A Constitutional challenge to the Supplementary Budget I: A direct challenge within the context of the separation of powers
16 July 2020
On 24 June 2020, the Minister of Finance, Mr. Tito Mboweni, tabled the 2020 special adjustments budget (Supplementary Budget) in Parliament. The COVID-19 pandemic and the consequent economic downturn made it necessary for the Minister to table the Supplementary Budget – the purpose of which is to provide emergency relief during the crisis.
The Supplementary Budget has received fierce criticism from various sectors of society, including parts of civil society. In an articlepublished in the Daily Maverick, Neil Coleman, the co-director of the Institute for Economic Justice expressed the view that by “cutting back on resources available for delivery of basic rights to the population, the government is in violation of its constitutional obligations to progressively realise the socio-economic rights enshrined in the Constitution”. He suggested that the constitutionality of the Supplementary Budget “needs to be tested in court”.
This is the first brief in a series that will consider whether a direct constitutional challenge to the Supplementary Budget can succeed.
GOVERNMENT’S CONSTITUTIONAL OBLIGATIONS
Our Constitution enshrines socio-economic rights which seek to guarantee, among others, sufficient food and water, housing, health care and social assistance. The inclusion of justiciable socio-economic rights in our Constitution reflects our society’s commitment to ensuring that we live in conditions necessary for human dignity. South Africa has been lauded internationally for its constitutional entrenchment of justiciable socio-economic rights. However, in reality, the transformative promises of our constitutional rights remain largely unrealised.
The government has constitutional obligations to allocate resources to be used for the fulfilment of socio-economic rights. The budgetary allocations of the government must be subject to justification in light of our founding constitutional values of accountable, responsive and transparent governance. It is thus pertinent to question whether the government has sufficiently considered its constitutional obligations in the Supplementary Budget. This has been massively magnified by the high levels of inequality and poverty in South Africa, which have only been further entrenched by the COVID-19 pandemic.
AT WHAT STAGE CAN A LEGAL CHALLENGE BE BROUGHT?
Parliament has not yet passed the Bills that will give legal effect to the Supplementary Budget – the Adjustments Appropriation Bill and the Division of Revenue Amendment Bill. These Bills are currently being deliberated upon by Parliament. This raises the question of whether a challenge to the Supplementary Budget can be brought by individuals or civil society at this stage of the legislative process.
It is highly unlikely that a court would entertain a challenge to these Bills at this stage. The role of law-making lies with Parliament. Courts, accordingly, would ordinarily only intervene after the completion of the legislative process – once the Bills have been enacted into law. The reasons for this are obvious. Parliament may choose to amend the Bills or not to pass the Bills at all. Allowing challenges to Bills by members of the public has the potential to thwart and undermine the legislative process.
The Constitutional Court, however, has recognised that there are exceptional circumstances that would justify intervention before a Bill has been enacted. This is where the applicant would have no effective remedy available to them once the legislative process is complete and would suffer material and irreversible harm. However, the Constitutional Court cautioned that the test for intervention at this stage presents a “formidable burden”. Intervention in the legislative process will thus be “extremely rare”. In addition, it seems that only the Constitutional Court has jurisdiction to determine a constitutional challenge to a Bill brought by a member of the public. It would thus be far better to wait until the Bills have been enacted and to challenge the legislation giving effect to the Supplementary Budget.
THE PROSPECTS OF A DIRECT CHALLENGE
A direct constitutional challenge against a budget is unprecedented and it is yet to be seen whether our courts will entertain such a challenge. This is because a constitutional challenge to the legislation giving effect to the Supplementary Budget, once enacted, may require courts to encroach on areas of exclusive competences of the executive and of the legislature. Determining how to allocate resources and balancing the competing needs on our limited resources entails social and economic policy choices and falls squarely within the exclusive competences of the executive and of the legislature. These are the branches of government tasked with policy-making under our constitutional scheme. In addition, courts lack sufficient information and the technical expertise to determine these sorts of complex issues. The courts’ interference in budgetary matters, therefore, raises concerns about the separation of powers and the institutional competence of courts.
This does not mean that courts will not interfere with budgetary allocations and budget priorities at all. But they will likely be very circumspect in doing so. In the First Certification judgment, the Constitutional Court rejected an objection against justiciable socio-economic rights raised on separation of powers grounds. The Constitutional Court recognised that the enforcement of socio-economic rights by courts would have implications for budgetary matters. However, the Constitutional Court pointed out that this is not any different from the courts’ enforcement of civil and political rights, which may also have budgetary implications. The Constitutional Court accordingly held that the fact that socio-economic rights would inevitably give rise to budgetary implications was not a bar to their justiciability.
In Treatment Action Campaign II, the Constitutional Court made it clear that while its adjudication of the measures taken by the government to fulfil its socio-economic obligations may have budgetary implications, it is not “directed at rearranging budgets”. The Constitutional Court understood this distinction as being critical to achieving the appropriate constitutional balance between the judicial, legislative and executive functions. The Constitutional Court also recognised that courts are “not institutionally equipped to make the wide-ranging factual and political enquiries” necessary for determining how our resources should be used.
It has been questioned whether this distinction between ‘budgetary implications’ and ‘rearranging budgets’ is little more than a fiction. Nevertheless, this fiction may serve a useful purpose in that it allows courts to make orders enforcing socio-economic rights without being accused of judicial overreach.
While courts readily review the measures taken by the government to fulfil its socio-economic obligations and make remedial orders that have direct budgetary implications, courts are unlikely to interfere directly in government’s budgetary decision making. It thus appears to be unlikely that a court will entertain a direct constitutional challenge to the legislation enacted giving effect to the Supplementary Budget.
By Catherine Kruyer, Legal Researcher, HSF,
 The Minister of Finance’s 2020 Supplementary Budget Speech is available at https://www.gov.za/speeches/minister-tito-mboweni-2020-supplementary-budget-speech-24-jun-2020-0000.
Ibid at paras 43 and 46.
Ibid at paras 43 and 46.
Ibid at para 37.
 De Vos id.
Liebenberg “The Interpretation Socio-Economic Rights” in Woolman et al (Eds) Constitutional Law of South Africa OS 12-03 at 47; and De Vos and Freedman (Eds) ‘Socio-Economic Rights’ in South African Constitutional Law in Context (2014; Oxford University Press, Cape Town) at 720.