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The failure of our political systems is keeping the courts busy

Serjeant at the Bar

Last year ended with a flourish of judgments that tested the line between law and politics.

The Constitutional Court. (Madelene Cronje, M&G)

Of greatest significance was the defeat suffered by the Opposition to Urban Tolling Alliance in the North Gauteng High Court, in which an application to set aside the e-tolling system for highways in the Johannesburg area was dismissed. Although couched in procedural terms concerning the ambit of proper public consultation, the application went to the heart of government's ability to fashion policies for the funding of public infrastructure. The Constitutional Court may still have the final word on this.

Three similar cases followed in the Western Cape High Court. In the first, the Democratic Alliance (DA) applied for an order compelling the speaker of Parliament to hold a debate on a motion of no-confidence in President Jacob Zuma to be introduced by the DA on the last day of the 2012 sitting of Parliament. The ANC parliamentary majority was intent on protecting Zuma ahead of its national conference and thus sought to prevent the debate from taking place. The court upheld the DA's right to introduce such a motion and hence the right to have such a debate conducted in Parliament but refused to make an order that it must take place on a specific day.

The DA applied urgently to the Constitutional Court to hear an appeal against this decision, but the court was only prepared to hear the matter in March.

Any doubt that this case concerned a political dispute fought in the language of law was surely dispelled when DA parliamentary leader Lindiwe Mazibuko announced that the party was not going to take up the offer to debate the matter in February but would await the outcome of the Constitutional Court decision. Now that Zuma has won re-election as party leader, urgency is no longer a primary concern.

Next followed an application by Mosiuoa Lekota, leader of the Congress of the People (Cope), to set aside a decision to eject him from Parliament on the basis of remarks he had made about the president. The court, aware of the political nature of the dispute, appeared to adopt the view that the deputy speaker was entitled to interpret Lekota's remarks in a manner that justified the decision to expel him.

Irrational, undemocratic and unfair system
The final decision in this trilogy concerned the decision of the DA provincial minister of education, Donald Grant, to close more than 20 schools in the Western Cape. An application for an interim interdict to keep these schools open, pending a final review of the MEC's decision, was successful, although according to news reports the court was split two to one.

The judgment is still being awaited so it's difficult to divine the court's justification for the order. This may well be the most significant of all the judgments discussed here, because it seems the court found that there were legal reasons to trump the policy decision of the provincial education authority. This judgment, in turn, may indicate the courts' willingness to push back the separation-of-powers boundary rather more than was suggested by the Con­stitutional Court in its e-tolling decision, which set aside the initial interim interdict granted to the alliance.

Not to be outdone by Cope, the ANC also fought internal problems in the courts. While the ANC's national conference was in session, the Constitutional Court handed down the reasons why it declared invalid a meeting of the Free State provincial executive committee held in June 2012. The majority of the court found that there were irregularities in the process leading to the provincial conference and that these amounted to a violation of the applicants' right to participate in the activities of the ANC. This was sufficient to nullify the provincial conference. By contrast, a minority of the court refused to uphold the application, the premise for the refusal being a reluctance to involve the court in the internal affairs of a political party, where disputes could be settled in a more appropriate forum.

In summary, the fate of e-tolling considered by the alliance to be an irrational, undemocratic and unfair system of public funding, schools deemed by the educational authority to be so inadequate that they must be closed, the daily conduct of Parliament, and disputes between factions of a political party – all these required the attention of the courts. It appears that increasingly our politics are failing as a mechanism to resolve or settle complex disputes. It is thus extremely likely that 2013 will see increasing political activity in the courts, along the lines of last year's developments.

As this tendency gains pace, the courts will probably find themselves in the eye of more than one political storm, which may negatively affect the courts' legitimacy. Ironically, though, the case most likely to exacerbate this will be a more conventional application to review a public authority, in this case the 2009 decision of the national directorate of public prosecutions to drop charges against Zuma. Here, potentially, is a decision that could create massive political ructions for the country.

Whatever the outcome of this case when it is finally disposed of by the Constitutional Court, 2013 is likely to be an even more eventful year for the courts as the last line of democratic defence.

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