Trump bans Muslims and we claim that this is un-American, that we are not this. I don’t have to talk up “ancient” history to show that we are. I won’t bring up settler colonialism, genocide, and land theft, or harp on slavery, or internment camps for Japanese-Americans. I won’t refer to the Page Act banning those deemed “undesirable,” the Chinese Exclusion Act, the Asiatic Barred Zone Act, or the Emergency Quota Act. I don’t have to mention the hundreds of thousands of Mexicans deported in the nineteen-thirties… I won’t mention any of this, because this happened so long ago. We can always delude ourselves by saying that America was this but now we are better. Let me just say that in 2010 and 2011, state legislatures passed a hundred and sixty-four anti-immigration laws..
When cabinet spokesperson Jimmy Manyi announced in November last year that the cabinet had decided to have the decisions of the Constitutional Court assessed to determine how “decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”, I wrote that on its face, this statement could be viewed as a positive development.
I went on to questioned aspects of the statement which suggested that “appropriate mechanisms be developed to facilitate … regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals”. This criticism was recently echoed by Acting Deputy Chief Justice Zach Yacoob, who said in a speech delivered at UCT Constitution Week that he could not agree with any suggestion that the two political branches of government had to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it.
Because of statements like these about the need for debates and discussion between three branches of government, statements repeated in the discussion document released last month about the proposed review of the Constitutional Court, concerns were obviously raised about the proposed review of the Constitutional Court. Why assess the Constitutional Court when we all know that the reasons for the lack of economic transformation in South Africa are structural (a huge skills shortage and race-based inequality, amongst them) and political (the deployment of unqualified politically connected people to positions in the state sector)?
This anxiety was further exacerbated by previous irresponsible and uninformed statements made by ANC Secretary General Gwede Mantashe about the judiciary destabilising the government and being used to undermine Parliament as well as the more recent perplexing comment by President Zuma that government did not “want to review the Constitutional Court, we want to review its powers”.
Now the Department of Justice has finally announced the terms of reference for the review, and it is looking good for the judiciary. There are two big surprises in these terms of reference. First, the Supreme Court of Appeal (SCA) has now been included in the review along with the Constitutional Court. Of course, given the fact that the original announcement only spoke about assessing the judgments of the Constitutional Court, there will immediately be questions asked about the inclusion of the SCA in the review so shortly after that court had made an adverse finding (on technical issues) in a case that could affect the future political career of the President of the country. But such fears may be allayed by the actual terms of reference of the proposed assessment.
This brings me to the second big surprise of this announcement, namely the actual terms of reference of this proposed assessment. These terms of reference shy away from the controversial (some would say bizarre) proposals about the fundamental weakening of the separation of powers between the judiciary and the other branches of government in order to “facilitate debates” between the three branches of government to ensure they act towards a common goal. The previous two documents both contained talk of this, but the terms of reference avoid this altogether and focuses on many of the really important issues facing the development of our constitutional jurisprudence.
The assessment will be a mammoth (if not impossible) task to complete, and will require “a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal since the advent of democracy” to try and establish:
the extent to which such decisions have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution; to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity; assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution.
The last aspect of this part of the brief is particularly welcome. Section 39(2) of the Constitution states that when courts develop the common law or customary law, they “must promote the spirit, purport and objects of the Bill of Rights”. Because there are not many lawyers and judges whose expertise lies outside the Constitutional Law field who actually engage with this provision seriously, there has been limited development of the common law, despite this powerful tool provided to lawyers to help mould the common law into a more egalitarian and fairer system or rules that focus more directly on whether the application of common law rules lead to just outcomes in particular cases.
In an article published in 2010 in the South African Journal on Human Rights, Dennis Davis and Karl Klare surveyed judgments over the first 15 years of the new dispensation, and found that although some leading judgments demonstrated the capability of the courts to transform the common law and provided glimpses of a more egalitarian, inclusive, and caring legal infrastructure, the jurisprudence is not without its limitations.
The authors found that the chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of powers issues. The authors argued that while the inhibiting effect of mainstream legal culture was not entirely responsible for these difficulties, it is nevertheless true that concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.
It is also welcome to see that the review envisages a study of the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State and would aim to determine:
progress made and challenges encountered in the implementation of the decisions of these courts; legislation, policies and government programmes that have been put in place to give effect to these decisions; and capacity of the state within the available resources to realise the outcome envisaged by such court decisions.
This is indeed a huge and complex task, both in terms of the sheer volume of judgments that would have to be scrutinised but also because of the methodological challenges that will arise in deciding how progress by the State should be measured. How does one measure whether a particular decision about an unreasonable housing policy, say, was indeed implemented by the various departments (including provincial housing departments)? Would the study focus only on national government, or would it also focus on provincial government and local government (where most of the “delivery” happens and where most of the problems in implementing social and economic rights occur)? The terms of reference are unclear on this point.
Of course, one of the biggest problems in South Africa relating to the promotion and protection of the rights in the Bill of Rights is that most South Africans do not have access to courts. Poor people almost never get their cases heard by the Constitutional Court unless they can persuade an NGO’s (not a group of institutions much loved by the government) to take up a case on their behalf. Without NGO’s our jurisprudence would have been much impoverished – both in the field of social and economic rights jurisprudence and more general Rule of Law jurisprudence.
The review therefore requires that a study be conducted on direct access to the Constitutional Court through a comparative study of other jurisdictions, to identify factors that inhibit access to justice in relation to:
the costs of litigation; legislative frameworks, structures and processes that inhibit access; the right of access to the Constitutional Court by indigent and unrepresented persons; and whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.
The Constitutional Court discourages direct access to the highest court as such an approach will fail to ensure that the ordinary High Courts and the SCA deal with Constitutional Law cases and engage vigorously with Constitutional issues. It will also make it very difficult for the Constitutional Court to deal properly with cases that come before it. In the absence of a comprehensive programme to fund human rights litigation ordinary people will often not be able to get to the highest court. Of course, another option is to amalgamate the various Chapter 9 institutions dealing with human rights and to create a super Human Rights Commission that will take up cases on behalf of indigent people whose rights have been infringed by the state or private institutions. This was proposed by the Asmal Report, but the proposal has never been taken up by the government or by Parliament.
Judging from the terms of reference of the assessment of the Constitutional Court (and now the SCA), the government has retreated from its innitial far more problematic position about why the review was needed. Gone is the threatening tone and any mention of the assessment being needed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables”. Gone is any talk of the review being needed to promote “interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.
In short, as is often the case with the ANC-led government, there are obviously two competing views about the judiciary inside the government represented by the various statements about this assessment. The one faction is deeply hostile to the judiciary (after all, judges review and set aside unlawful and unconstitutional actions by the President and unconstitutional laws made by Parliament and judges also convict and send to prison those who have been proven to be corrupt). The other faction understands the importance of an independent judiciary that is eager and empowered to implement the many progressive aspects of the Constitution. The original cabinet statement seemed to be influenced by the first faction, while the latter faction seemed to have had a bigger hand in preparing the terms of reference.
If done well, it might well assist the government to provide better access to justice and to create the mechanism that would help it to better implement progressive court judgments.
It remains an open question whether any institution or a number of institutions will actually be able to complete this review in the 18 month period envisaged by the terms of reference. After all the SCA delivers over 250 judgments each year while the Constitutional Court hands down between 30 and 40 judgments a year. That means the reviewers will potentially have to consider more than 5000 judgments and will then have to ask how all the relevant judgements (selected from these 5000) have impacted on the state and to what extent the state has actually implemented the relevant judgments. Quite frankly, I am not sure this is practically possible at all.
All I can say is: I am glad it’s not a job I will have to do.BACK TO TOP