PRESIDENT ZUMA AND THE BALANCE BETWEEN THE EXECUTIVE AND THE JUDICIARY

The Centre for Constitutional Rights is deeply concerned about the comments that President Zuma made Tuesday in Parliament regarding the relative powers of the executive and the judiciary with regard to the formulation of policy. The President is reported to have said that he wished to "reiterate our view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formulation."

He added that, in his view, "the executive, as elected officials, has the sole discretion to decide policies for government. He warned against the encroachment of one arm of the state onto the terrain of another and insisted that "the executive must be allowed to conduct its administration and policy-making as freely as it possibly can." He added that "the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. We must not get the sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections."

President Zuma was repeating points that he had made on 11 July when he had dealt with the "need to distinguish the areas of responsibility between the judiciary and the elected branches of government, especially with regards to government policy formulation". On that occasion he had expressed the view that the judiciary could not "when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government."[It is important to note that he was not questioning the power of the courts to strike down "illegal" legislation - but only their role in dictating policy.]

The President was no doubt reacting to a number of high profile cases that the government has recently lost in the courts.

In Richter vs the Minister of Home Affairs, relating to the right of South Africans overseas to vote in the 2009 elections, the High Court ruled that certain elements of the Electoral Act were unconstitutional. It ordered the government to rectify the situation by "extending the right to special votes to all categories of citizens absent from the Republic of South Africa."  It also ordered the government "to ensure that all categories of citizens absent from the Republic of South Africa who are registered as voters will be entitled in terms of the Electoral Act to vote by means of special votes in the forthcoming general elections."

In Louwrens vs the President, 2010, regarding the failure of the government to adopt legislation to give effect to the language provisions in s.6 of the Constitution, the Pretoria High Court found that the government had failed to monitor the use of official languages through the adoption of legislative and other measures. The Court ordered the responsible minister to adopt the necessary legislation within two years of the judgment.

In Glenister vs the President, in March 2011, the Constitutional Court found that the legislation in terms of which the government had established the Directorate of Priority Crime Investigation was unconstitutional because it had failed to secure an adequate degree of independence for the unit. The Court gave Parliament 18 months to remedy the defect.

On 29 July 2011 the Constitutional Court, in a case brought by a number of civil society organisations against the President, thwarted President Zuma's wish to extend the term of Chief Justice Sandile Ngcobo.

One of the most significant judgments affecting the formulation and implementation of government policy was the Grootboom case in 2001. In a landmark judgment, the Constitutional Court ruled that the State was required "to devise and implement within its available resources a comprehensive and co -ordinated program progressively to realise the right of access to adequate housing." The government's programme would have to "provide relief for people who have no access to land, no roof over their heads and who are living in intolerable conditions or crisis situations". It further found that the State's housing programme in the Cape Metropolitan Council area did not meet the required standards.

The Government believes, no doubt, that all these judgments trespassed to a greater or less extent on its right to determine policy. The President is quite right that, in terms of S.85 (2) (c) he, together with the other members of the Cabinet, have the responsibility of exercising executive authority, including the development and implementation of national policy.

The President is also right that the Courts have no role in making or prescribing policy. They do, however, have a right and a duty to strike down any legislation or executive action that is not compliant with the Constitution. In so doing, they are not imposing their will on that of the people, but rather measuring the expression of the majority of parliament against the Constitution. The mandate received by the government from the majority of the electorate is clearly limited by the constraints placed on it by the Constitution. In terms of S.2, law or action inconsistent with the Constitution is invalid and the obligations imposed by the Constitution must be fulfilled.

However, the President is emphatically wrong when he states that "the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote." The Courts have an undoubted constitutional power to overrule the will of the majority - as interpreted by the government of the day - if it is inconsistent with the Constitution. Neither is insistence on constitutional compliance by minorities an attempt to "co-govern the country through the courts."  

The ability of citizens to claim their constitutional rights, and the power of the courts to enforce the constitution, are essential for the maintenance of the rule of law and for the preservation of our constitutional democracy.

The reason that the government has lost so many recent cases is not the fault of its opponents or of the courts - but is rather the direct consequence of its own failure to act constitutionally. Either the government's law advisers are not providing adequate advice on the constitutionality of policy initiatives - or the government is not following their advice.

Dave Steward is Executive Director of the FW de Klerk Foundation.

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