In defenceof the courts

2011-09-22 00:00

IN recent times the courts, especially the Constitutional Court, have came under attack. The main charge is that they have assumed an oppositional role to the Legislature or Parliament.

The judgments of such courts have been questioned. Assertions have been made to the effect that judgments have been made that are in the main a function of ideological positioning rather than jurisprudential logic.

Judicial independence emanates from the doctrine of separation of powers which is the major basis for a democratic state, therefore the courts are subject only to the law and the Constitution.

The poor are often at the receiving end of government policy-making processes and indeed courts’ judgments. However, in my experience as an activist in civil society, I have found that the courts, especially the Constitutional Court, have been the only available avenue for poor people.

Law-making processes have tended to benefit certain sections of the population to the disadvantage of others. Traditional leaders and mostly white commercial farmers have been the most consulted groups in the making of laws related to land reform and rural development.

The Constitutional Court has not been found wanting in declaring unconstitutional legislation which has essentially been bulldozed through. Moreover, the court has also progressively interpreted the constitutional provisions to the benefit of the poor. The assertion that the courts have been used by those who are resisting transformation is a lie.

The Grootboom case is one example where the court affirmed the right to housing for poor people and helped force the government to build houses for them. Closer to home, the KZN High Court once lambasted the KZN Legislature for unilaterally deciding that Matatiele will fall under Eastern Cape. The KZN Legislature had not consulted the people who were affected.

Further, the KZN Slums Clearance Act was thrown out by the court after many attempts by the poor shack dwellers of Durban to engage government about their place in the city. Again, the government did not engage the people affected by the act.

The Communal Land Rights Act (Clara) which was originally planned to benefit rural landless people was later changed to benefit traditional leaders at the expense of the rural people whose views were ignored. The only available avenue was a constitutional challenge and the court found the act to be unconstitutional in terms of the procedure followed and made substantial comments about the fact that the act built on the foundations of the old notorious Black Authorities Act. The making of this act had been almost 12 years in the making, only to be thrown out within six months by the Constitutional Court for the same reasons the rural poor had been trying in vain to raise with policy makers.

Today we stand on the brink of two troublesome bills that will negatively affect the conditions of black landless farm dwellers and rural people in traditional communities if passed as they are. The Land Tenure Security Bill will be a twin of the 1913 Land Act and the Traditional Courts Bill will revive the Black Authorities Act which Govan Mbeki, Nelson Mandela and Albert Luthuli fought hard against.

The process of engaging rural poor people who will live with the consequences of such legislation is appalling. Only traditional leaders and commercial farmers are consulted to ensure their interests are protected. The poor and civil society will have no option but to approach the court to throw these bills out on technical and substantial grounds.

If the critics of the Constitutional Court do not want the court to overturn some of the legislation, then the government has to beef up its capacity in terms of law making. Some of the legislation is badly written as a result of shoddy work.

Lastly, the fundamental responsibility of the Constitutional Court is to adjudicate on the constitutionality of laws based purely on jurisprudential logic. There are many examples where courts have ruled in favour of government. Most recently, the court refused to uphold a challenge to the Expropriation Act and held that government can expropriate land before the amount of compensation has been agreed upon.

In the Soobramoney case, the government was held not to have a duty to provide kidney dialysis to all patients in public hospitals, as such treatment would be far too expensive. So the argument that courts have assumed an oppositional role does not hold water.

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