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A seminal debate is under way on the role of the courts in our constitutional democracy.
According to SACP general secretary, Blade Nzimande, SA is becoming a “judicial dictatorship”.
Similarly, Correctional Services Deputy Minister Ngoako Ramatlhodi has described the constitution as a shoddy compromise.
He said the liberation movements, in their enthusiasm to create an egalitarian society, surrendered crucial political powers, allowing the apartheid regime to migrate those to other arenas, including the judiciary.
ANC secretary-general Gwede Mantashe has expressed profound concern about the ability of an unelected judiciary to set aside the policy choices of an elected democratic government.
Speaking in Parliament recently at the farewell to former Chief Justice Ngcobo, President Jacob Zuma declared, “Our view is that the executive… has the sole discretion to decide policies for the government”.
This is patently incorrect. The judiciary does not have the power to devise policy, but rather to test whether it complies with the provisions of the constitution.
In sharp contrast with the above views are the enlightened views of Joel Netshitenzhe, an ANC intellectual who defends the separation of powers and the independence of the judiciary as two long-held ANC principles.
In countries with rigid constitutions, the courts are involved in interpreting the provisions of their constitutions and invariably employ a testing right to invalidate legislation that conflicts with it, precipitating a counter-majoritarian dilemma.
Judicial review has proved controversial in SA’s tempestuous constitutional history. In the 1950s, the exercise of the testing right by the erstwhile Appellate Division of the Supreme Court of SA in relation to the entrenched provisions of the South Africa Act led to an unprecedented constitutional crisis over the removal of coloured voters from the common voters’ roll.
The battle royal between the Appellate Division of the Supreme Court and the Union Parliament lasted five years, and involved the questionable packing of the appellate division.
It is accepted that the judiciary must not usurp the function of the legislature as this would constitute a violation of the doctrine of separation of powers.
So the creative role of the judiciary in interpreting and applying the constitution and statutes must be exercised with circumspection, within clearly defined parameters.
However, in a democratic body politic, minorities, like individuals, require protection. Some of these may not be sufficiently powerful to make their influence felt in the institutions and forums of government.
It is up to the courts to ensure their rights, guaranteed in the constitution, are upheld in letter and spirit.
Constitutional democracy is patently more than mere majority rule. It is a complex phenomenon of political and legal morality, in which the majority, minorities and individuals have rights and obligations, which the courts must interpret, apply and protect.
In so doing, a constitutional democracy must give expression to the universal values embodied in the Bill of Rights and the constitution.
A majority cannot therefore trample on the guaranteed rights of minorities or the individual. The courts must interpret and apply the provisions of the constitution and cannot, in so doing, merely defer to whims and capricious wishes of a mere majority or cogent public opinion, particularly where the public may feel aggrieved on a contentious issue, such as the death penalty.
An important case involving the counter-majoritarian dilemma is that of the Constitutional Court ruling against the Mandela government’s legislation in the Western Cape case, relating to the demarcation of electoral boundaries.
Mandela responded to the court’s exercise of the testing right with characteristic statesmanship by not only accepting but praising the judgment.
As a result of the wise political leadership displayed in that case, we have avoided a constitutional crisis caused by judicial review and the counter-majoritarian dilemma since 1994.
Whether this persists remains to be seen. If the views of Nzimande and Ramatlhodi prevail, a constitutional crisis of the first order is bound to occur.
l Prof George E Devenish is a retired professor of public law and former DA councillor in eThekwini Municipality.