The increasingly desperate shape of our politics means the courts are moving into ever more fraught territory. Over the past decade, as Parliament has dithered over its oversight role in respect of executive action, litigants have approached the courts for relief that would not have been necessary if the legislature had exercised an oversight role without fear or favour.
The Black Sash application to the Constitutional Court to ensure the continued legality of social grant payments was a clear example of the courts stepping into the void created by the legislative and executive arms of the state.
Last week, the Western Cape high court became the centre of the debate about judicial reach and overreach. The Democratic Alliance dashed off to court for interim relief in the form of staying the swearing-in of the new Cabinet ministers appointed by President Jacob Zuma.
It appears that the argument sought to convince the court to grant the interim order pending the motion of no confidence that the DA wishes to introduce in the National Assembly.
Section 91 of the Constitution provides that the president appoints the deputy president and Cabinet ministers and may dismiss them. Whereas certain powers possessed by the president in terms of section 84 of the Constitution, such as the power to appoint a commission of inquiry and to pardon offenders, have been held to be subject to review on the ground of legality, it is doubtful whether the review power of legality applies to dismissal of a Cabinet minister.
This question did receive some attention in 1995 when Nelson Mandela, then the president, dismissed the deputy minister of arts and culture, Winnie Mandela. She applied to court for reinstatement on the basis that she had not received an official letter from the president and that he had failed to consult his coalition partners on the matter. Thabo Mbeki, acting president at that time, revoked the dismissal to spare the government the risk of uncertainty, which such litigation would trigger.
Yet the very political nature of the appointment of Cabinet ministers would seem to dictate that the usual rules relating to hearings before a dismissal in the labour context do not apply to these positions.
Wisely, the Western Cape high court dismissed the DA application, which, if news reports were accurate, it did for want of evidence on the papers. Of course, this was an urgent application and the merits of a possible review were not before the court. But, had the court gone the other way, it would have significantly encroached on political terrain, thereby placing the judiciary in the political firing line.
It may be that if bad faith or clear ulterior purpose were shown to exist as the basis of the presidential decision, that might trigger a justifiable challenge based upon the principle of legality, but were the president to say that he wanted to bring younger people into his Cabinet it would be difficult for a court to see through his justification.
There is an express solution. The Constitution, by way of section 102(2), provides that if 201 members of the National Assembly vote in favour of a motion of no confidence in the president, both he and the Cabinet must resign. A political question must have a political answer, and that is to be found in this section.
On the very same day the Western Cape high court held that provisions of the Drugs Act relating to the criminalisation of the private act of smoking cannabis were unconstitutional. It is interesting to compare this decision with that of the Supreme Court of Appeal (SCA) when the latter refused to develop the common law to sanction even passive euthanasia. The SCA judgment did emphasise that the facts of the Stransham-Ford case were not sufficient to make so bold a legal move as to develop the common law to make euthanasia a defence to a charge of murder, whereas the Western Cape high court, in its judgment on cannabis, held that the state had provided an insufficient evidential basis to justify the invasion of an individual’s right to privacy. But, the different quality of the evidence in the two cases aside, the SCA did state that controversial issues such as euthanasia were probably best left to Parliament. The high court seemed not to take heed of this caution about the limited role of courts in negotiating controversial social issues.
Was this a case of judicial overreach? Obviously a decision to strike down provisions of an Act of Parliament cannot be equated to a review of a decision of the president to change his Cabinet. But both cases prompt further debate about the limits of the judicial terrain, particularly in the context of a president who has been accused by no less than three of the six top leaders of his party of acting capriciously, and a Parliament that has proved to be tardy in responding to political, economic and social challenges. As the courts are drawn further into these difficult areas, the debate about overreach will continue apace.