Litigation is increasingly becoming a permanent feature of our political landscape, as DA da facto (person who really calls the shots in the DA) leader James Self calls its “Lawfare”.
Political parties tend to run to the courts when they disagree or more importantly cannot win a debate, a vote on political issues in Parliament, this is done in ma bid to force the judicial arm of government to adjudicate their disputes. Two current cases come to mind: the DA’s attempt to force President Jacob Zuma to furnish the reasons for his recent cabinet reshuffle and the UDM’s court bid to force National Assembly Speaker Baleka Mbete to have its Parliamentary motion of no confidence in the President decided by a secret ballot.
It is evident from recent actions by the DA that political mileage is at the centre strategy of these actions, hence the term Lawfare. The deeper the DA can thrust the knife into the ANC on contentious political issues, the greater the fissures in the ruling party. And this our courts must be mindful of.
When the courts find against the executive or the legislature, some critics inevitably interpret this as an example of “judicial overreach”—an instance of the judges encroaching into territories that belong to other two arms of government. It is perceptions of this alleged overreach that inspired a recent march against the judiciary by some ANC supporters in Durban.
Some have gone so far as to argue that our constitutional arrangement militates against social transformation. They reckon that South Africa needs to return to the system of Parliamentary supremacy, which prevailed under apartheid, to give the executive more power to ratchet up social change without being dragged to the courts to justify its policy decisions.
Are our courts really overreaching? And is there anything they can do to find a balance between political interference and keeping political power in check?
Perhaps before we answer that question we need to distinguish between the task of the judiciary in a democracy on the one hand, and that of legislators on the other. Judges are appointed purely on the basis of their legal expertise, amongst others i.e. transformation, gender equality, etc. and are guaranteed tenure of security to ensure that they carry out their duties of interpreting the law impartially. In addition to being vested with the power to craft the law, politicians are democratically elected to make decisions on political and public policy issues. But this power is not unfettered and needs to be kept in check. The defining difference here is that politicians make the laws and judges enforce their compliance.
As the late Chief Justice Pius Langa reminded us, our Constitution promotes and protects the doctrine of the separation powers between the arms of the state, even if it doesn’t spell that out explicitly. This was done, he said, to build into our system of government the necessary checks and balances in order to uphold the values that inform our democratic society.
While it looks neat on paper, in practice this balance is incredibly difficult to strike because the exercise of political power is rarely clear-cut. As legal academic Freddy Duncan Mnyongani has pointed out, “courts will not avoid getting involved in disputes of a political nature…but the judiciary has a task to ensure that the courts continue to command moral authority.” Keeping the courts above the political fray partly entails, he reckons, that the courts must execute their mandate without fear, favour or prejudice. It is important that the notion of moral authority be defined. As judges like all other folk have values and perspectives on everything in life. The notion of dispassionate judges comes with time and age and even then, culture, religion and other societal norms reflect on their judgments.
The basic function of the judiciary in a Constitutional Democracy such as ours is to ensure that the executive and legislative arms of government act within the law and the Constitution and this applies to the courts as well, not to be seduced into applying judgments over matter beyond its mandate and where the law is clear. This means there will always be that constructive tension in a democracy between the judiciary and the other arms of the state.
In fact, our own Constitutional Court has over the years demonstrated that the courts could avoid being activist when dealing with cases that involve potential conflict between the spheres of government. A number of its landmark rulings show how it has been adept at avoiding usurping the powers of the executive, while at the same time ensuring that politicians comply with the dictates of the Constitution.
In South African Association of Personal Injury Lawyers versus Heath, our apex court struck down as unconstitutional sections of the Special Investigating Unit’s founding Act that allowed a sitting judge to head the SIU, a law enforcement outfit that falls under the control of the executive. In other words, the court came out strongly in favour of the idea of the strict separation of the judicial from executive powers.
Another example is how the court deals with political questions in the case of the United Democratic Movement versus The President of RSA in 2003. The court refused to entertain political questions about the demerits of the floor-crossing legislation that had been brought before it, choosing to consider only their constitutionality. It also held that there was little scope for challenging changes to the law that the legislature passed in line with its prescribed procedures and majorities.
Similarly, it refused to interfere with the work of the legislature in the first Glenister case, where a businessman challenged the 2008 Cabinet decision to dissolve the Scorpions. The court refused the applicant direct access to it on the grounds that the executive was carrying out its mandate to initiate and prepare legislation. The Court also recognised that Parliament should be given the latitude to deal with the draft bill, which was already before it.
But the Court has been more assertive when it comes to enforcing the realisation of socio-economic rights for the poor as we’ve seen in landmark cases like Grootboom (housing), the Treatment Action Campaign (access to ARV drugs), and Mazibuko v the City of Johannesburg and Others (access to water). As legal commentator Oscar Sang has observed, the enforcement of socio-economic rights demands that the court should encroach into the policy-making sphere. He adds that what these cases demonstrate “is that the judiciary can enforce socio-economic rights while taking notice of the separation of powers”.
The judiciary will continue to play its watchdog role. The other side of the rule of law coin is that we must accept the authority and decisions of the courts, and use whatever legal recourse we have at our disposal to appeal when we disagree with them.
It is perhaps a good thing that our apex court, unlike its Indian counterpart, doesn’t actively seek to hear cases. It waits for them to be brought before it. Can you imagine what would happen if it sought, or even avoided, to hear a case like Nkandla? It would be accused of either kowtowing to the executive or of pursuing a regime-change agenda.
Inevitably, in a young democracy that is still developing its jurisprudence courts will be confronted with political questions. The past 23 years have shown that the judiciary has what it takes to keep the executive in check without overreaching. Much older jurisdictions like the United States are still grappling with the question of the proper relationship between the three spheres of government to this day. The courts have become a sight of struggle are being used opportunistically to disempower the ability for the executive to progressively
Our Courts must respect the will of the people in entrusting a political party (every 5 years) to deliver its promises of jobs, basic human services, effective administration of government and security in the best possible manner within the ambit of the law and constitution. Judicial reviews are a double edge sword, we must be careful how we wield it.