We’ve got a president who makes things up, and won’t retract when he’s cornered. This week press secretary Sean Spicer followed the leader. He picked up Trump’s wiretap story and added a new exciting detail: Not only had Barack Obama bugged Trump Tower, he might have used British intelligence spies to do the dirty work. The British, of course, went nuts, and national security adviser H. R. McMaster tried to smooth things over. McMaster is new to the job, having succeeded Mike Flynn, who had to resign for lying about his phone conversations. Flynn was not even around long enough for us to find out that he was also a lobbyist for Turkish interests and took $68,000 from various Russian connections.
My ex-colleague, Sibonile Khoza, along with Sibonelo Ndlovu has published an interesting article in Business Day today analysing the decisions of Nicholson and Harms from a rather different perspective. They point out that while Nicholson appears to favour judicial activism, the SCA supports judicial restraint or minimalism and then ask the question: which of the two approaches is more consonant with the ethos and values espoused in our constitution?
In our view, notwithstanding the sound legal principles upon which the SCA’s decision was based, our constitution requires a responsive judiciary not hamstrung by the rigid rule of law that would prevent it from contributing to social transformation.
The SCA is correct in its observation of dangerous threads of judicial activism in the Nicholson judgment. However, the SCA seems also to have gone too far in its outright rejection of judicial activism as an adjudicative style necessary to bring about real social transformation.
We should take heed of the wisdom of Judge Albie Sachs, who in a 2002 Constitutional Court case said: “Undue judicial adventurism can be as damaging as excessive judicial timidity.”
Accordingly, what we need is a balancing act, something between the two approaches. This would be desirable in SA, which has great social inequalities, poverty and many other social evils created by apartheid. Even more so, this is desirable in the light of new evils taking hold since 1994.
The question is of course where to draw the line. It seems to me Nicholson went too far when he made findings about interference in the prosecution of Zuma without really having any proof before him to substantiate these charges. He also went too far when he made remarks about the advisability of Thabo Mbeki standing for a third term as ANC President and whether it was fair for Mbeki to fire Zuma.
But in other cases, judges might well be confronted with more clear cut evidence of an abuse of power of individuals and might have to do more than merely applying the law in a formalistic manner because that would be what the Constitution required in that case. Saying this might not be very popular with many judges, because it places a rather onerous responsibility on their shoulders.
That is one reason why traditionalists like Harms are so keen to maintain the fiction of a rigid distinction between law on the one hand and politics on the other: it provides judges with cover to make decisions they believe to be based only on law and not on morality or on other factors. But of course that line between law and politics is at very best a very smudged and difficult to see one and by choosing for a kind of formalism and for absolute judicial restraint one might well be choosing in favour of injustice and against the values of the Constitution.
Acknowledging this is not easy, but if judges are going to be the champoins of the marginalised and downtrodden – as they often are in countries like India – they will have to confront this difficult task of balancing judicial restraint against judicial activism. Ignoring the problem is also a moral choice – and not one that I would personally be able to live with.BACK TO TOP