‘Judicial overreach’ is back


On Monday, about 1 000 ANC supporters marched through the streets of Durban behind a banner bearing a rhetorical question: “Who runs SA, courts or executive.”

There was no question mark.

On a variety of media platforms, KwaZulu-Natal provincial ANC leaders rounded on the judiciary. Spokesperson Mdumiseni Ntuli spoke of a “growing appetite on the part of the judiciary to encroach” on the rest of government; ANC provincial secretary Super Zuma said there was a “clear undermining of democratic process” and a move towards courts running the country; and provincial Premier Willies Mchunu spoke of a perversion of the freedom that the ANC had fought for because of the courts turning against the government.

That has not been the party line. Just recently, the courts clearly intervened in the management of government matters, without any ANC protest. In March, the Constitutional Court in effect took on oversight of the South African Social Security Agency and decreed that the minister of social development must report directly to the court every three months.

The reaction? The ANC and its structures welcomed that decision.

Just about a year before that, the Constitutional Court spelled out how Parliament had failed to hold President Jacob Zuma to account on Nkandla and declared he should repay the nation.

The ANC praised the judgment for its balance.

Even during the face-off between the government and the judiciary in 2015 over the September high court order that the government was obliged to arrest Sudanese President Omar al-Bashir, there was no major protest.

And less than two months ago, at the end of March, the ANC’s national executive committee (NEC) laid the blame for a flurry of legal defeats for the party and its administration unequivocally at the feet its own MPs and the executive.

“The very fact that the courts are playing a more interventionist role in governance is reflective of our role in abdicating our governance responsibilities to the judiciary,” the NEC said. “Judicial overreach occurs in instances where the executive and the legislature fail to deal adequately with matters before them.”

All this was starkly at odds with the attack led by the ANC in KwaZulu-Natal this week. A high court order that Zuma must provide his reasons for firing Cabinet ministers was a step too far for them, and the Constitutional Court even hearing the dispute about a secret no-confidence ballot confirmed it.

By Wednesday, a 2015 recommendation by the ANC’s peace and stability commission that the party “should organise a people’s summit to engage on the challenges presented by judicial overreach” was being circulated on some floors of Luthuli House, the ANC’s headquarters.

Also revived was a call by South African Communist Party head Blade Nzimande from the same year for “open debate and reflection” on the separation of powers when it comes to judicial review.

“The tide is turning,” said a party insider from the camp opposed to Zuma. He predicted that, if such calls were not immediately acted on, at least they would be loudly debated.

The strange bedfellows of this week helped in the turnaround. On Monday, opposition leaders walked through the streets of Johannesburg together, at one photogenic point arm in arm, before squeezing into the Constitutional Court.

“We are here to tell the court that they must save us from this Zuma,” said a Democratic Alliance supporter outside the court while it was hearing an application to force or to allow the speaker of the National Assembly to decide that a vote of no confidence in Zuma be decided by secret ballot.

“This here is our weapon,” interrupted an Economic Freedom Fighters (EFF) member, pointing to the building. “We know how to use it.”

DA leader Mmusi Maimane later disclaimed that view, saying the party did not wish to influence the decision of the court. Inside the court, advocates for opposition parties and nongovernmental organisations argued that they in no way sought a breach of the separation of powers between the legislature and judiciary.

But supporters from the DA, the EFF, the Congress of the People and the United Democratic Movement provided a largely consistent view as they danced and sang together during breaks in the proceedings. The heroic courts, and the Constitutional Court in particular, are the only thing standing between a hapless public and a rapacious ANC, they explained. And their parties were acting as the public’s sidekicks, bringing cases of ANC malfeasance before the courts — for inevitable smiting.

For the KwaZulu-Natal ANC officials, this was proof enough that the courts and the opposition were inextricably intertwined. The message varied slightly from leader to leader and from forum to forum. Sometimes it was the judiciary that was being subverted by opposition parties (and even foreign governments), and sometimes it was the judiciary that was leading an anti-ANC charge. Either way, things had to change, the leaders all concurred.

Again, this is a far cry from the early days of the Zuma administration. In April 2010, a relatively new president spoke to the Black Management Forum about a range of issues confronting his administration.

“There is always a concern that the courts will encroach upon the domains of the legislature and the executive, and breach the doctrine of the separation of powers,” he said.

One concern was that findings by the courts on socioeconomic rights would affect budgets and force the government’s hand. But, Zuma argued, the same was true whenever “a court enforces civil and political rights such as equality, freedom of speech or the right to a fair trial”.

“We, therefore, take a view that we should not be rigid in our definition of the doctrine of the separation of powers. This would limit the ­potential intervention by the judiciary to protect socioeconomic rights.” 

Secret ballot order ‘not about encroachment’

The separation of powers issue loomed large for Chief Justice Mogoeng Mogoeng on Monday. In an apparent response to the ANC march in Durban, his office issued a short statement to reaffirm the judiciary’s “commitment to the principles of independence” as well as “the doctrine of separation of powers”.

Then, during legal argument stretching over nearly 10 hours, he returned again and again to the same territory in questioning different advocates before him: How far can the court go? Can it simply tell the speaker of Parliament what the law says she should do, and wait for her to act? Or should it order her, in detail, what to do?

“Does that not amount to overreach now?” Mogoeng demanded of Geoff Budlender, acting for the Council for the Advancement of the South African Constitution (Casac). “[If we say,] ‘We don’t think you can be trusted to do the right thing, we’re going to force you to do it’?”

The legal teams had a variety of comforting answers for Mogoeng.

The secret ballot case is an ordinary, everyday dispute about parliamentary rules, said Dali Mpofu, acting for the applicants, the United Democratic Movement, and “not about the separation of powers, nor is it about the so-called encroachment of the court into anything”.

Actually, no, the matter has everything to do with separation of powers, but in a good way, disagreed Anton Katz for the Inkatha Freedom Party. “The heart of this case is how is the National Assembly to oversee the executive by way of, for example, the motion of no confidence?”

The court was actually being asked to help to strengthen the separation between Parliament and president, he argued.

Nobody was trying to “obtain through the courts what they can’t obtain through the democratic process”, Budlender argued for Casac. “It is about enabling the democratic process to function in the manner envisaged by the Constitution.”

But there is a set of legal findings possible amid the complexities of the matter that could lead the Constitutional Court to tell Parliament that it has a theoretical discretion to decide for itself whether to use a secret ballot — but that the only lawful decision would be a secret ballot, Budlender also said.

“It is a notional discretion, not a real discretion,” he told a worried-looking Mogoeng.

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Phillip De Wet
Guest Author

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