‘Given what seems to be unequal power, it is incumbent upon the courts to be not only guardians of the constitution, but also guardians of the limits of their own power and authority. Only when they act in that manner can they ensure the survival of our constitution by adhering to the constitutional separation of powers. Courts must not only respect the constitution, but they must be seen to do so,” said Ngoako Ramatlhodi, Deputy Minister of Correctional Services, writing in his personal capacity.
The above utterances were made in a discussion paper that seeks to throw more light on the doctrine of separation of powers by a writer who is living the doctrine – given his executive responsibilities, albeit he writes in his personal capacity.
How personal can it get? Ramatlhodi correctly states that all three spheres – namely the executive, Parliament and the judiciary – are bound by the constitution.
He then singles out only the judiciary for caution by further stating that “seen in this context, the judiciary while having the ultimate authority to interpret the law, should not act in a manner suggesting it is supreme to the constitution. It would be incorrect for the judiciary to invoke the constitution in order to ultimately undermine the very same constitution.”
This is a very serious assertion by Ramatlhodi and requires serious attention, because in it lies a seed that potentially fuels tension among the three organs of government instead of managing them, because the tension will always be there and is necessary.
A public discourse of this nature with this passion and fury can only add colour to our democracy.
I just love our democracy. It opens certain debates while shutting others with threats, name- calling and intimidation. I have just said what I did not intend to say.
There is clear unhappiness about the courts or rather about the “enormous” power exercised by the courts. This belief is supported by the assertion that “the enormity of the courts’ power derives from the fact that other spheres (executive and legislature) cannot interpret such content while the courts can”.
Aha, the not-so closely guarded secret is finally exposed by the following sentence. Another interesting development has been the subjection of administrative acts to the rationality test.
An unrestrained application of this test can lead the court to substitute its own rationality for the rationality of the designated body under the constitution.
Decisions such as those in the Glennister, Menzi Simelane and Mokotedi Mpshe cases have raised eyebrows in some quarters about the observance of judicial constraint by the judiciary.
Herein lies the real concern and source of unhappiness – political unhappiness that is. How dare these unelected, learned gentlemen and ladies of the judiciary frustrate the political aspirations of the elected representatives of the people! This concern is dressed in a separation of powers robe.
Before a constructive engagement, let me pause to momentarily reflect on legal basics. The doctrine of separation of powers is a theory varied by practice on application. There has never been a rigid compartmentalisation of the doctrine because the demands of governance make it impractical. In the South African context, members of the executive (except the president and ministers who are not MPs) are also members of Parliament.
There is often a much closer and warmer relationship between the executive and those MPs who are members of the ruling party, which at times can create an impression that Parliament is not as robust in its oversight role as it should be.
Perhaps an explanation could be found in the proportional representation electoral system or list system, which makes politically ambitious MPs not want to challenge certain party decisions, because to do so would be to commit political suicide.
In this regard, we need to recall section 42(3) of the constitution. This states: “The National Assembly is elected to represent the people and to ensure government by the people under the constitution. It does this by choosing the president, by providing a national forum for public consideration of issues, by passing legislation and by scrutinising and overseeing executive action”. This, to me, is one of the fundamentals that we need to ensure happens.
A robust parliamentary engagement that seeks to ensure “government by the people under the constitution” and which transcends party political whims would perhaps not have led to some judgments against the executive (Simelane) and the legislature and executive (Glennister).
The DA versus the acting national director of public prosecutions case falls under a different category because it is about judicial review of prosecutorial decisions.
The second point to reflect on is that judges are appointed by the president on the recommendations of the Judicial Services Commission. Without doubt, this body is politically heavy, with few judges and members of civil society.
Let us also remember that magistrates are also appointed by the minister of justice on the recommendation of the Magistrates Commission.
The minister can make an appointment that has not been recommended by the Magistrates Commission.
The executive does exercise “enormous power” on who sits as a judge or magistrate.
So where does the responsibility reside for an “untransformed” and “counter-revolutionary” judiciary 18 years down the line?
Let us honestly address this issue. The requirement of a broadly representative judiciary in terms of race, gender and disability is non-negotiable.
The current numbers on racial representivity is not that bad.
We must keep on improving when it comes to gender and disability. I also want to caution against a generally compliant and executive-minded judiciary that we used to have during the bad old days of apartheid.
All judicial officers are legally required before assuming duties to take an oath or affirm that they will uphold and protect the constitution. It therefore follows that those who are found to have acted in violation of this provision can be removed from office.
This seems to take care of the serious concerns of Ramatlhodi about delinquent or errant judicial officers (my words) when they act in a manner not “respecting” the constitution. Section 177 outlines a process for dealing with such judicial officers.
I hope this settles this notion that judicial officers seem to be a law unto themselves or are the untouchables and account to no one. They account to the law and the constitution and Parliament has a key role to play in that process.
We should not forget that at the centre of the doctrine of separation of powers is the protection of liberty and the facilitation of good government by appropriate specialisation and that the independence of the judiciary is essential in a democracy.
The segregation of these functions prevents overconcentration of power in one sphere of government and stops tyranny, arbitrary rule and other forms of undemocratic practices that detest criticism, accountability, responsiveness, transparency and so on.
The logical consequence of this arrangement is a limited government through constitutionalism and a system of checks and balances.
We as citizens have a right to demand just administrative action when public officials perform their public functions.
This is a constitutional promise clearly elaborated in the Promotion of Administrative Justice Act which has the requirements of legality and rationality. Whenever this promise is violated, the courts are our spear and our shield.
Talks of substituting one’s rationality with that of the courts requires further elucidation before engagement with that logic.
Courts are expected to interpret and apply the common law, the Promotion of Administrative Justice Act and the constitution and find areas of convergence or divergence within this interaction. That is the law and all organs of state and spheres of government must protect and promote the law and constitution.
As we engage in this public discourse, we need to be careful and not misdirect energy and intellectual capacity to areas not in dispute. No one can validly argue against an amendment of the constitution.
The constitution has already been amended more than 16 or 17 times. The constitution itself in section 74 as part of the national legislative process provides for such amendment.
The Constitutional Court still has to decide on the constitutionality of any amendment to the constitution.
There is nothing to fear because there is no matter that cannot be openly discussed, even if it might lead to the amendment of the constitution. Anyway, we all want a living and vibrant document and not a dodo as Lwando Xhaso, a former clerk of the Constitutional Court, always challenges us to do.
We the people are the ultimate custodians of the constitution.
n Pikoli is a member of the Council for the Advancement of the South African Constitution. He writes in his personal capacity.