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18 Nov 2011 00:00
At the heart of our constitutional order is what Etienne Mureinik famously referred to as “the culture of justification”. This is an inherently democratising culture, because those who exercise power have to justify it to those who are affected, in part through the mechanism of the courts.
But there is also a downside to the role of the courts.
When we first debated the inclusion of social and economic rights in the Constitution, some expressed concern that this would divert political energy and activism into the depoliticised context of the courts.
There is indeed a real danger in what has been described as the “judicialisation” of politics. One of the best-known dicta of Gary Bellow, a great radical lawyer, was that the worst thing a lawyer can do is to take an issue that could be won by political organisation and win it in the courts.
We have certainly seen an increasing judicialisation of our politics. Litigation on social and economic rights remains limited, but other political issues are increasingly finding their way to the courts. That seems to be the result of a number of factors.
First, it is a result of the perceived inaccessibility and lack of responsiveness of the political system and the institutions of formal democracy. When those processes and institutions do not work, people look elsewhere.
Second, it is encouraged and facilitated by the fact that the government sometimes seems to take poor advice on these matters, and to litigate the cases ineffectively, with the result that some rather doubtful challenges acquire a real prospect of success in the courts.
Third, the rate of success is surprisingly high for another reason. Judges live in the real world. They read newspapers, watch television, engage with the chattering classes, and notice what is happening around them. When other institutions of democracy fail to respond to matters such as corruption, the courts have a tendency to move to fill the vacuum. I think this is part of the animating spirit behind the judgments in cases such as Glenister and the Mail & Guardian‘s case against the previous public protector.
The challenge to all of us, inside and outside the legal arena, is how the courts can enhance democratic practice rather than be a mechanism for the depoliticisation of what are fundamentally political issues.
That is not an easy question. It has troubled progressive people in many places. I suspect it is one in which we South Africans may be able to take a lead, as we have on other politico-legal and constitutional questions. We need to open our eyes and minds to how courts have functioned in other societies (India and Columbia strike me as particularly interesting examples) and find ways of using the courts to open up and deepen our democracy.
So how can they do that? A very important insight was provided by the 2008 Olivia Road case. About 400 people lived in two buildings in the inner city of Johannesburg. The buildings were unsafe and unhealthy. The City of Johannesburg ordered the occupiers to vacate the buildings.
The occupiers did not dispute that the buildings were unhealthy and unsafe. They said, however, that the remedy was to address the poor conditions in the buildings, or to find them another place, within reasonable distance, that they could safely occupy. They said that if they were evicted to the outer fringes of the city they would no longer be able to sustain themselves. The city said it could not find them a place in the inner city.
The matter came before the Constitutional Court. After hearing extensive argument, the court made a decision that surprised many. Instead of deciding in favour of either party, it issued an order requiring the city and the occupiers to “engage with each other meaningfully, and as soon as it is possible for them to do so, in an effort to resolve the differences and difficulties aired in this application in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the rights and duties of the citizens concerned”.
The parties were required to file affidavits by a specified date, reporting on the results of the engagement. The court said account would be taken of these affidavits in the preparation of the judgment.
One could be forgiven for being sceptical about such an order. But the result was remarkable. The parties engaged with each other on these matters. The occupiers were fortunate to be well represented. Both sides knew they had to engage seriously, for two reasons. First, it had been clear at the hearing that neither side enjoyed a decisive advantage in the argument and the outcome was thus uncertain. Second, they knew the court was looking over their shoulder: their conduct in the engagement would be reported to the court.
The parties did reach an agreement. The buildings would be made safer and more habitable on an interim basis. The city undertook to provide all occupiers with alternative accommodation in identified and well-located buildings. The agreement defined the nature and standard of the accommodation to be provided, and determined how rent would be calculated. It obliged all occupiers to move into alternative accommodation by a specified date. It stipulated that the alternative accommodation was provided “pending the provision of suitable housing solutions” being developed “in consultation” with the occupiers.
An apparently intractable dispute had been resolved. Each party had made concessions. The ultimate outcome was respectful of the rights of the occupiers.
How was this result arrived at? It seems to me the litigation and the court’s order for meaningful engagement fundamentally restructured the relationship between the occupiers and the city. Previously, the occupiers had been supplicants for largesse. All they could do was appeal to the goodwill and good intentions of the city. The relationship was fundamentally unequal, and the outcome was predictable.
The court order changed that. It reconfigured the existing power relationship in a manner consistent with our transformative Constitution: it recognised the occupiers as people who had rights, rather than as supplicants for largesse. That transformation of power relations made it possible to resolve the dispute in line with the Constitution.
Was that democratic? Was it consistent with the declaration that “the people shall govern”? It could be argued that the city council had been democratically elected, that (in the words of President Jacob Zuma earlier this month) they had “a mandate given by the people in a popular vote”, and that it was for them to decide what to do. On this reading, the court interfered with representative democracy.
The answer to any such complaint is given by former chief justice Sandile Ngcobo. One of the fundamental principles of our Constitution is that of participatory democracy, which “is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist”.
In other words, what the litigation and the order of the court did was to open up the process of participation in our democracy. People who were powerless became powerful, because they were the holders of rights and were treated accordingly. They became citizens, not subjects.
This is an edited extract from the 2011 Bram Fischer Memorial Lecture, given by Geoff Budlender, a founder and former director of the Legal Resources Centre and now senior counsel at the Cape Town bar. The full text of the lecture is available at lrc.org.za
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