Ball in the court of politicians

2011-10-04 00:00

THE ANC chief parliamentary whip, Mathole Motshekga, is the latest member of the ruling party to castigate the judiciary. He warned the Constitutional Court to leave laws made by Parliament alone. He follows in the footsteps of ANC Youth League leader Julius Malema, the ANC Secretary-General Gwede Mantashe and Deputy Correctional Services Minister Ngoako Ramathlodi.

Deputy Chief Justice Dikgang Moseneke, delivering the annual Claude Leon lecture at the University of Cape Town last week, stated unambiguously that there was no place for such “wanton” attacks on the Constitutional Court and the Constitution. It is however important to understand how this situation has arisen, and thereby attempt to diffuse a potentially explosive political and constitutional situation, which has its roots in what is called the countermajoritarian dilemma, which Moseneke referred to in his address.

In countries where there are supreme constitutions, like ours, the courts, whose members are appointed and not elected, are expressly involved in interpreting the provisions of their constitutions and invariably in using a testing right in a process of judicial review, to invalidate legislation or executive conduct conflicting with it, giving rise the anti-majoritarian dilemma. This means that the ultimate and final word on constitutional issues is given to the courts that have the power to declare invalid legislation or conduct of a democratically elected parliament and executive respectively if it is in conflict with the Constitution.

In the 1950s, the exercise of the testing right by the then Appellate Division of the Supreme Court of South Africa in relation to the entrenched provisions of the South Africa Act, created an unprecedented constitutional crisis and a battle royal relating to the removal of coloured voters from the common voters’ roll, between the Appellate Division of the Supreme Court and the Union Parliament that lasted for five years. It involved the controversial and questionable packing of the Appellate Division of the Supreme Court. The Harris and High Court of Parliament cases involved the testing right and was clearly anti-majoritarian, whereas the majority of the court in the last case in this saga, the Collins case, represented a retreat from the politically problematic consequences of anti-majoritarianism. Only the courageous dissenting judgment of Schreiner JA, was anti-majoritarian.

In contrast to the above cases, the 1996 case of Executive Council of the Western Cape Legislature versus President of the Republic of South Africa, the Constitutional Court used the testing right and invalidated a law of the democratic Parliament of South Africa. This case was brought about when President Nelson Mandela, acting in terms of the powers granted to him by proclamation in terms of the Local Government Transition Act, amended the main act, by giving to him, as the president, the power to mark out local ward boundaries for the municipal elections in a manner favouring the ANC.

A political and constitutional crisis loomed and threatened to obstruct the conducting of nation- wide, local government elections and stall the process of democratic transformation taking place in South Africa. This was aggravated by the National Party’s pledge to take its cause to defend the Western Cape’s autonomy to the streets by rolling mass action, if the courts did not defend it.

The Constitutional Court, headed by Judge Arthur Chaskalson, in a carefully worded and judiciously reasoned judgment invalidated the president’s proclamation and Parliament’s amendment of the Local Government Transition Act. Mandela responded to the court’s judgment with characteristic statesmanship by praising the Constitutional Court’s judgment and observing that “this judgment is not the first, nor the last, in which the Constitutional Court assists both the government and society to ensure constitutionality and effective governance”. Thus the president immediately defused a crisis situation which had arisen out of the anti-majoritarian dilemma, inherent in the nature of our Constitution.

The Western Cape case represents a significant victory for the constitutional government, since for the first time the Constitutional Court had invalidated a highly politicised parliamentary statute, passed by a democratically elected and legitimate national legislature and a president, acclaimed both nationally and internationally for his moral and political courage and sagacity, who responded with characteristic magnanimity to the court’s decision. The great ship of state was thereby navigated by both the Constitutional Court and Mandela through the turbulent seas of potentially hazardous conflict to reach safe and certain water.

Since 1994 we have avoided a constitutional crisis caused by judicial review and the anti-majoritarian dilemma, although some statements made by ANC politicians have disparaged the independence and legitimacy of the courts. For example, in a statement by the national executive on the occasion of the ANC’s 93rd anniversary it was said that some judges do not see themselves as “part of the masses” and that it was a challenge to “transform the collective mind-set of the judiciary to bring it into consonance with the vision and aspiration of millions engaged in the struggle to liberate our country from white minority domination”.

In the future when the courts will, inter alia, have to take controversial decisions on constitutional issues, it remains to be seen whether the approach of Mandela will prevail in the future or whether the anti-majoritarian dilemma will cause a constitutional and political crisis. This will occur if the kind of wanton and ferocious attacks on the judiciary and in particular the Constitutional Court continue. What is required is sagacious and dispassionate leadership by both the judiciary and the executive. Deputy Chief Justice Dikgang Moseneke demonstrated this kind of leadership in his lecture at UCT. The ball is now in the court of the politicians and the executive.

• Professor George Devenish is senior research associate at UKZN and one of the students who assisted in drafting the interim Constitution.


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