Constitutional Hill

February 28th, 2012:

Media Statement by Minister Radebe about Con Court “Review”

Media statement by the Minister of Justice and Constitutional Development, Jeff Radebe, on the occasion of releasing a discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State on 28 February 2012, Cape TownOn 4 February 1997 the Constitution of the Republic of South Africa, 1996 came into operation, symbolising the birth of the South African democratic state founded on the supremacy of the constitution and the rule of law. It is befitting that we today publish the Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State in remembrance and celebration of the 15th anniversary of this supreme law of the Republic that positively changed the course of the South Africa’s history. In the recent State of the Nation Address delivered on 9 February 2012, President Zuma, described our basic law of the land as follows:

 “The Constitution is South Africa’s vision statement, which guides our policies and action. We reaffirm our commitment to advance the ideals of our country’s Constitution at all times”.

Therefore, consistent with the above statement by President Zuma, the release of this Document marks (the beginning of the) articulation of policies that would guide the further transformation of the judicial system in South Africa.

The Document, which was considered and adopted by Cabinet on 23 November 2011, is an overview of the protracted debate and negotiations within the judicial sector and the legal profession which spans over a period of 14 years. Time is now opportune to initiate a national dialogue on these fundamental principles of judicial reform which have crystallised over time.

The transformation of the judicial system is a constitutional imperative which is entrusted upon Government as a branch of the state that is assigned the responsibility of developing and implementing national policy and of initiating legislation, among others. In particular item 16(6) of Schedule 6 to the Constitution states that:

“(a) As soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a)”

The above constitutional provisions are predicated on Item 16(1) of the Schedule 6 to the Constitution, which provides that

 “(1) Every Court, including courts of traditional leaders, existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable to it, and anyone holding office as a judicial officer continues to hold office in terms of the legislation applicable to that office, subject to –

  • Any amendment and repeal of that legislation; and
  • Consistency with the new Constitution”.

The President’s comments relating to the review of the powers of the Constitutional Court is consonant with the rationalisation project mandated by the Constitution.

When the Constitution Seventeenth Amendment Bill and its accompanying Superior Courts Bill were published for public comments in May 2010 as required by the Constitution, divergent views were made by various commentators on the powers and the composition of the Constitutional Court. The comments were made as part of the reorganisation of the courts envisaged in the Constitution. For example in its submission on the Bill the Legal Resource Centre argued that the Constitutional Court’s power to hear “issues connected with decision on a constitutional matter be retained”. On the other hand the General Council of the Bar acknowledged that there were divergent views within its own ranks on this point, with others in favour, while others were opposed to the changing of the jurisdiction of the Constitutional Court. These divergent views reflect the character of our vibrant public participatory discourse.

This Document reflects on, among others, the following themes and principles which underpin the transformation of the judicial sector:

  • The role of the judiciary in transforming the state and society
  • Separation of powers, the independence of the judiciary and the rule of law as foundational values that underpin the democratic society
  • Significant interventions and steps we have taken to enhance the independence and effectiveness of the judiciary
  • The impact of South African jurisprudence on the transformation of society
  • The assessment of the impact of the decisions of the Constitutional Court on the reconstruction of society and the state
  • How the assessment of the impact of the decisions of the Constitutional Court would unfold.

Before I elaborate on the above themes, it is important to give a brief historical background to the transformation discourse.

Historical Background
It is important to have regard to the history of the country’s transition from an apartheid state to a constitutional democracy shaped by the Multi-party negotiations led by the ANC. As part of the political settlement reached during these negotiations the Constitutional Court was to be established as an institution of change entrusted with the mandate of championing the reform of the South African legal landscape including our jurisprudence, which was influenced by the unjust laws of colonialism and apartheid. It is therefore of prime importance, that seventeen years into democracy, a critical assessment of how the Constitution has changed the lives of ordinary citizens be made. The role played by the Constitutional Court is of fundamental importance in this process, hence the necessity to evaluate the impact of our constitutional jurisprudence on society as a whole. I will, later on, provide the details of how this assessment process will unfold.

Throughout the history of the struggle for freedom, the ANC, which celebrates its centenary this year, fought for a free and democratic South Africa. The Bill of Rights adopted by the ANC in 1923, the Africa’s Claims of 1943 and the Freedom Charter of 1955 reflect the ANC’s deep rooted human rights culture which defined its character and stature as a liberation movement that fought for the emancipation of the disenfranchised majority against the tyranny of the apartheid regime. These fundamental policy documents form the basis on which the Constitution of the Republic of South Africa, 1996 is premised.

The Constitution is the supreme law of the land and provides the basis for the transformation of the state and society. It sets out, as its vision, the establishment of a non-racial, non-sexist, equal and prosperous democratic society, founded on human rights. The Bill of Rights enshrined in the Constitution, entrenches justiciable socio-economic rights which underscore the developmental character of the South African state with an overwhelming commitment to social justice. It is these uniquely transformative features of our Constitution that seek to redress the legacy of inequality and deprivation implanted during the 300 years of colonialism and apartheid. In redressing this legacy, the Constitution, in its Preamble, affirms the peoples’ commitment “to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”

The making of the Constitution, which was a culmination of intense negotiations, was quite remarkable, not only because it was open and transparent, but also for its unprecedented levels of popular participation and the breadth of consultation across all sectors of society. The final Constitution was certified by the Constitutional Court, in a move unprecedented world-wide. The Constitution is an embodiment of the values that the ANC stood and fought for. The ANC-led government will defend these values at all cost, including the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy. This re-assurance comes against the backdrop of irresponsible commentary that has been published recently, which is intended to instil fear that the ANC is hell bent on revoking the fundamental rights and freedoms that many had fought and some died for in order for all of us to reap the benefits of a free society. We want to allay those fears and reaffirm our commitment to the Constitution and its values in our quest to building a non-racial, non-sexist and prosperous democratic South Africa.

The role of the judiciary and the courts in transforming the state and society
Despite the significant strides we have made in the 17 years of democracy in realising the values in the Constitution, there are still challenges and hurdles that confront the state in its endeavour to transform society. The National Planning Commission, in its Diagnostic Report released in 2010 acknowledged that “..Though divisions of race and class remain, with inequality more often than not reflecting these lines of division, law, government policy and broad social consensus are seeking to remove these inequalities, rather than entrench them as was the case in the apartheid era”.

The observations of the National Planning Commission find reflection in the address by Justice O’ Regan, a retired judge of the Constitutional Court during the Helen Suzman Memorial Lecture in 2011, when she painted the realities of the South African society as follows:
“The deep inequalities that persist are visible reminders of the effects of apartheid and colonialism. Until these scars are healed, the vision of our Constitution will not have been achieved. There is a great burden on government, in particular to address this historic legacy”.

The challenge for us as we near the end of our second decade of democracy is to consolidate the advances that we have made in such a way that we begin to make a difference in the lives of all South Africans. This should be upper most in our minds as we forge ahead in consolidating our constitutional democracy.

The judiciary has an important role in safeguarding and protecting the Constitution and its values and in ensuring the consolidation of democracy and the realisation of a better life for all. It does this through its constitutionally entrenched judicial authority. Over the years, many in the Judiciary have shown a profound understanding of the constitutional imperatives and set out to defend the basic law of the land. This includes many judgments, particularly by the Constitutional Court, that have reflected a progressive interpretation of the Constitution and social rights in particular. The landmark decisions in Government of the RSA and Others v Grootboom which relates to the provision of housing and the Treatment Action Campaign judgment which pertains to right to health, are among the many judgements of the Constitutional Court which form the building blocks of our constitutional jurisprudence admired world-wide.

Government’s response to court judgments has been respectful and has helped to reinforce the legitimacy of the courts and thereby enhance public confidence in the judicial system. As a direct response to and within the context of its overall constitutional mandate, Government has initiated and promoted laws to give effect to the judgments of the courts. The Police Amendment Act which aims to address concerns raised by the Court in the case of Glenister and the President of the Republic of South Africa is one recent example. Where Government required additional time beyond the timeframe given by the Constitutional Court to rectify the defects in the impugned laws, it has asked for more time to tackle the complex issues and to give full effect to the decision of the court. The State Liability Act is one such example.

Criticism of the decisions of the courts especially where such decisions are against government are usually met with outrage by some commentators and those who purport to act in defence of our Constitution. There is, however supporting literature that in a Constitutional democracy such as ours that criticism of the court’s decisions is both permissible and desirable. This finds reflection in the citation by Justice Felix Frankfurter of the US Supreme Court: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Judges must be kept mindful of their limitation and of their ultimate public responsibility by vigorous stream of criticism expressed with condor however blunt”

It is therefore important that that the role of judicial officers is properly understood by those whose fate and livelihood is dependent on the judgments they give through the courts. Judges are not less immune to public scrutiny than members of the Executive and Legislature.

Separation of Powers and the independence of the judiciary
The Constitution enjoins the three branches and organs of state to strive for the realisation of the democratic values that are enshrined in the Constitution, which include the establishment of an equal society and the eradication of poverty. The Bill of Rights, which is a cornerstone of democracy in South Africa, provides the basis and framework for the attainment of these goals. The Bill of Rights applies to all and binds the legislature, the Executive, the judiciary and all organs of the state. The judicial power of the Constitutional Court in striking down of laws made by the legislature it deems unconstitutional which occurs often in constitutional democracies similar to ours, is a fundamental principle of our constitutional dispensation. It has occurred a number of times where the Constitutional Court had invalidated laws passed by Parliament and the conduct of the President as being inconsistent with the letter and spirit of the Constitution. This is common in constitutional democracies and an affirmation of the vibrancy of our constitutional democracy founded on the supremacy of the Constitution and the rule of law.

President Zuma, when addressing the 2011 Access to Justice Conference reiterated the importance of a clear delineation of responsibilities of the arms of Government and articulated the position as follows:
“ While acknowledging the strides we have made, it is our well considered view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of government, especially with regard to government policy formulation. The Executive, as elected officials, has the sole discretion to decide policies for the Government. This challenge is by Justice VR Krishna Lyer of India who observed that: “Legality is the courts’ province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule”.

Many profound constitutional writers and scholars and the Constitutional Court itself have cautioned of the need for the judiciary to exercise their power of judicial review with great circumspection. The late former Chief Justice Mahomed, the first black Chief Justice of a democratic Republic of South Africa when addressing the International Commission of Jurists in Cape Town in 1998 had this to say on the subject:
“ Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs”.

The Constitutional Court, in the case of State v Makwanyane elaborated on the delicate roles of the branches of government in the context of the separation of powers when it contended that:

 “… This court is not to ‘second guess’ the executive or legislative branches of government or interfere with the affairs that are properly their concern… Our task is to give meaning to the Constitution and, where possible, to do so in ways that are consistent with the underlying purposes and are not detrimental to effective government. The issues raised in the present case… concern the powers of Parliament and how it is required to function under the Constitution… Constitutional control over such matters goes to the root of democratic order… It is of crucial importance at this early stage of the development of our new constitutional order to establish respect for the principle that the Constitution is supreme.”

Justice O’Regan, in her address given at the Helen Suzman Memorial Lecture which I have made reference to earlier, contrasted the roles of Government and the courts in the context of socio-economic rights when she states as follows:

 “… the approach of the Court has been to require government to explain why its policies in the field of social and economic rights are reasonable. Government must disclose to the Court ‘what it has done to formulate the policy, its investigation and research, the alternatives considered and the reasons why the option underlying the policy was selected. This approach permits citizens to hold the democratic arms of government to account through litigation, but does not require government “to be held to an impossible standard of perfection.

Justice O’Reagan also reflected on the importance of judicial modesty and restraint when she remarked:

“…Courts need to be modest about the judicial role in addressing the legacy of our history. They must recognise that their responsibility is primarily to ensure that government works within the threefold framework of legality, rationality and compliance with the bill of rights. Outside of this framework, it is not for courts to impede the functioning of government. There are reasons for this: the first is that legislature, and indirectly, the executive are democratically elected arms of government whose office is determined by popular vote.

In an article by EK Quansah and CM Fombad, Professors of Law of University of Botswana titled Judicial Activism in Africa: Possible Defence Against Authoritarian Resurgence” they wrote:

 “The long history of apartheid and the role which the judiciary played in it and the transformatory foundation laid down by the South African 1996 constitution has led to one commentator to rightly suggest that what obtains in South Africa today is judicial activism of a special type. It is worth noting that section 39 merely requires the South African Judge “when interpreting the Constitution to do what judges should normally do when interpreting a Constitution that is to give effect to its values. This is not necessarily synonymous with judicial activism; nevertheless, it makes it much easier than not for a judge to adopt an activist stance”.

Former Chief Justice Sandile Ngcobo emphasised the equal status of the branches of the state when he delivered a key note address during the Chief Albert Luthuli Memorial Lecture early this year when he stated:

 “Each arm of the government must observe the constitutional limits on its own power and authority – there is no branch that is superior to the others in its service of the constitutional mission of the Republic”.

This reaffirms the position that the three branches of the state are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa.

Significant interventions and steps geared to affirm the independence and the effectiveness of the judiciary
In relation to the administration of justice in particular, we have completed and taken to Parliament several Bills, including the Constitution Seventeenth Amendment Bill and the Superior Courts Bill. The Legal Practice Bill has been approved by Cabinet is due to be introduced soon. We are optimistic that these Acts will be passed during 2012. We have turned around the Criminal Justice System and the working of the Justice Cluster and positive results are starting to show. We have established a formidable foundation to advance judicial reform with a view to enhancing the independence of the judiciary. As part of these institutional reforms the President proclaimed the Office of the Chief Justice, in September 2010 as a national department.

Assessment of the impact of the decisions of the Constitutional Court
We have alluded to the fact that the kind of assessment we set to embark upon is not unusual. It occurs all the time and as research will show, universities undertake form of research to evaluate the social-rights jurisprudence on the lives of peoples. Assessments undertaken by different institutions will be used as resource documents for purposes of our initiative. Ours is an in-depth research focused on implementable solutions and not on academic and curriculum advancement which some of the universities’ project mainly seek achieve. However the academic institutions remain an important player in this endeavour.

As the Cabinet statement of 23 November 2011 read, not only did Cabinet consider and approve the assessment of the impact of the decisions of the Constitutional Court, but considered a package of measures geared to fundamentally reform the administration of justice. Therefore the assessment should not be seen in isolation but as part of a holistic approach to the transformation of the judicial system in line with the values of the Constitution. These recommendations, including, the assessment of the decisions of the Constitutional Court, are with a view to developing clear and concise recommendations that are necessary to unlock challenges that have the potential to undermine the transformation goals that are intended to nourish our constitutional democracy. The approaches approved by Cabinet are:

  • Intensifying institutional reforms that are geared to enhance the capacity of the Constitutional Court to lead the evolution of our constitutional jurisprudence. The desired reforms to be informed by the assessment of the impact of the decisions of the Constitutional Court on social transformation.
  • Accelerating institutional reforms in the context of our developmental State; also including the optimum use of the Judicial Education Institute to facilitate the development of an appropriate judicial education curriculum that will enhance the skills, competencies and social context attributes of judicial officers.
  • Implementing appropriate measures, including legislative amendments, where necessary, to enhance the efficiency and the integrity of the Judicial Service Commission and the Magistrates Commission in the execution of their constitutional mandates of facilitating the transformation of racial, gender and other constitutional attributes in the Judiciary.
  • Establishing a framework for the monitoring of the evaluation of implementation of the court decisions by all state departments and to advance the respect for the rule of law.
  • Building a strong research capacity for the state by re-engineering the South African Law Reform Commission and the Rules Board for Courts of Law, to realise the full potential of the research capacity of the State. The programme to strengthen these institutions should include the revision of their legislative mandates in order to respond to the expanded mandate of government and to look at the broader socio economic context in the country. All branches of state should contribute to the agenda for change that will inform the programmes of these research institutions from time to time.
  • Facilitating the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to benefit society at large.

How will the assessment of the impact of the decisions of the Constitutional Court unfold
We seek to engage the services of research institution(s) to conduct the desired assessment. The identified institution(s), will be expected to -

  • undertake a comprehensive analysis of the impact of the decisions of the Constitutional Court, since the inception of the court, on the transformation of the state and society and how the socio-economic conditions and lives of people or a category of persons or individuals have been and or are affected by such decisions within the context of a transformative Constitution;
  • assess the impact of the decisions of the Constitutional Court, since the inception of the court, on all branches of the law of the Republic and the extent to which any such branch of the law has or should be transformed to give effect to the transformative goals envisaged by the Constitution;
  • assess the capacity of the Judiciary and that of the courts in building a South African jurisprudence that is in-line with the Constitution as the supreme law of the Republic.
  • assess the capacity of the State in all its spheres to implement measures that seek to give effect to the transformative laws of the Republic and the decisions of the courts.

The assessment is envisaged to be completed within 18 months from the date of commencement thereof. The outcome of the assessment and the accompanying recommendations, analysis, research papers and opinions, will form basis for –seminars and a national conference which will take place after the completion of the exercise.

I look forward to constructive views and commentary on the Document in our quest to transform the judicial system that all South Africans are yearning for.

Why so little trust in the judiciary?

In 2006, several years after the disastrous invasion of Iraq by the US military, a survey found that almost 50% of Americans believed that Iraq had weapons of mass destruction when the U.S. invaded that country. This belief was false as no weapons of mass destruction were ever found. In the same year Rick Santorum, who is running neck and neck with Mitt Romney in the nomination for the Republican Party’s Presidential candidate, also claimed that the US had found weapons of mass destruction in Iraq after its invasion of that country.

A poll of South Carolina voters conducted by Winthrop University last year showed that only 24 percent of Republicans and Republican-leaning independents in that state believed President Obama was “definitely” born in the United States. (Obama was born in Hawaii which became part of the US about 60 years ago.) Only one in three of those same voters correctly identified Obama’s religion as Christian. Nearly the same proportion, 29.5 percent, believed that Obama is “Muslim.”

It should therefore come as no surprise that South African’s views on the impartiality of the judiciary and its transformation are, at best, mixed. Like its US counterparts, large numbers of South African voters seem to be ignorant and superstitious. The survey, conducted by TNS, found that only 31% of respondents in metro areas of South Africa believed that the judiciary is impartial and unbiased while 31% felt exactly the opposite. A very large number of respondents – 38% of them, in fact – indicated that they did not know whether the judiciary was impartial and independent, suggesting a large amount of ignorance or at least uncertainty amongst South Africans about the judiciary.

It is perhaps also not surprising that 38% of respondents agreed with the statement that “judges were biased towards the government”, while only 27% disagreed. The “don’t know” response was again very high at 36%. Given the relentless attacks on the judiciary by some members of the ruling party (and, it must be said, given attacks by Helen Zille on the credibility of some judges) and given the fact that the government often loses cases before the courts because of criminally bad legal advice or even worse legal representation, and given the electoral dominance of the ANC, I am surprised that the number of people who believe the courts are biased against the government is not higher.

People who do not follow the finer technical legal points of judgments and never read court judgments – depending on the SABC or on The Voice for its information about the judiciary instead – would be forgiven for equating the many legal defeats of the ANC-led government (or the DA-led Provincial government in the Western Cape) with “bias” on the part of the judiciary. In the absence of reasoned analysis about why a law was declared invalid or why an act by the President, Premiers or cabinet ministers were declared invalid, and without a deep appreciation of the principle of constitutional supremacy, a ruling against any ANC or DA politician or ANC or DA-dominated body could easily be confused with “bias” on the part of judges.

I find it surprising that only 38% of respondents indicated that they believed the judiciary was biased. This means that many supporters of both the ANC and the DA who might be upset that “their” government has lost yet another case nevertheless believe that the judiciary is impartial and independent.

Unfortunately the survey did not distinguish between the Constitutional Court, High Courts and magistrates’ courts. Previous surveys were interesting in this regard as it indicated a much higher level of trust in the Constitutional Court – especially amongst black South Africans – than in other courts in South Africa. It is therefore unclear whether attacks on the Constitutional Court by members of President Zuma’s inner circle and by supporters of Judge President John Hlophe as well as the ugly spat about the appointment of a new seemingly under-qualified Chief Justice have not taken a toll on the credibility of the Constitutional Court.

I would guess that these attacks and controversies might well have taken its toll on the image of our highest court. This is because ordinary members of the public do not study the many pro-poor and pro-transformation judgments of the Constitutional Court and might be unaware of the fact that the Constitutional Court often rules against the powerful and in favour of the socially and economically marginalised. It also does not help that the SABC and other news media do not always report in sufficient depth about these rulings.

For example, a few months ago in the Blue Rout Trading case the Constitutional Court ruled in favour of inner-city residents of Johannesburg who were going to be left homeless after eviction by a private company. This made the City Council of Johannesburg very unhappy but was an unashamed pro-poor and pro-transformation judgment, suggesting that the anti-transformation impulses in this case emanated from the ANC-led Municipality and not from the Constitutional Court.

Interestingly, the issue of transformation yielded a 42% “don’t know” response with 34% of metro adults feeling that there has not been enough transformation in the judiciary and 24% feeling that there has. The question is of course what the respondents understood with the concept of transformation. Did they understand the term to mean a change in the racial (and – as an afterthought – the gender) composition of the judiciary or did they understand the term to mean the appointment of judges infused with progressive values enshrined in the Constitution?

If respondents understood transformation in its first meaning, then their perception was clearly mistaken. All leadership positions in the judiciary are now filled by black judges and only about 40% of judges remain white. Of course, in High Courts and on the Supreme Court of Appeal there are many judges (black and white, male and female) who are deeply conservative, pro-big business and anti-gender equality, so if one has a broader understanding of transformation the respondents to the survey who felt that there was insufficient transformation on the bench might well have a point.

Despite these explanations, it must be worrying that so many South Africans either have no opinion or believe that judges are not impartial and independent. This suggests that any attempts by politicians to interfere with the powers of the judiciary or to interfere with its work will be less unpopular than it should be in a functioning constitutional democracy. Judges have no army or police force and neither do they have the power of the purse. Judges are also not elected and do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

But without support from the broader public for an independent and impartial judiciary that is free from interference by the other branches of government or from big business interests (like the Oasis company), it is not clear that the judiciary in its present form will survive an onslaught by the tenderpreneurs and their political backers who see the judiciary as a threat to their kleptocratic interests. Both members of the judiciary (with the Chief Justice in the lead) and members of the media therefore need to reflect on how they can better inform the public about the way in which the judiciary operates and how it protects the rights and interests of ordinary citizens – including the social and economically marginalised members of society.