ST110608(01) Justice Yvonne Mokgoro of the Constitutional Court addresses the delegates and media during a seminar on Human Rights and Immigration held at Constitution Hill.Picture:Bonile Bam

The fact that men and women can now stand equally before an independent and transformed judiciary, is a triumph of our democracy, writes Yvonne Mokgoro.


As a nation, we remain united as we reflect on the past two decades and prepare to commemorate our achievement of democracy and freedom from oppression.

Looking back to April 1994, the first phase of our achievement was the phenomenal general elections, which ushered in the second phase of a power-sharing government of national unity with a constitutional assembly constitutionally mandated to drive the creation of a new constitution, the basic law of our new democracy.

This marked the formal beginning of the democratisation of South Africa.

Though the transition in the 1990s concentrated on the constitutional aspects of our democracy, with a strong focus on the institutional, legal and political, the elections of 1994 served as a catalyst for far-ranging social change and an opportunity for South Africa to take its rightful place among nations of the world.

It is still a young democracy and significant challenges remain.

For example, based on the critical importance of the judiciary, the issue of judicial transformation is likely to remain challenging and at times controversial.

In all democratic societies in which the judiciary is independent and is empowered to review and pronounce upon the constitutionality of legislation and other laws, government conduct and policies, there would sometimes be an unnecessarily tense relationship between the judiciary and other branches of the state.

The past two decades have witnessed an impressive transformation of the judicial system in terms of increased diversity and constitutionally progressive decisions.

Undoubtedly, the judiciary remains jealous of its institutional independence and exercising its power to review legislation and test governmental conduct against the highest and the constitution, which is the highest law in the land.

There is appreciation that this trend must continue.

The separation and independence of the judiciary from the other branches of the state is important for public confidence, so critical for a strengthening and maturing democracy.

The independence of the Constitutional Court, as the highest court for the interpretation of our constitution, and its judges is a key building block of our constitutional democracy.

At the same time, while acknowledging the considerable socio-economic challenges that still exist in South Africa, judges must be sensitive to the overall transformation goals of the country, in particular the dire need for equality, poverty alleviation and the enhancement of dignity for people.

Although the role of speaking out on controversial issues of public policy is generally left to politicians and public commentators, judges have a powerful voice through their judgments to pronounce on key issues but on jurisprudential grounds, and on matters of legal principle.

The courts have a vital role to play in determining whether important public decisions and actions by the government relating to key service delivery areas such as education, health, water and food security are constitutionally reasonable, thus further capacitating the government to improve in those delivery areas where necessary.

The difficulty, however, is that courts may not do so without these matters placed before them in litigation.

The constitution may still be in its infancy, but it lays the foundation for an open society based on democratic values, social justice and fundamental human rights.

Around the world, our constitution is hailed as progressive, providing not simply a document of high democratic aspiration and idealism, but also a practicable, workable charter.

Over the past 20 years it has been significantly tested, and has proved itself modestly but practically effective as a basis for the democratic exercise of power.

There has been tension between civil society and the state, between provinces and central government, between dispossessed land claimants and urban tenants, on the one side, and landholders and property owners on the other – these have all been impressively adjudicated within the constitution’s framework of democratic values.

Another area of success for the constitution has been its effective separation of powers between the legislature, executive and judiciary, and the courts’ ability to hold the government strictly to account on its social delivery programmes.

A good example of this over the past two decades was the Constitutional Court’s decision, 13 years ago, in the Grootboom case.

On that occasion, the court declared government’s housing programme constitutionally invalid because it failed to make provision for the most desperately poor and vulnerable.

Although the government responded by saying it was doing all it could to build bricks-and-mortar houses for those in the housing queue, the Constitutional Court view was that that was not enough.

The result of the decision was a radical overhaul of the government’s entire housing programme.

As a result of the judicially enforceable promise of access to housing as set out in the constitution, subsequent action was taken, resulting in housing delivery becoming one of the government’s priority programmes and better success stories.

Another high-profile example of the courts’ ability to hold the government to account on its social delivery programmes over the past 20 years is related to HIV/Aids at a time when Aids denialism was an issue in government.

A court order to the government made antiretroviral (ARV) drugs available to pregnant women at public health clinics to prevent mother-to-baby transmission of HIV.

As a result of the constitution’s judicially enforceable promise of access to health, South Africa is reaping the benefits and now administers the biggest publicly provided ARV treatment programme anywhere in the world.

More than 2 million people living with HIV and Aids are now on life-saving treatment in our country.

Our constitution remains one of the most powerful forces of transformation in our country, underpinning our politics and national debates on the most important issues that affect all people in South Africa.

It thus requires a strongly independent, accountable, competent and efficient judiciary, capable of playing a pivotal role in sustaining our democracy and the rule of law.

After 20 years, our country still has a number of major challenges but there is also much we have achieved and can be proud of.

We have an active and engaged citizenry, a vibrant and engaged media, a functioning, independent judiciary and an effective and workable constitutional democracy.

All of this provides us with a strong framework on which we can build a better future for all our citizens.

As we consider events that are unfolding in our courts, we need to remember that the fact that men and women – of all races, irrespective of wealth, class or social standing – can now stand equally before an independent and transformed judiciary, placed in historical context, is a triumph of our democracy.

This must be celebrated.


* Mokgoro is a former judge of the Constitutional Court.

** The views expressed here are not necessarily those of Independent Newspapers.

Sunday Independent