8 June 2017
‘Injustice is relatively easy to bear; what stings is justice’[i]
This is the second of two briefs discussing recent comments on the judiciary. In the first brief, the concept of a “progressive judiciary” and the criteria for judicial appointment were examined. This brief will address allegations of “judicial overreach” and their implications for judicial independence.
There have been many allegations that the judiciary is straying into the realm of the executive. The government believe that the courts are being used in a ‘form of law-fare’ by institutions and political parties to resolve issues that fall within the political and policy sphere.[ii] Is the criticism justified or is it meant to distract South Africans from something else?
“Judicial overreach” occurs when a court acts beyond its jurisdiction and interferes in areas which fall within the executive and/or the legislature’s mandate.[iii] It means the court has violated the doctrine of separation of powers by taking on the functions such as law enforcement, policy making, and law making.
The government have alleged that there has been ‘judicial interference’ and ‘unfettered encroachment’ in matters falling within ‘the realm of the executive’ to please the opposition[iv] and that the ‘judiciary is playing into political space’.[v]
It is true that South African courts have frequently been faced with ‘challenges to the state’s unlawful and irrational decisions and policies’.[vi] But this alone does not mean there has been “judicial overreach”. The judiciary is the ultimate guardian of the Constitution, and it is the only state organ which has the authority to determine whether law, policy or conduct is consistent and lawful in terms of the Constitution.[vii] The Constitution requires the courts to determine the lawful limits and regulate the exercise of public power which includes governmental law, policy and conduct.[viii] In a constitutional system the ‘government must provide substantive justification for all its action’ to show its laws, policy choices, and conduct adheres to the Constitution.[ix] The Constitution and the rule of law also dictate that no body is above the law and every person and body, irrespective of their status, is bound by the law and the Constitution.[x] It is accepted that the doctrine of separation of powers and therefore the bounds of “judicial overreach” is not strictly defined, nor does it always have to be strictly applied.[xi]
So why then is the judiciary being accused of “judicial overreach”?
It is safe to assume no government would be happy being second-guessed or scolded. However, when the government repeatedly fails and violates its constitutional obligations and its ‘own processes and procedures’,[xiv] approaching the courts is the last hope that citizens have to vindicate their rights.[xv] Additionally, there is an alarming lack of accountability, and Parliament fails to hold those to liable through its oversight role.[xvi]
If both the executive and the legislature are failing to fulfil its functions it is no wonder the courts are approached to enforce these functions. Even the ANC have been unable to deny that the more interventionist role being played by the court ‘is reflective of our [the governments’] role in abdicating our governance responsibilities to the judiciary. Judicial overreach occurs in instances where the Executive and the Legislature fail to deal adequately with matters before them’.[xvii] Mr Themba Godi of the African People’s Convention (APC) succinctly said that government will complain about judicial overreach but it is these failures and incompetence that invite and allow the court ‘into the realm of the executive functions’.[xviii]
Given the observations, the cries of “judicial overreach” may thus be viewed as an attempt to distract the South African public from the failures of government. The courts are merely trying to do their best in a very difficult situation. It may not be ideal, but unfortunately it is the reality in which we live.[xix]
The implications for judicial independence
Judicial independence requires judges to be able to apply the law and ‘to exercise [their] constitutional powers impartially and fearlessy to all persons alike and at all times’.[xx] The core of judicial indepedence is a judge’s freedom to decide a case without any ‘interference from any person, be it other arms of governemnt, civil society or fellow judicial officers’.[xxi] In the South African context an independent judiciary is particularly crucial as it ‘is all that normal citizens have to protect them’[xxii] from a government which fails to comply with its constitutional obligations.
A fitting sentitment of the government’s attitude towards judicial independence is described by the phrase: ‘[m]en were singing the praises of Justice. “Not so loud,: said an angel; “if you wake her she will put you all to death.”’[xxiii] The government has regularly released statements confirming their commitment to judicial independence,[xxiv] but their actions and comments may very well betray other sentiments.
The government, or elements within it, does not only have a long history of openly criticising[xxv] the judiciary. Calling judges ‘counter-revolutionary’;[xxvi] implying that they act in favour of ‘some privileged sectors of society’ in order to run the country;[xxvii] and accusing the courts of aiming to ‘create choas for governance’[xxviii] is not helpful. Government’s actions may also amount to an underlying attack on judicial independence. It is deeply troubling when it refuses or fails to implement or adhere to court orders,[xxix] depsite openly declaring respect for the judgment of the courts.[xxx] Additionally, the judiciary has been undermined by the suggestion of legislative reforms to ‘ensure that necessary mechanisms are put in place to address instances of judicial overreach’.[xxxi] The KwaZulu Natal branch of the ANC has challenged Parliament to pass laws that ‘will restrict the courts from interfering in the affairs of the legislature and President Jacob Zuma’s decisions’.[xxxii] Finally,[xxxiii] there was a sense of an underlying threat against the independence of the judiciary when Minister Masutha, during his budget address, said that courts ‘should resist the temptation to interfere with the executive and legislative authority’,[xxxiv] which gives the impression their budget could be conditional upon deciding in government’s favour.
The above comments and actions by the government in effect delegitimise our courts.[xxxv] A threat against judicial independence is a threat against the rule of law, our democracy and our constitutional system as a whole.[xxxvi] This is particulary so when the threats emanate from other state organs and the ruling party itself.[xxxvii]
If the integrity of the judiciary is to be preserved it is important that the executive and the legislature start acting accountably and with transparency. If both branches of government adhere to its constitutional obligations there would be a decrease in the need for court adjudication.
If we continue down the path of allowing the judiciary to be undermined we may face a constitutional crisis. ‘If there is a constitutional crisis brewing it is not because the judiciary is doing judicial overreach, it is because the executive is not obeying the Constitution, it is not abiding by the decisions of the court’.[xxxviii]
Chelsea Ramsden, Legal Researcher, 8 June 2017, HSF
[i] H. L. Mencken (1880–1956), U.S. author. Prejudices, Ch. 3, Third Series (1922).
[ii] ANC “Strategy and Tactics of the African National Congress” 5thNational Policy Conference (8 March 2017) available at http://www.anc.org.za/sites/default/files/National%20Policy%20Conference%202017%20Stratey%20and%20Tactics.pdf, par 206.
[iii] R Suttner “The Question of ‘Judicial Overreach’” Polity ( 22 May 2017) available at http://www.polity.org.za/article/the-question-of-judicial-overreach-2017-05-22.
[iv] N Goba “ANC Lashes Out at Judge Who Wants Zuma to Explain Reshuffle” Times Live (5 May 2017) available at http://www.timeslive.co.za/politics/2017/05/05/ANC-lashes-out-at-judge-who-wants-Zuma-to-explain-reshuffle.
[v] N Mokjadji “’Judiciary Playing into Political Space’ – Mantashe Slams Ruling” Sowetan Live (10 May 2017) available at http://www.sowetanlive.co.za/news/2017/05/10/judiciary-playing-into-political-space---mantashe-slams-ruling.
[vi] TMG Digital “Country’s Judges the Last Line of Defence Against Government Abuse: Breytenbach” Times Live (20 April 2017) available at http://www.timeslive.co.za/politics/2016/04/20/Country’s-judges-the-last-line-of-defence-against-government-abuse-Breytenbach. See also W Gumede “Too Much Power in One Person’s Hands” Democracy Works (24 May 2015) available at http://democracyworks.org.za/too-much-power-in-one-persons-hands/.
[vii] Justice Zak Yacoob “The Judiciary is the Guardian of the Constitution” IOL (21 May 2017) available at http://www.iol.co.za/news/opinion/the-judiciary-is-the-guardian-of-the-constitution-9253661. See also Deputy Judge President Phineas M Mojapelo “The Doctrine of Separation of Powers (a South Africa Perspective)” Forum (April 2013) available at http://www.sabar.co.za/law-journals/2013/april/2013-april-vol026-no1-pp37-46.pdf, pg 38.
[viii] B Whittle “Profession Stands Behind Chief Justice and Judiciary in Raising Concern on Attacks on the Judiciary and the Rule of Law” De Rebus (23 July 2015) available at http://www.derebus.org.za/profession-stands-behind-chief-justice-judiciary-raising-concern-attacks-judiciary-rule-law/. See also S Sibeko “Are Judges in South Africa Under Threat or Do They Complain Too Much?” The Conversation (21 April 2015) available at http://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459; Justice Zak Yacoob (note vii above); Chief Justice Mogoeng Mogoeng “The Judiciary’s Commitment to the Rule of Law” (8 July 2015) available at http://www.judiciary.org.za/doc/Statement-Issued-By-The-Chief-Justice_8-July-2015.pdf; and “Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State” Department of Justice and Constitutional Development ( February 2012) available at http://www.gov.za/sites/www.gov.za/files/20120228-transf-jud.pdf, pg IV.
[ix] Section 27 “Submission on the Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State” (9 June 2012) available at http://section27.org.za/2012/06/section27-submission-on-the-discussion-document-on-the-transformation-of-the-judicial-system-and-the-role-of-the-judiciary-in-the-developmental-south-african-state/, par 50.
[x] B Whittle (note viii above). See also Discussion Document (note viii above); and Chief Justice Mogoeng Mogoeng (note viii above).
[xi] Justice Zak Yacoob (note vii above). See also Deputy Judge President Mojapelo (note vii above), pg 39; and Ex parte Chairperson of the Constitutional Assembly of the Republic of South Africa 1996 (4) SA 744 (CC) para 108-109.
[xii] Deputy Judge President Mojapelo (note vii above), pg 38 quoting Deputy Chief Justice Moseneke “Oliver Schreiner Memorial Lecture: Separation of Powers, Democratic Ethos and Judicial Function” 2008 SAJHR 341, pg 349. See also Chief Justice Mogoeng Mogoeng “Constitutionalism & Rule of Law: Brainstorming & Expanding the AU Doctrine on Unconstitutional Changes of Government & to Engage Stakeholders in Promoting & Implementing the African Charter on Democracy, Elections & Governance” (14 July 2014) available at http://www.judiciary.org.za/doc/Speech-The-AU-Dept-for-Political-Affairs-14-July-2014.pdf, pg 3.
[xiii] T Mokone “ANC Pushes for its Kind of Judges” Sunday Times (5 March 2017), pg 4. See also S Grootes “Analysis: Is Zuma/ANC Starting a Battle for the Soul of SA Judiciary” Daily Maverick (6 March 2017) available at https://www.dailymaverick.co.za/article/2017-03-06-analysis-is-zumaance-starting-a-battle-for-the-soul-of-sa-judiciary/#.WL0cnxhh3Vo.
[xiv] Q Hunter & S Shoba “Thabo Mbeki Says State Violates Legal Processes” Sunday Times (7 May 2017). See also Minister Michael Masutha “Office of the Chief Justice Budget Vote 2017/18 (17 May 2017) available at http://www.gov.za/speeches/minister-michael-masutha-office-chief-justice-budget-vote-201718-17-may-2017-0000; and R Suttner (note iii above).
[xv] TMG Digital (note vi above). See also Minister Michael Masutha ibid; Section 27 (note ix above); R Suttner (note iii above); and G Quintal “Abuse of the Courts or the Last Line of Defence?” Business Day (12 May 2017) available at https://www.businesslive.co.za/bd/opinion/2017-05-12-abuse-of-courts-or-the-last-line-of-defence/#.
[xvi] Section 27 (note ix above).
[xvii] G Mantashe “Statement of the African National Congress Following the Meeting of the National Executive Committee Meeting Held on from the 24th to the 26th March 2017” ANC (27 March 2017) available at http://www.anc.org.za/content/statement-african-national-congress-following-meeting-national-executive-committee-meeting.
[xviii] N T Godi during a Parliament's Standing Committee on Public Accounts meeting on 14 March 2017.
[xix] TMG Digital (note vi above).
[xx] Chief Justice Mogoeng Mogoeng (note xii above). See also the Constitution of the Republic of South Africa, 1996, Section 165; Deputy Judge President Mojapelo (note vii above); and S Sibeko (note viii above).
[xxi] Discussion Document (note viii above), par 3.3.8-3.3.9.
[xxii] TMG Digital (note vi above).
[xxiii] Ambrose Bierce, Epigrams, The Collected Works of Ambrose Bierce (1911), Volume 8, p. 372.
[xxiv] B Whittle (note viii above). See also Democratic Governance and Rights Unit “Judicial Selection in South Africa” University of Cape Town (October 2010) available at http://www.dgru.uct.ac.za/usr/dgru/downloads/Judicial%20SelectionOct2010.pdf; and G Nicolson “ANC NEC: We didn’t know about Gordhan” Daily Maverick (27 March 2017) available at https://www.dailymaverick.co.za/article/2017-03-27-anc-nec-we-didnt-know-about-gordhan/#.WS0s3saB21s.
[xxv] T Mokone (note xiii above). See also R Suttner (note iii above); and Sergeant at the Bar “South African Must Choose Between Accountability and Blind Trust” Mail & Guardian (17 July 2015) available at https://mg.co.za/article/2015-07-17-south-africa-must-choose-between-accountability-and-blind-trust.
[xxvi] Ibid. See also S Sibeko (note viii above).
[xxvii] G Makhafola “SA’s Judiciary Should be Transformed – ANC Policy Discussion Document” IOL (12 March 2017) available at http://www.iol.co.za/news/politics/sas-judiciary-should-be-transformed---anc-policy-discussion-document-8156280. See also ANC (note ii above).
[xxviii] S Grootes “When Judges of the Land Said Enough! To the ANC” Daily Maverick (8 July 2015) available at https://www.dailymaverick.co.za/article/2015-07-08-when-judges-of-the-land-said-enough-to-the-anc/#.WS0x4saB21t.
[xxix] B Cibane “Chief Justice Mogoeng and the ‘Unbelievable Resistance from the Executive’ to Judicial Independence” Daily Maverick (3 December 2014) available at https://www.dailymaverick.co.za/opinionista/2014-12-03-chief-justice-mogoeng-and-the-unbelievable-resistance-from-the-executive-to-judicial-independence/#.WS0y3saB1PM. See also SALC v The Minister of Justice and Constitutional Development & Others 2015 (5) SA 1 (GP), para 37.2; 39. See further N Bohler-Muller “The Highest Courts and Socioeconomic Rights” HSRC available at http://www.hsrc.ac.za/en/review/hsrc-review-sept-2014/highest-courts-and-socioeconomic-rights. D Liebenberg “Jeffery Insists Judiciary is Not Under Attack” SABC (25 March 2017) available at http://www.sabc.co.za/news/a/ee482f80408a11a886eeb785991bc033/Jeffery-insists-judiciary-not-under-attack-20172503.
[xxx] Discussion Document (note viii above), pg iii.
[xxxi] ANC “Peace and Stability Discussion Document” 5th National Policy Conference (12 March 2017) available at http://www.anc.org.za/sites/default/files/National%20Policy%20Conference%202017%20Peace%20and%20Stability_0.pdf, par 150.
[xxxii] B Hans “Protest Over Judicial Overreach” The Mercury (16 May 2017) available at https://www.pressreader.com/south-africa/the-mercury/20170516/281513636080463.
[xxxiii] The examples provided are not a closed list.
[xxxiv] Minister M Masutha (note xiv above).
[xxxv] W Brown & D Bekker “LSSA Strongly Condemns Disturbing Personal Attacks on Judge Bashier Vally and on the Judiciary” LSSA (11 May 2017) available at http://www.lssa.org.za/?q=con,376,LSSA-strongly-condemns-disturbing-personal-attacks-on-Judge-Bashier-Vally-and-on-the-judiciary&vid=. See also Chief Justice Mogoeng Mogoeng (note viii above).
[xxxvi] H Nhlabathi “Mogoeng: ‘The Law Remains the Final Word’” City Press (30 August 2015) available at http://city-press.news24.com/News/Mogoeng-The-law-remains-the-final-word-20150830. See also TGM Digital (note vi above); Chief Justice Mogoeng Mogoeng (note xii above); and Chief Justice Mogoeng Mogoeng “The Role of the African University and African Intellectuals in Deepening Democracy, Pursuing Social Justice and Supporting the National Development Agenda” (25 November 2014) available at http://www.judiciary.org.za/doc/SPEECH_%20Keynote-Address-by-Chief-Justice-Mogoeng-at-UNISA_25-November-2014.pdf.
[xxxvii] M Merten “Mogoeng: Fake Democracy v Judicial Independence” Daily Maverick (24 April 2017) available at https://www.dailymaverick.co.za/article/2017-04-24-mogoeng-fake-democracy-vs-judicial-independence/#.WS0-YMaB1o6. See also Discussion Document (note viii above).
[xxxviii] Interview with Francis Antonie “Lobby Groups Challenge Zuma’s Cabinet Reshuffle” Business Day TV (15 May 2017) available at http://www.businessdaytv.co.za/shows/newsleader/2017/05/15/lobby-groups-challenge-zuma-s-cabinet-reshuffle.