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Judicial review: A constitutional imperative or a corrosive separation of powers?
By Adv Wendy Andrew-Befeld
Bachelor of Laws (LLB); Bachelor of Arts (BA); Communications
This article explores the allegations of judicial overreach that have been levelled at the South African judiciary in recent years, by asking whether the judicial review that has taken place is the fulfilment of a constitutional imperative or a corrosive separation of powers in a young and vulnerable democracy?
In answering the question, the fundamental building blocks of constitutional democracy are unpacked including the rule of law, the counter-majoritarian dilemma, and the separation of powers doctrine. These are examined with specific reference to the complex South African context, in which much has been achieved to ensure the liberties of our people, while far less has been done to meet their pressing socio-economic needs, in spite of one of the world’s most advanced, progressive and directional Constitutions.
The role of the Judiciary in circumnavigating this complex landscape is examined with reference to various cases that have come before our courts and the country’s electoral system is identified as a key problem area. In the final analysis, the picture that emerges is one where the lines separating the powers have indeed been blurred.
However, where this has occurred, it has been the line between the Executive and the Legislature. In spite of any allegations to the contrary, it is the Judiciary that has, succeeded in “staying in its lane” (author’s expression). Moreover, the Judiciary has been pivotal in ensuring that South Africa has remained true to the guiding principles and values enshrined in our Constitution (RSA, 1996) and fundamental to a healthy, robust constitutional democracy in service of all of its people.
From a supreme Parliament to a supreme Constitution
Prior to the advent of constitutional democracy in South Africa, the judiciary was effectively crippled. Constrained by the Westminster system of Parliamentary sovereignty, the courts were bereft of any powers of judicial review and confined to interpret and enforce legislation based on procedural issues alone. They were precluded from considering substantive questions of legality, merit or morality. As such, they were reduced “to a mere spectator over the injustices perpetrated under the apartheid legal order” (Ngcobo, 2016:8).
In 1994, pursuant to multi-party negotiations aimed at ensuring a peaceful transition from oppression to democracy, “a deeply divided society” (RSA, 1993) formed a constitutionally democratic state founded on the values of human dignity, equality and freedom; the advancement of human rights; the rule of law; and the supremacy of the Constitution (RSA, 1996, hereafter referred to as “the Constitution”). The hallmarks of this new constitutional supremacy were a justiciable constitution entrenching the fundamental human rights of all South Africans in a Bill of Rights, and fully independent courts that would protect and uphold those rights.
So how has South Africa’s constitutional democracy fared in the years since then? What has become of the dreams and hopes voiced by South Africa’s first democratically elected President, the late, great Nelson Mandela - and shared by so many ordinary South Africans?
Protecting liberties but failing to provide necessities
There can be no question that we have come a long way since the days of apartheid, when many South Africans were deprived of the most basic human rights, such as dignity, liberty and even the right to life. But there is also an inescapable reality to be faced and it is this: more than twenty-seven years after liberation from the shackles of apartheid, too many South Africans continue to suffer a cruel socio-economic fate - with no discernible end in sight.
This is because although our justiciable constitution and our new independent judiciary has, by and large, succeeded in upholding and protecting our first generation, civil human rights, such as freedom and security of person, or freedom of speech, the state has fared much more poorly when it comes to dealing with our second generation, socio-economic human rights.
These include those enshrined in section 26 of the Constitution, which provides for universal access to adequate housing; section 27, which provides for right of access to health care services, emergency medical treatment and sufficient food, water and social services; and section 29, which provides everyone with a right to both basic and further education.
So, why has one of the world’s most advanced Constitutions (and Bill of Rights) which boasts a more expansive list of socio-economic rights than most others, imposes both negative and positive duties on the state in terms of access to and realisation of political and socioeconomic rights, and renders these socio-economic rights justiciable, rather than being merely directive, as is the case in most other Constitutions, nonetheless failed to adequately and properly fulfil its mandate as a transformative Constitution? How can it be that it has failed to meet the basic welfare needs of its most vulnerable citizens?
The answer to these questions is no idle speculation. It matters a great deal. Not only because it addresses pressing political and socio-economic concerns in South Africa, but because it has much broader significance for the continent as a whole. As Fombad (2013) points out: “no region of the world presently endures the severe disparities between people’s rights and their realisation that occurs in Africa.”
Furthermore, it is thought that a rights-based approach to social security is the best way to address disparities and as South Africa has one of the most constitutionally entrenched frameworks for protecting the right of access to social security on the continent, our Constitution has and will continue to be modelled (Fombad 2013).
As we transformed from a turbulent past characterized by human rights abuses to the advent of a new Constitutional democracy, we did so determined to avoid the injustices of the past.
Fundamental to our constitutional vision was a decisive break from the unchecked abuse of state power and resources virtually institutionalized by the apartheid regime. To achieve this, we adopted accountability, rule of law and supremacy of the Constitution as foundational values of our constitutional democracy.
Moreover, we have what is widely acknowledged to be one of the finest constitutions anywhere in the world – one that was carefully and thoughtfully crafted, pursuant to an extensive public engagement process. It sought to ensure a strong, independent, effective judiciary and a modern, comprehensive and inclusive Bill of Rights that could serve as a benchmark for human rights everywhere. It was designed to protect its people from the injustices of the past and to pave the way to a brighter, well deserved future. So how did we get here? And what can we do to course correct? To answer these questions, we need to unpack the basic building blocks of our democracy in order to see what has worked and what has not.
The essentials in the South African context
Rule of law defined
As a concept, the rule of law resists definition. “Like democracy, what precisely is meant by the term is deeply, perhaps essentially, contested” (Krygier, 2018:13). It has been defined in many different ways from a “sophisticated doctrine of constitutionalism, revealing law as the antithesis of arbitrariness” (Krygier, 2018:13), to the simple explanation that it requires government to act according to clear, general rules that are enforced via fair procedures in impartial courts.
However it is defined, it prohibits the arbitrary exercise of power and serves as a restraint on the exercise of authority. Furthermore, in a constitutional democracy where the constitution is supreme, the rule of law applies to ALL – including state institutions and organs of state, whose actions must be lawful.
It is also clear that the rule of law has both procedural and substantive attributes. The procedural component of the rule of law forbids arbitrary decision making. The substantive component requires that the state should respect an individual's basic rights. This is in accordance with the new constitutional scheme and is a radical departure from the previous apartheid regime, where legality was merely a procedural formality.
The apartheid regime propagated the narrow, legalistic version of the rule of law in order to advance their authoritarian, race-based agenda. They succeeded in doing so as a consequence of the parliamentary sovereignty that prevailed at the time, rendering the judiciary powerless to counter substantive injustice. However, with the advent of the new constitutional dispensation and a supreme Constitution that has entrenched the rule of law as a founding principle, the Constitutional Court has made good use of the principle in a number of cases that have come before it.
Soon after its inception, the Constitutional Court tackled the rule of law head on, in order to assess the constitutional validity of legislation. In Fedsure Life Assurance Ltd. and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1998, the Court held that it includes, at a minimum, the principle of legality which requires:
that all three branches of government act in accordance with the legal principles and rules that apply to them;
that laws be clearly formulated and evenly administered by independent courts; and
that self-help is inimical to a society based on the rule of law.
In Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others 2000, the Constitutional Court found against the state, confirming that in terms of the rule of law, the exercise of public power by the Executive and other functionaries may not be arbitrary.
Since those early days of democracy, the Judiciary has had many more opportunities to deepen, develop and further refine rule of law jurisprudence for the new South Africa, as case after case has come before the Constitutional Court, the Supreme Court of Appeal and the High Courts.
Brought by political parties, Chapter 9 institutions, NGO’s and others, they have dealt with everything from signal jamming at the State of the Nation (SONA) address (Primedia Broadcasting and Others v Speaker of the National Assembly and Others 2016); to the forcible removal of MP’s from Parliament (Democratic Alliance v Speaker of the National Assembly and Others 2016); to an unauthorised withdrawal from the Rome Statute of the International Criminal Court (Democratic Alliance v Minister of International Relations and Cooperation and Others 2017); to a bitter fight between government and the TAC over antiretrovirals, in what would be dubbed “the judgement that saved a million lives” (Honermann & Heywood, 2012).
The common thread running through all of these rule of law cases is that when all else fails, the Judiciary has not. More on that later.
In any event, as Constitutional Court Justice Madala (2003) observed, the rule of law “is not the enemy of liberty but its partner” and as such, it was enshrined as a foundational value in section 1 of the South African Constitution.
Section 1 of the Constitution states that: “South Africa is one sovereign, democratic state founded on certain values including the rule of law, accountability, responsiveness and openness”.
The inclusion of the rule of law in the values-based opening section of the Constitution (s1(d)) is no accident and given the country’s dark past, characterised by tyranny, oppression and a distinct LACK of the rule of law, it is unsurprising that the framers of the Constitution sought to entrench the rule of law as a founding value of the new constitutional democracy.
To ensure the enforcement of these values, section 2 of the Constitution (known as the supremacy clause), provides that the Constitution is the supreme law of the Republic; that any law or conduct inconsistent with it is invalid; and that the obligations imposed by it must be fulfilled. Section 8 of the Constitution provides that the Bill of Rights, which sets out all of our fundamental rights and freedoms, has supremacy over all forms of law and binds all branches of the state.
Section 165 ensures an independent Judiciary, whilst section 167(4)(e), gives the court the power to ensure that Parliament fulfils its constitutional obligations and section 172 of the Constitution then provides that a court MUST 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.
These critical Constitutional clauses, thoughtfully conceived and articulated by the framers of our Constitution, make it patently clear that the judiciary is not only permitted to enforce the rule of law, but it is their specific constitutional duty to do so.
Judicial review or judicial overreach?
Judicial review may be defined as: “the power of the courts…to declare invalid and strike down legislation…not in conformity with the requirements of the constitution” (Du Plessis, 2000:229).
Dennis Davis describes it negatively, as a process undertaken by unelected judges “empowered to overturn the will of a democratically elected and accountable legislature”. Therein lies a dilemma. How to justify censure of a democratic political system by an unaccountable institution? (Du Plessis, 2000: 230).
This dilemma is debated wherever constitutional supremacy has been adopted but, according to Du Plessis (2000:230), the consensus reached is that judicial review is an essential part of the democratic process, and that the disadvantages are outweighed by the advantages of having judges perform an independent check on government. The process does however create tension between the will of the majority and the judges’ power of judicial review and this is known as the counter-majoritarian dilemma.
The Counter-Majoritarian dilemma
In S v Makwanye and Another 1995 the Constitutional Court - in opposition to overwhelming public support for its retention - ruled that the death penalty was unconstitutional and accordingly, abolished it.
This case was a vivid demonstration of the type of tension that may arise when the will of the court is at odds with the will of the people but assertions “that democratic will is being overridden by unbounded judicial preference” (Dent, 2015:12) would be a step too far and notably counter to the current reality in South Africa. This is because, as Dent (2015:6) puts it, “the counter-majoritarian dilemma takes on a significantly different tone in the South African context”, which may be described as follows: Self-aware South African courts, particularly the Constitutional Court, balance pragmatism and principle in order to operate in a new democracy and further develop case law and common law in line with the fundamental values and principles of our Constitution.
Moreover, it has become clear in recent years that the state capture so roundly complained of includes an element of what may be termed “legislative capture”. As the apartheid judiciary was once expected to quietly tow the legislative line, now our democratically elected legislative branch is expected to tow the party line. The people of South Africa have grown increasingly frustrated and angry as they have watched parliamentarians repeatedly sidestep their constitutional obligations, in order to curry favour with their political party, rather than the electorate they are mandated to represent.
The reason for this is that our current electoral system is based on a closed list proportional representation (PR) system, whereby the electorate vote only for a party, rather than a person. The seats in the National Assembly and the provincial legislatures are then filled on the basis of this closed list, which cannot be altered by voters. At the end of the electoral process, these ranked lists are then used to fill the seats allocated to each respective party.
It is this exclusively closed list system that drives Parliamentarians to place their party before their people in order to ensure their own political survival. As British MP Lord Acton famously remarked in his letter penned to Anglican Bishop Mandell Creighton, on April 5th, 1887: “Power tends to corrupt, and absolute power corrupts absolutely” (Dalberg-Acton, 1887).
That is not to say that this is intended as an indictment of the ruling party per se – it is an indictment of a system poorly designed for self-interested human beings. It is a system likely to be abused by any political party and the end result is predictable.
In any event, the repeated, unsuccessful attempts to oust President Jacob Zuma via no-confidence votes in Parliament during the course of 2015 and 2016 constituted a turning point for many South Africans. They came to view the majority of the members of the Nation Assembly as nothing more than partisan representatives of their political party, rather than representatives of the people and they began instead, to view the courts as their champion.
This about face, where the Judiciary is increasingly viewed as the champion of a frustrated nation, and the best hope for the rule of law in South Africa, is particularly exemplified by the so-called Nkandla case (Economic Freedom Fighters v Speaker of the National Assembly: Democratic Alliance v Speaker of the National Assembly 2016) and a number of other cases, all of which render the counter-majoritarian dilemma in South Africa a rather distant concern at this point in the country’s political evolution. The Makwanyane case took place a long time ago, when the legislature had a clean slate and the judiciary had yet to prove itself. A lot has changed since then.
It is nonetheless regrettable that our courts are increasingly required to preside over matters, such as the Nkandla case that would never have come before them, had the other two branches of government acted in compliance with their constitutional mandates.
This has been a disquieting development in the context of already overcrowded court calendars and it is particularly unfortunate for the Constitutional Court, who, in a youthful democracy, has much to do in terms of interpreting legislation, and developing common and customary law, to “promote the spirit, purport and objects of the Bill of Rights” (RSA, 1996).
Furthermore, it has led to an increasingly embattled judiciary upholding the rule of law, enshrined as a bedrock value in our Constitution, often in the face of opposition from the other branches of government, who have regularly accused the Judiciary of judicial overreach and breaching the separation of powers.
The Separation of Powers Doctrine
Separation of powers is the most ancient and enduring element of constitutionalism and it is a central construct of the constitutional democracy that we now enjoy in South Africa, pursuant to the adoption of the Constitution of the Republic of South Africa in 1996.
The doctrine of the separation of powers is based on the assumption that power corrupts and separation of powers is essential to liberty and democracy. Charles Louis de Secondat, better known as the Baron de Montesquieu, was the first writer to give the principle paramount political importance in his seminal work on the subject, De l’Esprit des Loix (The Spirit of the Laws), originally published in 1748 (Montesquieu and Varnet, 1748). He continues to be considered the foremost authority on the subject to date.
Montesquieu's thinking was underpinned by the idea that man, although rational, is led by his desires into “immoderate acts”, and “that every man invested with power is apt to abuse it and carry his authority as far as it will go.” (Montesquieu, 1748). Accordingly, the end result of the concentration of too much power is tyranny and the suppression of liberty.
The Baron's prescription for preventing the abuse of power was that everything be done to ensure that power should check power. To guarantee the protection of liberty and freedom against tyranny and dictatorship, he therefore recommended the separation of powers. He strongly advocated both equality with and independence of the judiciary from the legislative and executive branches of government.
The principle of the separation of powers is entrenched in the Constitution of the Republic of South Africa. In terms of section 165 of the Constitution, judicial authority is vested in the courts, which are independent and subject only to the Constitution and to the law, which they must apply impartially and without fear, favour or prejudice.
The issue of judicial independence, as envisaged in section 165, is one of the main pillars of the doctrine of separation of powers. The judiciary serves as an important check on the other branches of government and should, therefore, be independent and beyond reproach. The Constitution furthermore established the Constitutional Court as the highest court in all constitutional matters and the final arbiter of decisions in the event of conflict of competence between the different spheres of government.
Notwithstanding the guarantee of judicial independence that is enshrined in our Constitution, the South African judiciary still faces serious challenges. In the first instance, the judiciary must continue to fulfil its constitutional mandate whilst taking care not to encroach into the domain of either the executive and/or the legislature and in a newly democratic hybrid system of government, such as ours, this balancing act is no easy feat, as the case law indicates.
In addition, the judiciary is subject to attack from many quarters, including the ruling party, who are increasingly challenged by both the citizenry of South Africa and the opposition political parties, all of whom look to the judiciary to ensure a fully functioning democracy based on the rule of law.
In the early days of our democracy, the court noted in De Lange v Smuts NO and Others (1998: para. 60), that there is no universal model of separation of powers and that it is not absolute. However, Ackermann J observed that:
Over time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa's history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances and, on the other hand, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest.
Unfortunately, there has been growing concern regarding separation of powers. Some commentators claim the courts’ expanded role in upholding the rule of law, in recent years, is a legitimate consequence of the other branches’ failure to fulfil their constitutional obligations.
On the other side of the ideological divide, there are those in the Executive and the Legislature who accuse the Bench of supporting opposition party politics and special interests in a new brand of “law-fare” (Ngcobo, 2016) and whilst healthy tensions between the branches are inevitable, “they must not be elevated to the level of a struggle for power because…rule of law will suffer and with it the administration of justice” (Madala, 2003:36).
Judicial review: a legitimate consequence of a case of "law-fare"?
According to Feliciano (1992:23), “judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of power among the three departments of government.'' Yet, it is also a limitation on the principle of the separation of powers in that by striking down laws or Acts of Parliament, the judiciary encroaches upon the functions of other branches of state authority, especially the function of the legislature. Therein lies the paradox of judicial review.
In a democratic state that adheres to the rule of law, it is a paradox that gives rise to a tension between the judiciary on one hand, and the legislature and the executive on the other. The tension arises because the judiciary is empowered to decide on the legality of the conduct of the other two branches of government but as pointed out by Maswanganyi (2010:14-15), “if the rule of law is to mean anything, the executive and legislature must accept judges peering over their shoulders.”
Not only is judicial review a routine part of a democratic society where constitutional supremacy is embraced, but section 172 (1)(a) of our Constitution specifically empowers the courts to act as guardian in respect of the protection and promotion of our constitutional values and principles against ALL who may violate them.
As to whether the Constitutional Court’s efforts to uphold the rule of law has thus far constituted judicial review, as opposed to judicial overreach, the fulfilment of a constitutional imperative rather than a corrosive breach of powers, one has only to look at the ever-increasing list of jurisprudence on the subject.
As it turns out, the Constitutional Court is to be commended for adopting a consistently careful, impartial and self- aware approach to the separation of powers and judicial review, and whilst it has made rulings that affect the executive and legislature, it has deferred to the other branches of government when appropriate to do so.
In Soobramoney v Minister of Health, KwaZulu-Natal 1998, for example, the court demonstrated early on that it was impartial; had no intrinsic bias in opposition to the Legislature or the Executive; and would rule in the favour of either, if the application of law and the facts supported such a decision.
In S v Dodo 2001, the court did just that when it held that although sentencing is a judicial function, a law prescribing a mandatory minimum sentence was not inconsistent with the separation of powers, as the legislature also has a responsibility in respect of sentencing.
However, in Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995, the court held that it was inconsistent with the doctrine of separation of powers for Parliament to delegate its power to amend the laws to the President as head of the Executive.
In Doctors for Life (2006), the court confirmed (in particular at paragraphs 37-38) that the constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings. In this case, the ruling was intended to serve as a caution to the courts that they too must observe the constitutional limits of their authority and should be careful not to interfere in the processes of other branches of government, unless to do so is mandated by the Constitution.
Conversely, in our constitutional democracy, the Constitution is the supreme law and it is therefore binding on all branches of government including Parliament. When it exercises its legislative authority, Parliament must act in accordance with the limits of the Constitution. Furthermore, Section 167(4) entrusts the Constitutional Court with the power to ensure that Parliament fulfils its constitutional obligations.
That brings us to the landmark case dealing with the Nkandla matter, brought before the Constitutional Court by the Economic Freedom Fighters and the Democratic Alliance against the National Assembly and Others in 2016, as a result of Parliament’s failure to hold then State President, Jacob Zuma, to account for refusing to comply with the remedial action prescribed by the Public Protector.
As history has recorded, instead of facilitating the enforcement of the remedial action prescribed by the Public Protector, the National Assembly (Parliament) had effectively absolved the President for failing to comply and in so doing, the National Assembly had breached its constitutional obligations in terms of s55(2) and 181(3) of the Constitution (Economic Freedom Fighters v Speaker of the National Assembly and Others 2016).
The rule of law and separation of powers were central to the Constitutional Court’s findings in this case and the Constitutional Court grappled with the issue of judicial review as never before. The apex court made it clear that it is the ultimate guardian of our supreme Constitution and its values; that the Constitution is binding on all branches of government; that the courts are constitutionally mandated to ensure all branches of government act in accordance with the law and fulfil their constitutional duties and obligations; and that remedial action is binding, not optional, because our constitutional order hinges on the rule of law.
As the Honourable Chief Justice stated in paragraph 1 of the Court’s judgment:
Certain values in the Constitution have been designated as foundational to our democracy…If these values are not observed…we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one and all should be driven by a moral obligation to ensure the continued survival of our democracy.
The court held further, that no constitutionally or statutorily based decision may be independently disregarded without first having recourse to a court of law. To do so is to take the law into your own hands and is tantamount to self-help, which is inimical to the rule of law.
However, as clear as the court was about constitutional supremacy and rule of law, it was equally careful to make itself clear vis a vis separation of powers, referring to the dictates of Constitutional Principle VI; appropriate checks and balances; and acknowledging that the Judiciary is just one of three branches of government and must be conscious of the vital limits on judicial authority and the Constitution's design to leave certain matters to other branches of government. This means that the judiciary should refrain from interfering in the processes of other branches of government, save for where such interference is mandated by the Constitution.
The Chief Justice was clear. Where the Constitution entrusts a matter to a political branch of government, making the manner of fulfilment discretionary, it is not for the Judiciary to prescribe to that branch of government how to fulfil that obligation. The court’s role is simply to determine that fulfilment has taken place.
The ruling in this case underscores the minority judgment in Glenister v President of the Republic of South Africa and Others 2011, wherein the Constitutional Court held that there are matters that, for good reason, are reserved for the political branches of government and judicial review merely ensures these branches undertake their constitutional obligations in accordance with the prescribed limits of their authority.
This careful approach and due regard for the separation of powers shown by the Constitutional Court in both the Nkandla and Glenister cases (and others) is a demonstration of the court’s commitment to judicial review – as opposed to judicial overreach – and its respect for separation of powers.
The good, the bad and the obvious
South Africa has demonstrated that a solid constitutional framework serves as the foundation for the protection of human rights but it is just that – a foundation – for there are other important factors to be considered. No matter how constitutionally entrenched human rights are in the Bill of Rights, whether these rights operate within a bona-fide democracy, a pseudo-democracy, a transitional democracy or a dictatorship will matter, as will the availability of the state’s economic resources, which are diminished and diverted by corruption and state capture.
Having reviewed the basic building blocks of our democracy, it does indeed become clear what has worked to further our constitutional dream, and what has not. There is certainly a lot that has been and is working. We learned lessons from our nation’s turbulent political past (and culture of human rights abuses); we learned from other States (and their Constitutions); and from the international human rights community. We took this collective wisdom and forged it into a truly outstanding Constitution, complete with an ambitious and contemporary Bill of Rights, aimed at achieving the promotion and protection of first, second and even third generation human rights. Our Constitution imposes both negative and positive duties on the State and it does so in a way that is justiciable and not merely directional.
Moreover, in the new constitutional dispensation, the rule of law is now legitimately exercised and where this is not the case, the judiciary is empowered by the supreme Constitution to deal with contraventions thereof. The Judiciary has in turn demonstrated that the separation of powers is alive and well and claims of judicial overreach are largely unsubstantiated.
It may therefore be said that in stark contrast to the apartheid era, the citizenry of South Africa now have an effective safeguard against the arbitrary, excessive or unjust exercise of government power.
Unfortunately, neither our revered Constitution, nor our carefully sewn tapestry of constitutional checks and balances, including a robust and independent court, has proved a match for human frailty and self-interest, aided and abetted by an electoral system that eschews accountability.
Accountability and the need for electoral reform
Generally, the post-apartheid electoral system in South Africa has been “characterised by simplicity, inclusiveness and a strong sense of fairness” (February, 2021).
Proportional representation coupled with an exclusively closed list system does, however, lack accountability, particularly in the context of one-party dominance and “it is on the key democratic value of accountability where the system remains weak” (February, 2021).
This deficit has weakened key institutions, enabled the emergence of a one-party dominant system and “the dominance of party executives” (February, 2021). It has facilitated rampant corruption, mismanagement and state capture, resulting in the diversion of money from social delivery programmes, intended to promote human rights and social welfare, into the hands of the powerful elite. The result is that the government has neglected to fulfil its constitutional responsibilities to the people of South Africa in terms of their socio-economic human rights.
Moreover, the negative effects of this go much deeper than the journalistic headlines and as Mantzaris (2017) has pointed out:
The tens of billions of Rands that are squandered in rampant corruption could be utilised to deliver basic, foundational guarantees such as adequate housing, food, healthcare and education.
A clear and evident solution to the slow and ineffectual delivery of socio-economic human rights is exhaustive electoral reform that renders representatives of the people accountable to the people they serve and not party elites and those in service of personal agendas. It is proposed as a means to “induce the correct balance between individual and party accountability” (February, 2021) and as such, to begin restoring greater accountability, and rule of law in the context of the one-party dominance that appears so solidly entrenched in South Africa.
This reform is critical. It is clear that the exclusively closed list proportional representation system (underpinned by the very lack of accountability that such a system tends to generate), coupled with a culture of corruption and state capture that has until recently characterised the political landscape in South Africa, has diluted the power of our formidable Bill of Rights. It has effectively handicapped its efficacy in terms of protecting and promoting the full range of human rights on behalf of all South Africans. Comprehensive reform would begin to reverse this process. It would serve to restore accountability and reduce corruption, thereby affording the ambitious Bill of Rights in the South African Constitution, a realistic and resourced framework within which to operate.
Whilst the difficulties our young democracy has encountered are complex and multi-faceted and it would be disingenuous to suggest that electoral reform is a simple fix – a panacea for all that ails us – it is advocated as a critical, foundational step in creating a more accountable, independent legislature, predisposed to fulfil their constitutional obligations to the electorate, thereby redistributing responsibility for the rule of law more evenly between all branches of government.
This would, in turn, reduce the burden on an already overburdened judiciary, and moreover, it would serve as an invaluable aid in combatting corruption and mismanagement, which deprives the electorate of essential resources.
So, how do we go about making this fundamental course correction that has such significant long-term implications for the governance and stability of our country?
Course correction: Will the recent Constitutional Court ruling pave the way for comprehensive reform?
On 11 June 2020, Justice Mbuyiseli Madlanga handed down a defining judgment in New Nation Movement NPC and Others v President of the Republic of South Africa and Others 2020, wherein the apex court ruled that the Electoral Act is unconstitutional on the grounds that it does not allow citizens to be elected to the national and provincial legislatures as independent candidates. Parliament was ordered to remedy the defect within 24 months and the media was jubilant – hailing the judgment as a game changer – a victory for all South Africans…but can it get us to where we need to go?
There is no question that the ruling is a step in the right direction. What remains to be seen is whether the changes Parliament makes will lead to the kind of comprehensive overhaul we so desperately need in order to ensure that our elected representatives are accountable to the people they are elected to serve, and that they remain so?
Analysts have pointed out that the closed list PR system that was originally designed to facilitate only our inaugural democratic election, has been in dire need of electoral reform for years. In fact, Cabinet commissioned an Electoral Task Team (ETT) as early as 2003 (ETT, 2003). They were asked to report on the matter and propose legislation for an electoral system in the years to come.
The ETT (also known as the Van Zyl Slabbert Commission) highlighted accountability as a concern and tendered its recommendations. Unfortunately, the proposed changes were never made. So where to from here?
With characteristic sensitivity in respect of separation of powers, The Constitutional Court did not pronounce on how Parliament should rectify the unconstitutionality of the Electoral Act, nor on a preferred model, expressly leaving this to Parliament to determine.
Home Affairs Minister, Aaron Motsoaledi, recently indicated that South Africa's electoral system is set for a major overhaul, and that the changes would not be limited to the Constitutional Court's directive regarding independent candidates (Business Day, 2021). The Minister’s announcement is a positive indicator that government may indeed action the course corrections advocated by the Van Zyl Slabbert Commission so long ago, and now so overdue.
The Independent Electoral Commission of South Africa (IEC) has however expressed concern about the 24-month time frame mandated by the court and this is indeed likely to be problematic given the potential scope of the work to be done and the necessary due processes to be followed in amending the electoral system (Business Day, 2021).
This concern has been echoed by a number of other organisations, including the Inclusive Society Institute (ISI) whose response to the judgment suggests effecting consequential improvements where possible, whilst implementing system changes to accommodate independent candidates. The hope is that broader reform will need to follow over time.
For the many South Africans leading lives that are a far cry from the hopes and dreams they nurtured at the birth of our democracy, change simply cannot come soon enough.
In the interim, South African’s must continue to rely on the judiciary to ensure that
the rule of law in our young democracy is upheld by ALL, including the State. And for as long as that continues, there will naturally be those who continue to pose questions about whether the separation of powers principle is alive and well and at work in South Africa?
The answer to that question, based on the evidence, is yes and no. If there exists any credible threat to the separation of powers, it lies in the blurring of the lines between the executive and the legislature. Where the judiciary is concerned, it is merely stepping into the breach, which it is constitutionally obliged to occupy.
As the Constitutional Court pointed out in the Nkandla case, the National Assembly (Parliament) is intended to embody the voice of all South Africans, especially the “poor, the voiceless and the least remembered”. The Constitutional Court referred to Parliament as the eyes and mouthpiece of the people, responsible for playing an oversight role with respect to the Executive and state organs alike, and for ensuring the execution of their constitutional and statutory obligations. Alas, as the Nkandla case (and others) have demonstrated, the legislative branch of our government is not always equal to that task.
Moreover, sometimes the problems that come before our courts have nothing to do with politics or the need for electoral reform. Sometimes, the courts are simply dealing with the unintentional consequences of poorly drafted or ill-considered legislation that falls afoul of the Constitution.
Certainly, it would be disingenuous to suggest that there is a silver bullet that is a cure for all of these difficulties. What is however certain is that when we look at what has worked and what has not, the blueprint for our success, becomes a little clearer.
That blueprint must, at a minimum, consist of electoral reform, redressing the paucity of accountability that has arisen in our system of political representation. It must also provide for improved legislative capabilities and performance, by ensuring that our law makers promulgate well researched, well drafted and constitutionally sound legislation. Ideally, that blueprint should also provide for further capacitating our courts and thereby enabling them to continue fulfilling their constitutional imperative, as we continue to reform and refine our young democracy…
…and while we wait for change to come, we can take comfort in the fact that we may rely on our courts to uphold the Constitution and as enjoined in section 165(2), to “apply the law impartially and without fear, favour or prejudice”.
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This article has been published by the Inclusive Society Institute
The Inclusive Society Institute (ISI) is an autonomous and independent institution that functions independently from any other entity. It is founded for the purpose of supporting and further deepening multi-party democracy. The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values. In South Africa, ISI’s ideological positioning is aligned with that of the current ruling party and others in broader society with similar ideals.
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