Alet Janse van Rensburg

Judiciary can't be highest form of accountability

2016-12-08 17:07
Deputy Chief Justice Dikgang Moseneke. PHOTO: JOHANN HATTINGH

Deputy Chief Justice Dikgang Moseneke. PHOTO: JOHANN HATTINGH

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A lot of people write about and consider themselves experts on South African politics. When you work in news, you read and hear a lot of opinions and quickly learn to distinguish between those who are just adding to the noise and those who are worth paying attention to.

There are many of the former; not so many of the latter.

When the former Deputy Chief Justice of the Constitutional Court offers an opinion critical of the state of our democracy, you listen. And you take notes.

At a symposium this week at the University of Cape Town honouring his life’s work, Justice Dikgang Moseneke was careful to be too personal in his criticisms of government, but the underlying message of his talk with High Court Judge Dennis Davis was clear: Two arms of government are failing dismally at their jobs, which means the court is heavily overburdened and increasingly tasked with adjudicating political contestations.

With the courts being the final line of defense against ever rising state inefficiency and corruption, society, in turn, is becoming increasingly critical of whether the judicial system does enough to bring about social transformation. This leaves the courts, and judges, in a position where they're damned if they do, and damned if they don’t. If the court turns its back on desperate citizens that the political process has failed, it decidedly fails in the eyes of the people. If it does too much it opens itself up to attacks for meddling in the democratic process.

It seems the matter becomes simplified when one takes into account that the nature of the cases in front of the Constitutional Court these days is becoming less social and more political. The court certainly can’t do anything to attract more cases about socio-economic rights.

Moseneke interestingly points out that cases about socio-economic rights dried up around the eleventh year of the Constitutional Court. After the seminal Grootboom and Others v Government of the Republic of South Africa and Others, and Minister of Health v Treatment Action Campaign, it seems social movements took a different turn and litigation around these issues dried up. There have only been three or four cases on the matter of land reform in 22 years, mostly due to lack of government action in this regard.

And so, it’s nice to chase after first order rule of law stances like the Helen Suzman Foundation is keen to do, but in fact, the bigger challenge is around the much more muscular notion of the rule of law, which would actually push government and state to a higher level of accountability that would ultimately bring socio-economic relief to marginalised groups.

Right now litigation around political contestation is at its highest pitch ever. Just about everything the Constitutional Court touches is of a political nature.

And it is not sustainable. The separation of powers is built exactly in a way that the court should really only come into the equation when it absolutely has to. Absent obvious constitutional violations, the executive must be allowed to do their work – and after we have democratically elected its officials, we can only hope they do it lawfully and properly. The same goes for Parliament.

However, over the last eight years, the floodgates of misgovernance have been opened. Suddenly Parliament could not regulate itself. Suddenly the executive had such levels of misgovernance that it “compelled the courts to try and push back”, says Moseneke.

Around budgetary issues and tender procurement of goods and services there was much to be done. In effect, the controls that the Constitution envisaged and all the measures put in place to protect democracy underperformed to such an extent that the court became not the last site of conflict resolution, but the first.

“I still hope that the people will be able to reclaim that space and the courts will have to do less as we move on,” says Moseneke.

“I hope our people understand that they’re overburdening one arm of state. And that, in fact, the highest form of accountability is not the Public Protector or the judiciary. It must be the people themselves.”

Electoral accountability remains the highest form of accountability and the best chance we have of improving the lives of all South Africans. If you get good governance and you don’t allow unduly long tenure of office then there’s a much better chance of improving efficiency than having to go to court each time. If this year’s local elections are anything to go by, the electorate is slowly but surely learning this lesson.

* Alet Janse van Rensburg is Opinions Editor of News24.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    dikgang moseneke  |  constitutional court
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