The Star Late Edition

SA courts have upheld their duty

- This article is an extract from an article prepared for the Inclusive Society Institute’s Journal for Inclusive Public Policy.

ALLEGATION­S of judicial overreach against South African courts are not new. The courts have long been accused of exceeding their mandate and straying into the realm of the legislativ­e and executive branches of the government, thereby breaching the separation of powers principle, crucial to the health and well-being of any sound democracy.

The separation of powers principle is based on the assumption that power corrupts and that a separation of powers between the executive, judicial and legislativ­e branches of the government, is therefore essential to the preservati­on of democracy.

It is the most ancient and enduring element of constituti­onalism and it is at the epicentre of our constituti­onal democracy, as is the rule of law and a strong, independen­t judiciary.

Our Constituti­on safeguards judicial independen­ce and provides that judicial authority is vested in the courts, which are independen­t and subject only to the Constituti­on and the law, which they must apply impartiall­y and without fear, favour or prejudice.

The courts are given the power to ensure that Parliament fulfils its constituti­onal obligation­s; and to declare any law or conduct that is inconsiste­nt with the Constituti­on invalid, to the extent of its inconsiste­ncy, thereby giving the courts the power of judicial review. While judicial review is essential for the enforcemen­t of the separation of powers, it gives rise to tension between the judiciary, on one hand, and the legislatur­e and the executive on the other.

Tension arises as the judiciary is empowered to decide on the legality of the conduct of the other two branches of the government – and nobody likes to be second-guessed, least of all those in positions of power. Then again, that is precisely the point of judicial review.

The judges peering over the shoulders of the executive and the legislatur­e are the means by which they are held to account and the rule of law is upheld.

Not only is judicial review a routine part of a constituti­onal democracy, but section 172 (1)(a) of our Constituti­on empowers the courts to act as guardian in respect of the protection and promotion of our constituti­onal values and principles. If history has shown us anything, it appears to be this very concept that the rule of law applies to all, without exception, that has caused so much consternat­ion.

As to whether the conduct of our courts in recent years has constitute­d judicial review or judicial overreach, it appears to depend, in large part, on who you ask and, often, the political space they occupy.

Many commentato­rs point out that it seems as though the courts have increasing­ly been called upon to regulate and check the exercise of power by the other branches of the government. This is because they have failed to act lawfully and fulfil their constituti­onal obligation­s thereby necessitat­ing the judicial interventi­on they then label as judicial interferen­ce or overreach.

The so-called Nkandla case, arising as a result of Parliament’s failure to hold then-president Jacob Zuma to account for refusing to comply with the remedial action prescribed by the public protector, is an excellent case in point. In this case, the Constituti­onal Court grappled with the issue of judicial review as never before.

Ultimately, the apex court held that our courts are the ultimate guardian of our supreme Constituti­on and its values; that the Constituti­on is binding on all branches of the government; and that the courts are constituti­onally mandated to ensure that all branches of the government act in accordance with the law and fulfil their constituti­onal duties and obligation­s.

On the other side of the ideologica­l divide, there are those who accuse the Bench of supporting opposition-party politics and special interests in a new brand of “law-fare”. The reality is that those levelling accusation­s of judicial overreach would do well to remember the not-so-distant past, before the advent of constituti­onal democracy in South Africa, when the judiciary was effectivel­y crippled by the Westminste­r system of Parliament­ary sovereignt­y.

Our courts were bereft of any powers of judicial review and were confined to interpret and enforce legislatio­n based on procedural issues alone. They were precluded from considerin­g substantiv­e questions of legality, merit or morality and, as such, were reduced to the role of powerless spectator, expected to rubber stamp the injustices they saw playing out before them.

Today, the rule of law is legitimate­ly exercised and where this is not the case, the judiciary is empowered and by the provisions of a supreme Constituti­on, to deal with contravent­ions. This, our courts have done.

Recently, the judiciary refused to blink when it came to holding Zuma to account for refusing to appear before the Zondo commission into state capture, and subsequent­ly threatenin­g to resist the custodial sentence handed down to him for contempt of court.

Despite the civil unrest that followed, the court’s refusal to back down is a victory for the rule of law. In the final analysis, the common thread running through all the rule of law cases is that when all else fails, the judiciary has not. This does not make them guilty of judicial overreach.

Rather, they are to be lauded for stepping into the breach and for doing exactly what they were intended to do, by constituti­onal design. May it be enough to keep our young democracy safe and on course.

 ?? WENDY ANDREW-BEFELD ?? Advocate of the High Court and member of the Cape Bar.
WENDY ANDREW-BEFELD Advocate of the High Court and member of the Cape Bar.

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