Will the Constitutional Court glance over its shoulder at the government when it decides the floor-crossing case? Some analysts believe it will.
”The last thing the judges wanted, so soon after the Treatment Action Campaign’s [TAC] challenge on nevirapine, was a high-profile case where they might have to cross the executive,” said one commentator.
Underscoring the government’s interest was the presence of Minister of Justice and Constitutional Development Penuell Maduna throughout last week’s hearings in Johannesburg.
Other spectators, such as Richard Calland of the Institute for Democracy in South Africa (Idasa), detected distinct signs of discomfort among the judges over the defection law.
Centrally preoccupying them was the question of whether there was ”a legitimate government purpose” to a measure that undermined proportional representation and the multiparty system, both enshrined in the Constitution.
The state has argued that government stability, particularly at municipal level, is jeopardised by the continued imprisonment of New National Party members in the Democratic Alliance.
But the judges, or certain key judges, seem to suspect that the real driver was a piece of grubby realpolitik arising from a party agenda: fragment the opposition and consolidate African National Congress power where the ballot box failed in 1999.
Will the judges strike down the legislation? One analyst sees in their close interrogation of almost every sentence of the state case a disposition to do so — tempered with circumspection. ”If they find against the state, they want the judgement to be constitutionally unassailable,” he said.
The likeliest outcome, most believe, is that the current legislation will be rejected, rather than the principle of floor-crossing, and that the legislators will be sent back to the drawing board.
There is nothing wrong in this. The University of Cape Town’s dean of law, Hugh Corder, points out that Canada postponed challenges based on certain far-reaching rights to ”bed them down”. The bouncing of legislation to allow Parliament to remedy defects served a similar purpose here.
Corder also emphasises that cross-party defections of some kind were anticipated during South Africa’s constitutional talks. Idasa has proposed floor-crossing with safeguards, including a provision that a new majority would automatically trigger an election.
But this does not mean broader considerations will not weigh on the judges’ minds. More than in the lower courts, they are aware of their relationship with other elements of the state.
Judges wrestle with ”judicial deference” — how far they should trespass on the government’s terrain — throughout the world. In South Africa there is an added dynamic — ”vanguardist” notions of the ruling party as history’s chosen agent of change, and impatience with constitutional brakes on its authority.
Apart from a formal concern with the separation of powers, the judges of the Constitutional Court must be aware of the dangers posed by over frequent head-ons with the government, not just for the court, but for the Constitution as a perceived vehicle of transformation.
This applies particularly in symbolically key cases, or where the prestige of leaders is at stake.
What is cheering for South Africans is that there is no hint of racial-political division within court circles, along Zimbabwean lines.
Indeed, commentators point out that in two recent cases — the Bel Porto school case and the Prince case, involving a marijuana-smoking lawyer — Judges Sandile Ngcobo, Yvonne Mokgoro, Tholakele Madala and former ANC operative Albie Sachs have taken a bolder, less executive-friendly line on rights issues than the majority.
A more fundamental divide is perceived between two white judges, Chief Justice Arthur Chaskalson, and Judge Johann Kriegler, with the former seen as a jurisprudential conservative who leans towards greater ”deference”, and the latter a flamboyant maverick more disposed to take on the executive.
Given Judge Chaskalson’s high intellect and pervasive influence on the court, one analyst suggests the state might even have beaten off the TAC’s nevirapine challenge had it argued a more strategic case.
The court has, at stages, been accused of favouring the government and the ruling party, but Corder sees no such pattern. ”It’s done an overwhelmingly good job, and managed to walk the tightrope it must walk to entrench itself in our public life. On occasions, the judges have upheld the government, but on others they’ve not been scared to knock it back.”
On floor-crossing, analysts believe the judges’ peripheral consciousness of their delicate position will manifest only in a narrower, more technical focus and an invitation to Parliament to redraft.
However, some analysts argue that less was riding on the TAC case than commonly supposed, because the government had already shifted tack on nevirapine. They add that the ANC may have mixed feelings on the floor-crossing law, born of discomfort with political opportunism, distaste for the NNP and a belief that the ruling party can make equivalent gains at the polls in two years’ time.
The government has a good record of respecting the court’s findings, but an underlying ”vanguardist” view that the executive is the authentic state, and the court a pesky imposition, has occasionally broken the surface.
Maduna once publicly attacked its work rate, while Minister of Health Manto Tshabalala-Msimang hinted she might defy the judges on nevirapine. President Thabo Mbeki appeared to pull both into line.
But the clearest outcropping of subliminal sentiment has been the open support shown by some ANC elements, and the government’s cryptic sympathy, for Zimbabwe’s lawless ”land reform” programme.
Zimbabwe, where 15 years of shaky constitutionalism broke down utterly when the ruling group started to come under threat, must bulk large in the minds of South Africa’s constitutional judges. It may be that their real test has yet to come.