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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery at the Black Lawyers Association Student Chapter’s Constitutional Summit, held at UNISA, Florida, Johannesburg, 7 April 2018

The President of the BLASC
Members of the National Executive Committee
Ladies and gentlemen, comrades and friends

The doctrine of separation of powers, the independence of the judiciary and the supremacy of the Constitution lie at the heart of South Africa’s constitutional democracy.

As you know, the separation of powers is the act of vesting the legislative, executive, and judicial powers of government in separate bodies. It is a checks and balances system - needed to hold public power to account.   As former Chief Justice Pius Langa argued the objective of the separation of powers –

“is to secure the freedom of every citizen by seeking to avoid an excessive concentration of power, which can lead to abuse, in one person or body.” 

Before the dawn of democracy in South Africa the separation of powers was a farce. For example, judges were often appointed on the basis of political considerations. The judiciary was not truly independent and did not effectively curb abuses of power by the other branches of government.

It upheld blatantly discriminatory and unjust legislation and thus functioned as part of the apartheid legal order and contributed to legitimising and sustaining it.

It is noteworthy that the term “separation of powers” is not expressly used in our constitutional text.  The notion of institutional independence of the judiciary is related to the doctrine of separation of powers and refers to the duty of all institutions to respect that independence.

This means that the judiciary has to be independent of the other branches of government, namely the executive and the legislature, which, like all other State institutions, have a duty to respect and abide by judgments and decisions of the judiciary.

But what about the other two arms of the state? The executive must make policy, while the legislature makes the laws.

What happens in instances where the judiciary encroaches, or is perceived to be encroaching, into territories that belong to other two arms of government? This is what is referred to as “judicial overreach.”

The Constitutional Court has confirmed that the boundaries of the doctrine of separation of powers are flexible and undetermined, and shaped by each country’s realities.

Ultimately, as is the case in most aspects of constitutional adjudication, it is all about striking an appropriate balance. As former Deputy Chief Justice Dikgang Moseneke said:

“The tramlines of state power may be bright but not always certain and clear. Tension between branches of government is neither novel nor infrequent. Like all power struggles, they can be bitter and relentless… The judiciary makes rulings concerning other branches of government. But this does not mean that when judges do so, they automatically overstep their jurisdictional boundaries or are biased.

On the other side of the coin, courts must defer to the appropriate branch of government when they cannot properly decide a matter without invading their terrain. They may not usurp the role of other arms of state and may not compromise their impartiality….

Every decision we make is bound to be unpopular or uncomfortable to a losing litigant or a section of the community. As we judges often quip, every decision we make, sadly, leaves someone’s nose twisted and bleeding. Also, decisions of that ilk are not limited to disputes related to the exercise of state power. The all-important consideration is whether a court has acted within the four corners of the Constitution.”

In a constitutional democracy such as ours, and one as vibrant and dynamic as ours, tensions are normal. In the Black Sash case, regarding social grants, the Court held that -

“In a constitutional democracy like ours, it is inevitable that at times tension will arise between the different arms of government when a potential intrusion into the domain of another is at stake.  It is at times like these that courts tread cautiously to preserve the comity between the judicial branch of government and the other branches of government.”

All of us learnt as law students about the so-called “counter majoritarian” dilemma - where unelected judges use the power of judicial review to nullify the actions of elected public representatives in the executive or the legislature. These discussions are part and parcel of the constitutional law discourse and many legal arguments have been raised in respect thereof.

These arguments are particularly relevant in the area of socio-economic rights jurisprudence and issues relating to public policy. So it is by no means a new issue – it’s a normal feature of our constitutional discourse.

Courts must defer to the appropriate branch of government when they cannot properly decide a matter without invading their terrain. They may not usurp the role of other arms of state.

At the same time, it is important to stress that since the judiciary is the guardian of the Constitution the proverbial “constitutional buck” stops with them. The exercise of all public power is subject to constitutional control. In short, the policies which the executive makes and executes and the laws which are passed by the legislature ultimately have to pass constitutional muster – and only a court can do that.

With regards to Parliament as the legislature, the Constitutional Court has struck down several pieces of legislation over the past two decades, and made use of different remedies, either referring it back to Parliament to remedy the defect within a specific time period or by way of a “reading in” remedy.

But that does not mean that court has unfettered power either. A well-developed system of checks and balances forms part of the Constitution.  The purpose of checks and balances is to ensure that different branches  of  government  monitor each  other (checks) and  serve  as  counter  weights  to  the  power  possessed  by  the other branches (balances).

Simply  put,  the purpose of checks  and  balances  is  to  make  the  branches  of  government accountable. 

The most obvious example of a “check” is the power of the judiciary to review executive conduct and ordinary laws for the compliance with the Constitution and the Bill of Rights. It is a power exercised by the judiciary to ensure constitutional compliance and should not be to take over the power of another authority.

There are other examples of checks and balances too. For example, as Judge Majopelo writes:

“The executive also forms part of the Judicial Service Commission on the appointment of judges. The question is debatable as to whether these constitute infringement by executive into the exercise of judicial authority.”

The Minister of Justice – as a member of the Executive – appoints acting judges. And a judge can only be removed by way of a resolution supported by two-thirds of the members of the National Assembly, which is the Legislature.

So, how do we then strike a balance between judicial activism and judicial restraint? And is there anything wrong with judicial activism? There is no easy answer – and one that will differ from case to case.

There is no clear defining line – even judges themselves disagree from time to time as to areas of perceived judicial overreach. A good example is the recent case of the Economic Freedom Fighters v Speaker of the National Assembly - the so-called Zuma impeachment case – which dealt with whether the National Assembly had a mechanism to impeach former President Zuma.

Here the Court held that the failure by the National Assembly to make rules regulating the removal of the President constituted a violation of the Constitution and was therefore invalid.  The National Assembly was ordered to comply with section 237 of the Constitution and to make rules without delay.

In the EFF case the first judgment (dissenting) was written by Zondo DCJ who held that, in short, the National Assembly had deliberated on the issue and decided there was no basis to impeach the President was therefore that was the end of the matter.

Jafta J, on behalf of the majority, had a different view and held that there was an obligation on the National Assembly to make rules specifically tailored for an impeachment process. The National Assembly should therefore make such rules and then apply them.

And then there was the minority judgment of Mogeong CJ which said:

“This is a textbook case of judicial overreach – a constitutionally impermissible intrusion by the judiciary into the exclusive domain of Parliament. The extraordinary nature and gravity of this assertion demands that substance be provided to undergird it.”

In short, he argued that the court was going too far, by prescribing to Parliament how to conduct its business. He said:

“There exists no jurisdiction in the whole world, that I am aware of, where a court has decided for Parliament how to conduct its impeachment process. Respect for separation of powers explains why this is so.”

So, even judges themselves differ as to whether a particular judgment is or it isn’t a case of judicial over-reach.

Very closely linked to the issue of judicial over-reach, and also something which is very topical at the moment, is the issue of so-called “lawfare”. Are litigants too quick to run to the courts in the resolution of disputes?

Some may argue that we are “politicizing” our courts or are decisions involving rights adjudication, or involving organs of state not political by their very nature?

For example, is a court case involving the provision of, for example, housing, water, sanitation or education a straightforward human rights issue, or is it a political one – I would argue that it’s both. The right to access to a specific human right cannot exist in a vacuum, and the policy decisions that underlie the provision of that right, like e.g. the amount of the budget allocated to it, those are very often political decisions.

So, in short, it is natural that a court will, at times, have to enter the areas of responsibilities of the other arms of state. However, this must take place within the parameters of the Constitution. As the Court held in International Trade Administration Commission v SCAW South Africa (Pty) Limited:

“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference.

That would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”

So what is “lawfare”?  Former DCJ Moseneke describes it as follows:

“A trend not unlike civil protests is the contestation that occurs in the rarefied setting of a court room.  Litigation, in our country too, has become a preserve of those who wield public power and purse and those who can pay for it out of available resources. The ever bulging court roll at the Constitutional Court tends to be dominated by state litigants, followed by business enterprises and labour matters.

… Superior courts of our country are confronted by an avalanche of litigation from powerful interests in land. This phenomenon is known as lawfare.”

I think one can safely assume that the more “lawfare” we have, the more there is the potential of real or perceived judicial overreach. But that is also not to be viewed as cause for concern – but rather a sign of a dynamic and deepening democracy.

The valid question is therefore perhaps not whether the courts are encroaching on the functional terrains of the other arms of government, but rather whether there are not perhaps other, equally effective, ways of resolving disputes?  Should we need be focussing more on the issue of finding other ways to solve our political and policy differences?

There are no easy answers to these questions. But I do think that some important principles have crystalized in our democracy over the past two decades:

  • Firstly, judges must bear in mind that they are invested with great political power; they are permitted to override measures enacted by the legislature and the executive, measures that the legislature and executive regard as consonant with the Constitution.
  • Secondly, judicial discretion often competes with legislative discretion and executive discretion. It is thus obvious that tensions will occur and these tensions are normal.
  • Thirdly, the Constitutional Court, to its credit, has endorsed the principle of self-restraint on a number of occasions.
  • Fourthly, at the same time, government accepts and complies with the court’s judgments, particularly in respect of socio-economic rights, which is the area in which judicial activism mostly takes place. And we can cite many example of this:  the TAC case on the provision of anti-retrovirals; the Fourie case on same-sex marriages; and the Khosa case when Government was ordered to make social grants available to foreign nationals and so forth.

In closing, the governing party at its 54th National Conference noted that the issue of the doctrine of the separation of powers and independence of each arm of the state has been a “cause of strain” in the recent past.

It resolved that the doctrine of separation of powers of three arms should be clearly regulated by the development of rules of engagement without any arm of state undermining the constitutional authority of the other.

I believe that this points to a country with a healthy democracy, a democracy which is maturing and deepening, and a country which is committed to our constitutional ideals.

I thank you.