Are current challenges to the legitimacy of South Africa’s judiciary themselves legitimate? This edited extract from Deputy Chief Justice Dikgang Moseneke’s lecture, “The burden of history: The legacy of the apartheid judiciary; the legitimacy of the present judiciary”, follows the contributions of Judge Dennis Davis and advocate Gilbert Marcus in last week’s M&G in a series aimed at promoting debate about the progress of South Africa’s constitutional democracy
Even now, questions are asked about the legitimacy of the judiciary. The starting point is to recognise that constitutional adjudication has a far-reaching impact on the manner in which the country should be governed in all spheres and at all levels. Judges are obliged to decide on disputes with and between organs of state, decisions on the validity of legislation, constitutional challenges related to elections and amendments to the Constitution.
All these matters have political implications in the sense that they relate to the conduct of politically elected or appointed executive or legislative functionaries.
It is thus self-evident that conflict between the judiciary and the executive or the legislature is inevitable. This contestation, one wants to believe, has been foreshadowed by the Constitution.
The Constitution seems to make an express election in resolving the inevitable political implications of judicial activity. It installs courts as independent and subject only to the Constitution and the law.
It is crucial to emphasise that courts are bound by the democratic will of the people as expressed in legislative instruments that are constitutionally compliant. Courts may not depart from valid legislation, executive decisions or policy in preference to their own worldview. They must apply the law impartially.
This, however, is not the end of the matter. Our model of separation of powers must strike an equilibrium between rigorous judicial review on the one hand and the historical need for effective executive government to pursue reconstruction and development of society.
The balance must be struck without relinquishing the rule-of-law requirement that all public power must be sourced from the law.
Our system of separation of powers must give due deference to the popular will as expressed legislatively or through executive decisions and policies provided that the laws, decisions and policies are consistent with constitutional dictates.
This observation is prompted in part by the counter-majoritarian dilemma. Judges are not elected democratically and yet the Constitution itself entrusts them with the authority to invalidate any law or conduct that is unconstitutional.
[—] Under apartheid oppression the judiciary had no legitimacy in the eyes of the disenfranchised majority. Matters are different now. However, questions have been raised on whether, in its rulings, the judiciary is being accepted as credible in the eyes of the public. Some have urged for a change of the “collective mindset” of the present judiciary.
[—] Courts are duty-bound to give full effect to the Constitution in order to transform society. However, if their judgements are substantially at odds with the dominant political and social views of society, they may lose the respectability they so sorely need to function well.
Lessons from the recent jurisprudential past suggest that there is no one correct answer here. I turn now to a few cases that highlight the inevitable tug of war, at the one level, between executive and judicial activity and, at another level, between judicial decisions and dominant political and social outlook.
I look first at decisions of the Constitutional Court which very well may be at odds with popular sentiment. In the death penalty case S v Makwayane, the court took a strident stance that when it interprets the Bill of Rights it will not resort to head-counting as a reliable means of substantive reasoning. In essence, the court took the view that when it protects individual rights it does so even against the clamour of public opinion.
We know now that the Makwayane decision was met with angry responses from the retentionist lobby, which frequently pointed to rises in the crime rate and alarming increases in atrocious crimes of violence.
Many have argued that the court has failed to reckon with the political character or implications of its judicial activity. And often the following statement by Judge Johann Kriegler is called into question: “The issue is not whether I favour the retention or the abolition of the death penalty [or] know whether this court, Parliament or even the overwhelming public opinion supports the one view or the other. The question is what the Constitution says about it.”
In a collection of decisions, the court has struck down a series of laws which discriminated unfairly against gays and lesbians.
In another decision, the court held that gays and lesbians had the right to enter into a union akin to marriage. There is no gainsaying the fact that gays and lesbians have faced the brunt of social prejudice in this country and elsewhere for centuries. The public mindset has not changed much.
However, the jurisprudential stance of the court is that fundamental rights are meant to provide a dyke against the sea of popular prejudice provided that the Constitution requires the court to do so. The solution may very well be to amend the Constitution rather than require courts to respond to popular conviction which, in a diverse society such as ours, may very well provide partisan and inaccurate diagnoses.
In the terrain of indigenous law, the court has on a good few occasions adapted its rules tainted by patriarchy in order to give effect to the gender equality and dignity dictates of the Constitution. Many steeped in the indigenous tradition would not consider the rule that adult male offspring are entitled to all inheritance and status within the family to be offensive. However, mere public clamour for retention of this patriarchal arrangement ought not to weigh heavier than the express dictates of the Constitution to obtain equal worth for all.
In conclusion, on this aspect, it must be emphasised that the court is not alien to but part of the democratic ethos that the Constitution puts in place. It must operate fully conscious of the dilemma that confronts it. It must give effect to the democratic will of the people as expressed in the Constitution and in other legislation. It must remain alive to the collective mindset of the people over which it presides. It must find the careful balance between the dictates of the Constitution and public opinion that may be properly regarded in resolving contested social claims.
On the other side of the scale, there are cases which Judge Dennis Davis and advocate Michelle Roux refer to as “lawfare”. The learned writers refer to a recent work by John and Jean Comaroff, for whom “lawfare” occurs when “politics — is played out more in the courts”.
The layman’s understanding is that this is political warfare that converts into legal warfare. In the past 24 months our society has had a fair share of political contestations that have played themselves out in our courts and in the Constitutional Court in particular.
There is no prize for guessing which cases I am referring to. You read about them every day or saw them on your television every other night. Our court was called upon to deliver judgements in matters of grave public, if not political, controversy.
We had to adjudicate on the fate of Mr Schabir Shaik; of Mr Billy Masetlha when his term as director general of intelligence was brought to an abrupt halt; on the bid of Mr Hugh Glennister to prevent the disbanding of the unit known popularly as the Scorpions; on the application of Mr Thabo Mbeki shortly after he had been recalled from his position as president; on a few interlocutory applications against the prosecution, brought by Mr Jacob Zuma, now our president; on the right of foreign-based South Africans to cast their vote in national elections; and on the coercive incorporation of communities into other provinces.
In the words of Davis and Le Roux, in all these cases the elephant in the courtroom was the public. “Lawfares” inevitably opened courts to potential political criticism because the law is engaged to pursue battles that belong properly in the hinterland of political contestation.
Lastly, in recent times the court had to mediate increasing conflict between the state and its citizens on matters that may loosely be described as service delivery.
We have had to make determinations on access to water, sewerage and electricity, education in the language of one’s choice; arbitrary eviction; and tenants’ access to electricity. In each of these cases, entrenched socioeconomic rights were invoked.
The court was well alive to the importance of allowing the executive a margin of appreciation in the execution of their constitutional duty, to diminish poverty and to facilitate a better life for all. However, where there had been blatant violation of socioeconomic rights in the issue, the claims of the citizens concerned have been upheld.
Deputy Chief Justice Dikgang Moseneke was speaking at the University of Cape Town Summer School’s series last week reflecting on 15 years of the Constitutional Court’s existence and the state of the country’s constitutional democracy. For his full lecture, click here