“SOUTH AFRICA’S JUDICIAL TRANSFORMATION WITHIN TWENTY YEARS OF CONSTITUTIONAL DEMOCRACY”

“SOUTH AFRICA’S JUDICIAL TRANSFORMATION WITHIN TWENTY YEARS OF CONSTITUTIONAL DEMOCRACY: HOW FAR HAVE WE TRAVERSED THE JOURNEY TO REALIZE THE OBJECTIVES?”

Introduction:

This article does not seek to exhaustively canvass all issues related to South Africa’s judicial transformation. It merely seeks to reflect on South Africa’s judicial transformation within thirty years of constitutional democracy. In April 2024, South Africa reached its milestone of completing its thirty years of constitutional democracy. The thirty years of constitutional democracy come after long years of oppression and political exclusion of the black majority from participating in the country’s political mainstream by the then apartheid regime. During the period of apartheid segregation and oppression of the black majority, the judicial levers of power were at the center of oppression through its politically tainted judgments of political activists. The most notably political trials are those of prominent black leaders like Steve Biko and Neil Agget. Some cases are still under investigation by the Truth and Reconciliation Commission [TRC] and inquests by courts under South Africa’s constitutional democracy. This was also a period where South Africa’s system of political administration took a leaf from the West Minister’s political system where Parliamentary sovereignty was at the heart of political administration. Parliament reigned supreme, and the rule of law of the land. In terms of this political system, the judiciary was inherently bound by Parliamentary decisions and legislative provisions. The judiciary’s role was purely to interpret the law as it was laid out by Parliament and not to question it. This conundrum placed South Africa’s judiciary system as an integral part of the apartheid oppressive instrument. South Africa’s judicial oppressive role during apartheid is well-documented, and this article is not intending to dwell into that space again.

Political transition to constitutional democracy:

In the post-apartheid political administration, the African National Congress [ANC] as a ruling political party set out progressive principles meant to transform South Africa’s judicial system, which entail the following:

Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a non-racial way and that the wisdom, experience, and judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of South African society. In a free South Africa, the legal system shall be transformed to be consistent with the new Constitution. The Court shall be accessible to all and shall guarantee to all equal rights before the law;

There shall be a separation of powers between the legislature and judiciary, with appropriate checks and balances to ensure accountability, responsiveness, and openness; The legal system shall ensure the equality of all before the law and an equitable legal process. Equality before the law includes laws, programs, or activities that have as their objects the amelioration of the conditions of the disadvantaged on the grounds of race, color, or gender;

The judiciary shall be appropriately qualified, independent, and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.

It is well-documented that the pace of South Africa’s judicial system changed its course and moved away from being the instrument to perpetuate gross violations of human rights and oppression into a neo-liberal system that safeguards civil liberties. The constitution aimed to establish a post-apartheid society based on democratic values, social justice, and fundamental human rights. The fundamental intentions were not only to defend “natural rights’ and restrict the powers of the state over the individual but also to play a role in building an open, democratic society, holding the government to account where necessary. South Africa shackled its past and moved away from the West Minister’s political system of Parliament being the supreme law of the land. In its constitution, South Africa adopted the constitution as the supreme law of the land in the following manner:

“We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to – Heal the divisions of the past and establish a society based on democratic values, social justice, and fundamental human rights. Lay the foundation for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law. Improve the quality of life of all citizens is equally protected by law. Improve the quality of life of all citizens and free the potential of each person and build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations”.

The Constitution assigned and recognized the powers of the courts in constitutional matters and determines that whenever a court decides a constitutional matter that is within its power, a court must declare any law or conduct that is inconsistent with the constitution to be invalid to the extent of its inconsistency [S 172(1)(a). The constitution being the supreme law of the Republic, and any law or conduct inconsistent with it is invalid, and the obligations imposed by the constitution must be fulfilled [2].

Thirty years of constitutional democracy:

There is absolutely no doubt that South Africa’s Judiciary has changed over the last thirty years, despite the fact that much needs to be done. It is well-documented by political commentators, historians, and scholars that South Africa’s judiciary has been a beacon of hope for ordinary citizens within the thirty years of constitutional democracy. It served as a pillar of strength during the cases of unprecedented corruption in the country in upholding the rule of law regardless of who was/is involved in corruption. The role and effectiveness of South Africa’s judiciary in upholding the rule of law regardless of who is involved manifested or invited many critics and enemies alike, especially from the political party the African National Congress. Strangely, the plethora of diatribe and destructive criticism against the judiciary emanated from the African National Congress [ANC], which set out progressive principles to transform the judiciary. Even though the ANC pioneered and advocated for a transformed judiciary to uphold the rule of law from the inception of constitutional democracy, as the years progressed, it became the ardent destructive critic of South Africa’s judiciary. Notably, most of the toxic salvo in the years leading up to constitutional democracy came from the African National Congress [ANC]. The answer to such vitriolic attacks was that most of the people who colluded with the rule of law and immersed in corruption are leaders of the African National Congress. Thus, South Africa’s judiciary system became their enemy number one. To look at the flip side of the coin of these vitriolic attacks also such the effectiveness of the judiciary to uphold the rule of law without fear, favor, and prejudice. In August 2009, South Africa’s judiciary found itself in a precarious position. The then Secretary-General [SG] of the African National Congress Gwede Mantashe labeled the judges as “counter-revolutionary”.

In defense of former President Jacob Zuma, Gwede Mantashe further stated the following about the judges “this is psychological preparation of society so that when the constitutional court judges pounce on our president we should be ready at that point in time”. Our revolution is in danger; we must declare to offend it till the end”.

The African National Congress Youth League attacked Deputy Chief Justice, Dikgang Moseneke after his reported remark that “I have chosen my work very carefully. It is not what the ANC wants or what delegates want, it is about what is good for our people”.

The then senior ANC member and Minister of Tourism Lindiwe Sisulu said the following about the judiciary “the judiciary is not untouchable and the South African Constitution is not a holy script”. She further stated that “evidence suggests the judiciary may be in cahoots with the elite against the very people it should be defending, the problem with the judiciary is it has not been above the fray where it should have been”.

She further stated that “the courts do make law, and if the result is unsatisfactory after 28 years, must we not have a second look at how we can aid the courts through judicial reform and reform of the Constitution”. She referred to some judges as “niggers” who are colonized. Despite toxic salvo and different perspectives against the judiciary on the manner in which it discharged its duties and responsibilities, it has made progressive strides in its transformation process. The attacks against the judiciary by senior leaders of the African National Congress [ANC] not only were an attempt to delegitimize the judiciary in the eyes of ordinary citizens but also to undo all the African National Congress’s efforts to set out a transformed South African judiciary system.

Ground-breaking Judgments within thirty years of constitutional democracy:

The transformation of South Africa’s judiciary is a work in progress, and it is inevitable that as the judiciary discharges its constitutional duties and responsibilities, some weaknesses would manifest. It is inevitable that there are others who would feel aggrieved and spew toxic salvo against the judiciary. It would be unfair to only judge and assess South Africa’s judiciary transformation through grievances against it and overlook the pivotal work performed by the judiciary as reflected through its judgments. It is well-documented that within the thirty years of constitutional democracy, South Africa’s judiciary had issued profound and ground-breaking judgments that altered power relations on various aspects.

Justice Pius Langa, the second Chief Justice of the Constitutional Court, wrote and delivered ground-breaking judgments on indirect discrimination in terms of section 9(1) of the Constitution Act 108 of 1996 in the Walker case. He further interpreted section 16(1) of the Constitution Act 108 of 1996, which provides that “everyone has the right to freedom of expression” to find full expression in the daily lives of ordinary citizens in the Islamic Unity Convention case. More importantly, the Constitutional Court changed patriarchal power relations in the customary marriage marital in line with the constitutional imperatives in the Bhe case.

Restitution of Land Rights and a mandatory canon on constitutional interpretation:

Restitution of land rights is one of South Africa’s land reform programs, and it became cumbersome and increasingly difficult to address land restitution and settlement cases before the Land Claims Court because there was no judicial precedent. In a groundbreaking case in the Department of Land Affairs v Others v Goedegelegen Tropical Fruits [Pty] Ltd 2007 [CC] SA 199, Justice Dikgang Moseneke introduced for the first-time section 39(2), which was referred to as “a mandatory constitutional canon of statutory interpretation”. Justice Dikgang Moseneke articulated “a mandatory constitutional canon of interpretation” in the following terms.

“It is by now trite that section 39(2) of the Constitution has introduced a new approach to the interpretation of statutes. This section obliges courts to promote “the spirit, purport, and objects of the Bill of Rights” when construing legislation. This new approach has been described as “a mandatory constitutional canon of statutory interpretation. The duty to seek an interpretation that promotes the objects of the Bill of Rights arises even where the parties have not raised the issue because the obligation imposed by the section, is, as was observed in Phumelela mandatory”.

Consistent with section 39(2), the Constitutional Court laid down the right approach to construing legislation similar to the Act in the Phumelela case. There Moseneke DCJ reaffirmed the approach in these terms.

“It is by now trite that not only the empowering provision of the Constitution but also of the Restitution Act must be understood purposively because it is remedial legislation umbilically linked to the setting of section 2(1) of the Restitution Act; we are obliged to scrutinize its purpose. As we do so, we must seek to promote the spirit, purport, and objects of the Bill of Rights. We must prefer a generous construction over a merely textual or legalistic one to afford claimants the fullest possible protection of their constitutional guarantees.

In searching for the purpose, it is legitimate to seek to identify the mischief sought to be remedied. In part, that is why it is helpful, where appropriate, to pay due attention to the social and historical background of the legislation. We must understand the provision within the context of the grid, if any, of related provisions and of the statute as a whole, including its underlying values. Although the text is often the starting point of any statutory construction, the meaning it bears must pay due regard to context. This is so even when the ordinary meaning of the provision to be construed is clear and unambiguous”.

The Judiciary and Protection of Socio-Economic Rights:

In its infancy of transformation, the Judiciary was faced with a plethora of challenges to interpret constitutional imperatives in line with real societal challenges. It was faced with the interpretation and enforcement of civil, political, and socio-economic rights in a new constitutional democracy. It was also faced with the edifice of the separation of power doctrine. At the heart of the enforcement of socio-economic rights was the issue of government budgetary constraints.

The case of Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (Grootboom) is one of the landmark judgments on the enforcement of socio-economic rights within the thirty years of South Africa’s constitutional democracy. The judgment was hailed as a landmark judgment in the enforcement of socio-economic rights, namely the right to access to adequate housing (section 26), following the dismal failure in Soombramoney v MEC Health, KwaZulu – Natal 1997 (12) BCLR 1696, to protect the right of access to health care (section 27(3)).

The Court in Grootboom ordered the government to provide houses for a group of squatters who were living in intolerable conditions in Wallacedene in Cape Town. In reaching its decision, it found that the national housing policy of the Department of Housing was ‘unreasonable” as it did not cater for those people who find themselves in an emergency situation. The judicial enforcement of socio-economic rights was endorsed by the Constitutional Court in Minister of Health v Treatment Action Campaign 2002 (10) BCLR 1033 when it held that:

“The judicial review of the legislations and policies of the state (in relation to the enforcement of socio-economic rights) constituted an intrusion into the domain of the exercise, but an intrusion mandated by the Constitution itself. There is also no merit in the argument advanced on behalf of the government that a distinction should be drawn between declaratory and mandatory orders against government. Even simple declaratory orders against government or organs of state can affect their policy and may well have budgetary implications. The government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so. The enforcement of socio-economic rights, which requires an assessment by the Court as to whether legislative and other policies developed by the state in the promotion of these rights are “reasonable”, has become an instrument for the promotion of human rights.

Conclusion:

The issue of the transformation of the judiciary remains one of the central challenges that the country must continue to address. It is crystal evident that transformation is not an event, but a prolonged struggle. This struggle must further entrench the independence of the judiciary, for which so many South Africans fought. This struggle must promote human rights, social justice, and the dignity of all South Africans.

Thank you,

Adv NE Malgas