Life at paras 37-8. The Court held: “Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government.  They too must observe the constitutional limits of their authority.  This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution. But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament.. . .Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled’.  Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations.  This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values’.   Section 167(4)(e), in particular, entrusts this Court with the power to ensure that Parliament fulfils its constitutional obligations.. . .It would therefore require clear language of the Constitution to deprive this Court of its jurisdiction to enforce the Constitution”.
  27. Id at para 32.
  28. The full list of cases is: Speaker of the National Assembly and Others v New Nation Movement NPC and Others (CCT 110/19) [2023] ZACC 12; 2023 (7) BCLR 897 (CC) (20 April 2023) Speaker of the National Assembly and Another v New Nation Movement NPC and Others (110/19) [2022] ZACC 24; 2022 (9) BCLR 1165 (CC) (29 June 2022) Minister of Justice and Correctional Services v Ramuhovhi and Others (CCT194/16) [2019] ZACC 44; 2020 (3) BCLR 300 (CC) (26 November 2019) South African Social Security Agency and Another v Minister of Social Development and Others (CCT48/17) [2018] ZACC 26; 2018 (10) BCLR 1291 (CC) (30 August 2018) Electoral Commission of South Africa v Speaker of the National Assembly and Others (CCT55/16) [2018] ZACC 46; 2019 (3) BCLR 289 (CC) (22 November 2018) Minister of Agriculture, Forestry and Fisheries v National Society for the Prevention of Cruelty to Animals (CCT186/16) [2016] ZACC 26; 2016 (11) BCLR 1419 (CC) (25 August 2016) Acting Speaker of the National Assembly v Teddy Bear Clinic for Abused Children and Another (CCT 54/15) [2015] ZACC 16; 2015 (10) BCLR 1129 (CC) (15 June 2015) Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another [2015] ZACC 12  Minister of Transport and Another v Mvumvu and Others (CCT 62/12) [2012] ZACC 20; 2012 (12) BCLR 1340 (CC) (27 September 2012) Minister for Justice and Constitutional Development v Nyathi and Others (CCT 53/09) [2009] ZACC 29; 2010 (4) BCLR 293 (CC) ; 2010 (4) SA 567 (CC) (9 October 2009) Minister of Social Development and Others, Ex Parte (CCT14/06) [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC) (9 March 2006) Zondi v Member of the Executive Council for Traditional and Local Government Affairs and Others (CCT73/03) [2005] ZACC 18; 2006 (3) SA 1 (CC); 2006 (3) BCLR 423 (CC) (29 November 2005).
  29. [1] [2023] ZACC 12; 2023(7) BCLR 897 (CC).
  30. [1] [2020] ZACC 11; 2020 (6) SA 257 (CC); 2020 (8) BCLR 950 (CC). 
  31. [1] [2020] ZACC 11; 2020 (6) SA 257 (CC); 2020 (8) BCLR 950 (CC). 
  32. New Nation Movement II at para 22.
  33. [1] Electoral Commission of South Africa v Speaker of the National Assembly [2018] ZACC 46; 2019 (3) BCLR 289 (CC) at para 69.
  34. New Nation Movement II at para 23.
  35. Electoral Commission v Mhlope [2016] ZACC 15; 2016 (5) SA 1 (CC); 2016 (8) BCLR 987 (CC).
  36. [1] Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home Affairs and Others (CCT 38/16) [2023] ZACC 34, handed down on 30 October 2023.
  37. [1] Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (10) BCLR 1052 (CC); 2009 (5) SA 345 (CC).
  38. [1] Section 172(2)(a) of the Constitution requires that an order declaring the President to have failed in a constitutional obligation be confirmed by the Constitutional Court.
  39. [1] Von Abo above n 37 at para 46. The Court cited Minister of Home Affairs v Liebenberg [2001] ZACC 3; 2002 (1) SA 33 (CC); 2001 (11) BCLR 1168.
  40. [1] Economic Freedom Fighters above n 20.
  41. [1] Id at paras 20-1.