Mondli Makhanya

Jury is in on ANC’s failures

2017-05-21 05:48
From left: Justice Zak Yacoob, Minister of Finance Pravin Gordhan, Chief Justice Mogoeng Mogoeng and Deputy Chief Justice Dikgang Moseneke at the Constitutional Court in Braamfontein in this file picture Photo: Lerato Maduna

From left: Justice Zak Yacoob, Minister of Finance Pravin Gordhan, Chief Justice Mogoeng Mogoeng and Deputy Chief Justice Dikgang Moseneke at the Constitutional Court in Braamfontein in this file picture Photo: Lerato Maduna

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In any discussion on the issue of “judicial encroachment” or “judicial overreach”, there is no better place to start than by listening to the words of the erudite Dikgang Moseneke, South Africa’s recently retired deputy chief justice.

In an address at the University of the Western Cape two years ago, Moseneke spoke eloquently about the concept of the separation of powers in the Constitution and its practice in real life.

“The tramlines of state power may be bright, but not always certain and clear. Tension between branches of government is neither novel nor infrequent. Like all power struggles, they can be bitter and relentless.”

Moseneke pointed out that, while much noise was made when judges ruled against the legislature and the executive, courts daily made rulings that inevitably proved to be unpopular with losing parties. He referred to a judicial inside joke that “every decision we make, sadly, leaves someone’s nose twisted and bleeding”.

“The all-important consideration,” Moseneke said, “is whether a court has acted within the four corners of the Constitution.”


Moseneke made a case for why he believed the South African judiciary had not overreached itself or crossed the line in the separation of powers. He pointed out that the judiciary had been “meticulous not to tread on the domain of the executive or the legislature” and not to invade the terrain of other arms. Usurping the roles of the other arms of state would compromise their impartiality.

He also made a case for the role of the courts in checking power and advancing democracy.

If courts did not obey the Constitution’s edict that they “pronounce on the legal validity of the exercise of public power”, the “ambitious democratic project to create a better life for all will never flourish”, he argued. While it was inevitable that tension would arise, it should always be clear that the various arms were not competing for power.

“Rather, they are symbiotic, or so the Constitution intends. They are part of a beautiful mosaic that can only work if we bring our best selves to the fore,” said Moseneke

Moseneke’s words echoed the sentiments of a judgment of the earlier years of our constitutional democracy, when judges were asked to venture into relatively uncharted territory. The Constitutional Court had been asked to rule on the Treatment Action Campaign’s bid to overturn government’s decision not to avail Nevirapine – which prevents mother-to-child transmission – to HIV-positive pregnant women. In the strictest of terms, this was purely a policy matter that many believed should have been left in the hands of governors and administrators. But because government’s stubbornness was resulting in preventable infections, it reached the ultimate arena of arbitration.

In a move deemed controversial by the Thabo Mbeki administration and some legal experts, the judges ordered that the state provide the drug to mothers and their unborn babies.

But, even then, they were conscious that – even though there were obvious rights – they were venturing into an area where there would be budgetary implications.

“Courts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation,” the judgment said.

In their judgment, they spoke of the judicial, legislative and executive functions of the state, finding an “appropriate constitutional balance” between rights and the budgetary implications of enforcing these rights.

A culture of clumsiness

The Nevirapine case was one of the pioneering cases in constitutional South Africa. Together with the Soobramoney matter, which dealt with the constitutional right to medical treatment, and the Grootboom case, about the rights of the poor to decent shelter and services, these tested the boundaries. These were necessary tests. The debate was also held at an appropriately sensible level.

Many of the cases that the judges are having to adjudicate now should never have landed before them in the first place. The Limpopo textbook case, the social grants crisis, the Nkandla looting scandal, the nuclear procurement process debacle, the Hlaudi Motsoeneng soap opera and many cases against the Speaker of Parliament are but some that should have been resolved much earlier.

The fact that these matters ended up before the courts is not an illustration of a judiciary with an appetite for political power. Nor is it an indication of a society that has suddenly turned litigious. It is, rather, evidence of a culture of clumsiness, wrongful decision making, taking of short cuts and malfeasance. It is about governance failure and disregard for the proper way of doing things. It comes from an attitude of, “we will not play by the rules because they are not for us”.

Before screaming about judicial encroachment and judicial overreach, those in power should consider these pertinent words in the ANC’s latest Strategy and Tactics document: “Instead of being the centre of transformative and ethical rectitude, increasingly the ANC and the government it leads have occasionally [had] to be directed from elsewhere – in the manner of ‘lawfare’ – to do right.”

Read more on:    anc  |  dikgang moseneke


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