According to a report in the media (Bongani Hans “ANC protests against the judiciary”, The Mercury) the ANC in KwaZulu-Natal has challenged Parliament to pass a law that will restrict the courts from interfering with the affairs of the legislature and President Jacob Zuma’s decisions.
In addition, the ANC has also called for Parliament to make it a punishable offence for political parties to abuse the courts.
This was the gravamen of a memorandum that Sihle Zikalala presented to a protest march of ANC supporters and pro-Zuma groups in Durban last week.
It was precipitated by the UDM Constitutional Court application to mandate Speaker Baleka Mbete to allow MPs to vote through a secret ballot on a proposed vote of no confidence in the National Assembly. Zikalala, in no uncertain terms, called on the court to reject the UDM’s case with costs.
In this regard he declared that “(t)he court should apply a law to protect itself from being abused by those who had been defeated during elections, and during debates in Parliament”.
Our constitution provides for a supreme constitution and an entrenched Bill of Rights. This gives rise to what is known as judicial review and the testing right of the courts. This means that the ultimate and final word on the interpretation and application of the constitution is vested in the judiciary and not the legislature. In such a system, Parliament cannot be sovereign and in effect there is judicial supremacy.
The theory and practice of judicial review has its genesis in the US where the Supreme Court, in interpreting the constitution, first assumed the power of declaring congressional legislation invalid in the epochal case of Marbury v Madison. Subsequently, this court assumed the authority to declare state legislation repugnant (to) the US constitution in the case of Fletcher v Peck. The establishment of judicial, as opposed to legislative, supremacy in the US has proved to be of profound jurisprudential and political significance in this country.
So for example, in 1896 the Supreme Court initially legalised racial segregation in Ferguson v Plessy. As a result of this judgment, the notorious doctrine of separate but equal acquired political and jurisprudential respectability for more than 50 years. In one of the most famous judgments of the 20th century the US Supreme Court in 1954 reversed its previous decision in Brown v Board of Education, holding that “separate facilities for separate races were inherently inferior”.
This latter judgment plunged the court into a maelstrom of political controversy and heralded the emergence of the historic civil rights movement in the US. Judicial review and the testing right of the courts are inherently problematic and controversial. This is epitomised in a later judgment of the US Supreme Court in Roe v Wade, relating to abortion, in which the court permitted termination of pregnancy in the first two trimesters.
The testing right of the courts gives rise to a dilemma, in terms of which the courts are able to invalidate legislation and executive conduct of a democratic legislature and of democratically elected officials. This by its very nature is highly contentious from a political point of view.
In our traumatic and tragic political and constitutional history, whenever the courts exercised such a testing right the counter-majoritarian dilemma became an issue, such as in Republics of the Orange Free State and the Transvaal in Cassim and Solomon v The State and Brown v Leyds, respectively. In the latter case, after Chief Justice Kotze had exercised the testing right, he was ingloriously dismissed by President Kruger, who declared that such a right was indeed “a principle invented by the devil”.
When, in 1950, the erstwhile Appellate Division of the SA Supreme Court exercised the testing right in the famous Coloured Voters cases, great political controversy occurred.
In the extant political and constitutional dispensation, Sihle Zikalala has not raised a new issue, since previously prominent politicians have before severely criticised certain judgments of the courts for exercising the testing right. This resulted in the convening of a meeting attended by senior members of the judiciary chaired by Chief Justice Mogoeng Mogoeng. At this meeting of the judges, the Chief Justice was mandated to arrange a meeting with President Zuma to discuss the tense relationship between the two branches of government. This occurred, but it did not stop criticism of the courts by politicians.
This inevitable tension in the relationship between the two branches of government must be understood against the background of our liberal democratic constitution, premised on the doctrine of separation of powers and the independence of the judiciary. South Africa has a constitutional democracy and not a pure majoritarian democracy that would be based on parliamentary sovereignty. In the latter, there are far fewer constraints on the exercise of power by the executive, having majority electoral support.
In a constitutional democracy, the executive is legally obliged to exercise its power in terms of the constraints imposed by the constitution and the provisions of the Bill of Rights.
The only way to change the situation is by amending the constitution and re-instituting the crude system of parliamentary sovereignty with its inherent dangers. This is very unlikely to occur and it is unthinkable that we could abandon our highly esteemed constitutional democracy obtained at such great cost and revert to such a patently defective system.
Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.