Separation of powers: National Assembly speaker Baleke Mbete
There is no indication that the Constitutional Court has unduly attempted to influence or dictate government policy, according to a study that reviewed five years of the court’s judgments.
It comes amid growing scrutiny of judicial independence, and questions — particularly at government level — about whether the Constitutional Court has too much power. Ngoako Ramatlhodi, who has served as deputy minister of correctional services and a member of the ANC’s national executive committee and the Judicial Service Commission, for example, has said the judiciary is being used by government’s opponents to overturn policy and laws they do not agree with.
The study by the Democratic Governance and Rights Unit at the University of Cape Town (UCT) is titled “Has the South African Constitutional Court Overreached? A Study of the Court’s Application of the Separation of Powers Doctrine between 2009 and 2013”.
In a 2012 lecture, Ramatlhodi said a tyrannical “minority” was “using state institutions to undermine democratic processes”, adding that decisions made by an elected government couldn’t be subverted by “those who disagree with the ruling party politically … [but] cannot win with the popular vote during elections”.
There are a number of other arguments advanced in favour of “reviewing” the judiciary with a view to making it more compliant with the wishes of the executive.
The UCT study touches on the concern that significant judgments have contributed to the view that the courts are overstepping their role and are opposing government. (See “Constitutional Court’s balancing act”, Page 2).
The study, which is bound to pro- mote renewed debate in legal circles, found that the “cases surveyed do not reveal a pattern of the Constitutional Court failing to have proper regard to the principle of deference [respect for the rights and responsibilities of the other two arms of government — executive and legislative] and the doctrine of separation of powers”.
In fact there are some organisations and those in the legal fraternity that have accused the Constitutional Court of not going far enough to hold government to account in their judgments.
The team, lead by Chris Oxtoby, decided to limit their research to examining how the Constitutional Court applied the principles of deference and the separation of powers in its judgments.
The study’s conclusion points out that, when reviewing the court, it was important to keep in mind that judgments that might be seen as “intrusive into the domain of other branches of government, need to be assessed in the context of the [court’s] constitutional mandate”.
However, when it came to setting out remedies, the court tended to opt for referring matters back to government, state bodies and institutions, rather than stipulating how it wished the matter to be dealt with.
According to Oxtoby and his team, there are a number of cases in the review period, between 2009 and last year, where the court showed it was unwilling to make decisions that fell outside what it considered its man- date — namely on issues of extradition agreements such as President of South Africa and Others vs Quagliani, in which the court found in the government’s favour.
The case involved Nello Quagliani, who was accused of smuggling drugs to the United States, and married couple Stephen Mark van Rooyen and Laura Vanessa, who were accused of fraudulently operating a clinic that advertised and performed “stem cell transplants” on terminally ill patients in the US.
There was debate involving the legitimacy of the extradition agreement, but the court held that it was up to the president to deal with such matters — not a court of law.
The court also made it clear in rejecting the Opposition to Urban Tolling Alliance’s appeal against an earlier North Gauteng High Court ruling that threw out its bid to have the South African National Roads Agency interdicted from levying and collecting tolls from motorists for the use of Gauteng highways, that it was unwilling to intervene in what it saw as the exclusive domain of other branches of government.
But it did intervene in the case involving Ryan Albutt, an applicant being considered for pardon, and the Hugh Glenister and Menzi Simelane cases.
In the case of Glenister vs President of the Republic of South Africa and Others, the court imposed an obligation on the state to establish and maintain an independent body to combat corruption and organised crime. This was after Glenister argued in court that the national legislation, which created the Hawks (the directorate for priority crime investiga- tion) and disbanded the Scorpions, was not constitutionally valid.
The Hawks fell under the police minister, rather than the National Prosecuting Authority (NPA), which concerned Glenister because of the possibility of executive interference.
Ironically, in that case, although the court did rule largely against government, it said it was not within its mandate to oblige Parliament to locate a specialised corruption-fighting unit solely in the NPA.
With Simelane, the court found that his appointment as national director of public prosecutions was invalid.
The UCT report said whatever the merits of the court’s individual decisions, “it is difficult to see them as part of a broad ongoing trend, when considered in light of the counter- examples cited”.
The court does seem to have felt compelled to uphold certain constitutionally enshrined rights, the researchers said, and this is where it has taken some decisions that could be considered less deferential.
These include: protection of certain child rights in the Centre for Child Law vs the Department of Health and Social Development, and The Teddy Bear Clinic for Abused Children and Another vs Minister of Justice and Constitutional Development, and the right to equality in recovering damages to road accident victims in a case involving Anele Mvumvu, Louise Pedro and Bianca Smith.
It also allowed recovering damages for rape by a reservist policeman (F vs Minister of Safety and Security), and prevented the deportation of Emmanuel Tsebe and Jerry Ofense Pitsoe, who faced the death penalty if extradited to Botswana. It ruled to protect the separation of powers and the independence of the judiciary in Justice Alliance of South Africa and the Society for the Prevention of Cruelty to Animals vs President of the Republic of South Africa.
Here it ruled that a magistrate was not equipped to sign permits allowing the use of animals for entertainment.
This, it said, would be better handled by a committee comprising the department of agriculture and animal interest groups.
However, while the court has shown resolve in tackling rights violations, there appears to be a split in its approach about determining the appropriate remedy.
In the Nokotyane case, the court did not grant the relief sought by the applicants, but ordered the municipality to make a speedy decision to “ease the plight of the litigants”.
The people living in the Nokotyane informal settlement wanted the Ekurhuleni municipality to provide lighting and toilets. The court said that, while it was tempting to order the municipality to take action, the situation facing the settlement was not unique — considering 110 settlements faced a similar position.
In the road victim Mvumvu case, the court ruled that while there had been a violation of the Constitution, it was up to Parliament to provide the appropriate remedy.
Other examples where the court deferred to other branches of government include: A Party vs Minister of Home Affairs, regarding the right to vote. The court said the applicants should have approached the relevant government bodies before the court.
In Bru?mmer vs Minister for Social Development the court asked Parliament to remedy the law to allow an individual an adequate and fair opportunity to challenge a refusal to hand over documents in terms of the Promotion of Access to Information Act 2 of 2000.
Another example of a case where the court opted not to overstep what it considers to be its boundaries, leaving the matter to the executive and legislative branches of government, is the International Trade Administration Commission vs SCAW South Africa, which involved the expiry of anti-dumping legislation and a request for an interim order. The court expressly raised and dis- cussed the issue of deference, saying the matter dealt with international trade and therefore fell firmly into the responsibilities assigned to the executive. The court extended the concept of jurisdiction to nongovernmental bodies in Governing Body of Juma Musjid Primary School & Others vs Essay N.O. and Others, where the judgment allowed the school governing body to decide how best to review pregnancy policies — ruling against intervention by the relevant education MEC.
Contrary to a theory based on some earlier cases, the study found that the court was not more likely to defer in socioeconomic cases. Although the court found in government’s favour in some cases, there was a steady stream of cases where the court had not deferred.
This included the case involving residents of the Joe Slovo community, in which the court was criticised by some observers for not taking an even stronger stance. The court stipulated that no person may be moved unless alternative accommodation was provided to them.
In the case of Schubert Park Residents’ Association vs City of Tshwane, the residents were allowed to return to the area and the city was ordered to engage meaningfully with the residents.
Oxtoby points out that the variety of cases, particularly the socioeconomic ones, have presented challenges for the court, especially where provincial and national governments have come up against each other.
In Abahlali BaseMjondolo Movement SA vs the Premier of the Province of KwaZulu-Natal, relating to a law aimed at preventing the creation of slums, despite finding against government the court upheld that eviction decisions of this kind fell under national law rather than within the powers of the MEC.
It found that the power awarded to the MEC was “overbroad”, as it allowed for the issue of a notice that applied to any occupier of land, rather than just slums.
Government’s loss in the Tsebe deportation case was hardly surprising considering the strongly anti-death penalty posture the court had already adopted in two other cases in light of the country’s position on the death penalty, the study said.
The court has come under increasing pressure from certain sectors for overreaching its mandate but, conversely, it has also been commended for sufficiently holding government to account, when government has failed to rectify constitutional breaches timeously.
Debates among legal experts and lawyers themselves indicate that the issue of the separation of powers and the appropriate level of deference required by the courts, and the Constitutional Court in particular, is complex and nuanced.
The study makes the point that the public debate often focuses only on the complaints from government or the ANC that the court makes rulings on issues that should be left to other branches of government.
The court has been criticised on occassion for not debating the issue of the separation of powers sufficiently or giving more time to debate the issue, which would provide some agreement on how it should be approached.
Constitutional commentator Pierre van de Vos, while supporting the need for a debate on the separation of powers, points out that the Constitution requires the courts generally to develop common law or customary law, which “must promote the spirit, purport and objects of the Bill of Rights”.
He said, however, this has not filtered down to the lower courts because there are not many lawyers and judges who actually engage with this provision seriously. Therefore, there has been limited development of the common law and rulings upholding the Bill of Rights, leaving this to be dealt with at Constitutional Court level.
De Vos warned against reactionary statements from the likes of Ramatlhodi and ANC secretary general Gwede Mantashe that the judiciary destabilises the government and is used to undermine Parliament, saying these are not helpful.
The study concludes that “it does not seem, at least when looking at cases surveyed here, that it could be fairly said that the court has been systematically overreaching its institutional role, and usurping the democratic functions of other branches of government”.
The research said that, while some decisions arguably infringe on the separation of powers, there are numerous examples of decisions that the court has clearly deferred to the appropriate arm of government.
The full report was launched on October 2 at the Taj Hotel, Cape Town. Contact [email protected]
Constitutional Court’s balancing act
The selection of cases listed below to indicate that the Constitutional Court makes judgments on a case-by-case basis, referring (or not referring) matters back to govern- ment or the bodies concerned, depending on the issues at hand.
Bru?mmer vs Minister for Social Development and Others (2009)
Issue: Individuals were given only 30 days to challenge a refusal by government to hand over information applied for under section 78 (2) of the Promotion of Access to Information Act.
Judgment: Against government.
Reasons for not deferring: A person who seeks to challenge the refusal of access to information must be afforded an adequate and fair opportunity to do so. The 30-day period limited the right of access to court and was not reasonable and justifiable. The court ordered Parliament to enact legislation that prescribes a time limit that is consistent with the Constitution, bearing in mind the right of access to court as well as the right of access to information.
Mazibuko and Others vs City of Johannesburg and Others [2009]
Issue: The case concerned the right of access to water in section 27 of the Constitution. The case questioned the lawfulness of Operation Gcin’amanzi, an R880-million project to upgrade Soweto’s water infrastructure launched in 2003, which included among other plans, the intention of install metered supply system to all stands in Soweto, which residents objected to.
Judgment: For government.
Reasons for deferring: The court held that the obligation placed on government by section 27 is an obligation to take reasonable legislative and other measures to seek the progressive realisation of the right. In relation to the free basic water policy, the question, therefore, was whether it is was a reasonable policy. The court noted that it is implicit in the concept of progressive realisation that it will take time before everyone has access to sufficient water. The court concluded that it could not be said that it was unreasonable for the city not to have supplied more, particularly given that 80% of the households in the city would receive a certain amount of free water anyway.
Law Society of South Africa and Others vs Minister for Transport and Another (2010)
Issue: Various persons with actionable claims affected by an amendment to the Road Accident Fund Act mounted a constitutional challenge impugning two provisions of the amendment and a regulation made under the Act. They challenged a provision abolishing road accident victims’ residual common law right to claim losses that are not entitled to compensation under the Act; another provision limiting the amount of compensation that the fund was obliged to pay for claims of loss of income or a dependant’s loss of support arising from the bodily injury or death of a motor accident victim; and a regulation in which the minister of transport prescribed medical tariffs for health services to be provided to accident victims by public health establishments.
Judgment: Applicants only successful with claim for medical tariffs.
Reasons for deferring: The court ruled that the removal of the common law residual claim was justifiable and that a cap on compensation for the loss of income or of dependants’ was also acceptable.
Reasons for not deferring: The court found that the medical tariff for health services prescribed by the minister was irrational because it was incapable of achieving the pur- pose the minister sought: to enable road accident victims to obtain the health services they require. The court declared that the regulation was inconsistent with the Constitution, and ordered the minister to make a fresh determination.
The three cases above formed part of the selection of cases reviewed for study by the Democratic Governance and Rights Unit of the University of Cape Town