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A statement by Adv Micheal Masutha, Minister of Justice and Correctional Services on the occasion of the release of the Report on the Assessment of the Impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on Transformation of Society on 3 November 2017

Today we announce the release of the Report on the study of the assessment of the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on the transformation of society.  Exactly a week ago, on 27 October 2017, we celebrated the centenary birth of Oliver Reginald Tambo, one of the greatest stalwarts of the liberation struggle who led the African National Congress during the dark era of colonialism and apartheid. Like many other martyrs, he did no live to witness the dawn of democracy.  It was through his visionary leadership and hard work as well as the blood and sweat of many of his generation, some of whom paid the ultimate sacrifice that today we are able to enjoy the fruits of the hard-earned democracy.
The National Development Plan: Vision 2030 which South Africa adopted in 2012, provides a yardstick and a roadmap for the reconstruction of many facets of our ugly past and their replacement with new ones based on human rights and fundamental freedoms.  It reflects our concerted effort to transform the legal system based on the letter and spirit of the Constitution through which all arms of the State must work towards the renaissance of the legal system in its entirety.

By way of an analogy, the State machinery resembles a three legged pot, the legs being the three equal arms of the State.  The ingredients of the pot which is in the form of laws, policies and jurisprudence which are the produce of the labour of the three arms give life to the values of the Constitution.  It is the combination of the laws, policies and jurisprudence which underlie our collective commitment to creating an egalitarian society in which every person enjoy equal protection and benefit of the law.

It is in this context that Cabinet commissioned a study on the impact of the decisions of the Constitutional Court and the Supreme Court of Appeal on the transformation of society, as part of the broader discourse on the transformation of the judicial system and the role of the Judiciary in the developmental State.

The Discussion Document which was published by Minister Radebe in 2012 gives the reasoning behind the study. The following extract from the Discussion Document sets out the rationale behind the assessment succinctly as follows:
“We seek to engage the services of research institution(s) to conduct the desired assessment. The identified institution(s), will be expected to -

  1. undertake a comprehensive analysis of the impact of the decisions of the Constitutional Court, since the inception of the Court, on the transformation of the state and society and how the socio-economic conditions and lives of people or a category of persons or individuals have been or are affected by such decisions within the context of a transformative Constitution;
  2. assess the impact of the decisions of the Constitutional Court, since the inception of the Court, on all branches of the law of the Republic and the extent to which any such branch of the law has or should be reformed to give effect to the transformative goals envisaged by the Constitution;
  3. assess the capacity of the Judiciary and that of the courts in building a South African jurisprudence that is in-line with the Constitution as the supreme law of the Republic.
  4. assess the capacity of the State in all its spheres to implement measures that seek to give effect to the transformative laws of the Republic and the decisions of the courts.”

Although when the idea of the assessment was conceived, there were concerns raised from certain quarters. I am pleased to confirm that those were settled early on to enable this important work to get underway.

As it can be deduced from the Report, the assessment was not about reviewing the judgment of the courts, but to look at the consequence of the said judgments on the people and the State.

We are grateful to the Human Sciences Research Council (HSRC) and the University of Fort Hare (UFH) who were the successful bidders for this research. These two reputable institutions established a formidable team of researchers and the report we are publishing today is the end product of the extensive research undertaken over a period of approximately two years.  
Different research methodologies, which blended both theoretical and empirical research, were applied in this study involving several stakeholders including retired judges of the Constitutional Court and the Supreme Court of Appeal, State Attorneys, legal practitioners and State and Non State entities, litigants and beneficiaries.

The research team assessed 43 landmark cases by both the Constitutional Court and Supreme Court of Appeal covering a wide-range of socio-economic rights.

In a nutshell, the report alludes to some of the seminal court decisions which were handed down during what may be termed as the golden era of South Africa’s constitutional jurisprudence.  Included amongst these are the following: The Government of the Republic of South Africa and Others versus Grootboom;   The Treatment Action Campaign against The Minister of Health; The MEC for Education, Free State Province versus Welkom High School; and Harmony Primary High, and the MEC for Education in Gauteng Province and Others versus Governing Body of the Rivonia Primary School and Others.  These are part of the landmark judgments which have crystalised our human rights jurisprudence, particularly with regard to right of access to housing, health care and the right of access to education.

The report acknowledges that despite a number of landmark judgements confirming the State’s obligation to take reasonable measures to ensure the progressive realisation of socio-economic rights, the apex courts always adopted a constrained approach when adjudicating on disputes involving socio-economic rights.

The report also notes some of the challenges that have the potential to hinder the full realisation of the objectives of judgments. In particular:

  1. The challenges regarding the interface and overlap between the mandates of the three spheres of government with regard to socio-economic rights.   This is due to the interplay of the national, provincial and local spheres of government which have different  and sometimes overlapping  competencies in respect of services such as water, electricity, land rezoning, mining and mineral licencing etc.
  2. The three year Mid-Term Expenditure Framework used by Government which may render it difficult to allocate budget to realise additional projects which are necessitated by court judgments;
  3. The lack of clarity from the judgments as well as capacity constraints on the part public service to effectively implement court decisions;
  4. The need to strengthen accountability, oversight and monitoring mechanisms across all spheres of Government in order to ensure that there is progressive realisation of the socio-economic rights through programme design as well as effective and expedient implementation of court judgments.

This resonates with the ANC’ policy on radical economic transformation which it adopted at its 53rd Elective Conference in Mangaung.  It is also important to note that the ANC Government has made great strides towards the progressive realisation of socio-economic rights as envisaged in the Bill of Rights. For example 3, 9 million people access antiviral treatment through the public health system.  Out of 12 million learners in our public schooling system education system 9, 6 million are in no fee payment schools. In excess of 4 million people have had access to basic housing since 1994; and basic and 17 million people enjoy support from the State under social assistance programme.  These are but few examples of the important socio-economic measures undertaken by the State to honour its constitutional obligations.

As I conclude, let me allude to one of the profound findings emanating from the Report, being the need for a constitutional dialogue amongst the three Branches of State to address issues of how to improve the socio-economic conditions of all our people.  This sentiment was echoed in historic meeting between the National Executive and the Judiciary on the 27th of August 2015, which similarly expressed the need for a structured interface between the Branches of State to discuss matters, particularly pertaining to transformation.

Only limited copies of the Report are available and the full Constitutional Justice Report report can be accessed from the Department’s website at the following address: www.justice.gov.za.

I thank you.