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Judicial authority in a changing South Africa

Published online by Cambridge University Press:  02 January 2018

Hugh Corder
Hugh Corder*
Affiliation:
University of Cape Town
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Extract

‘Our legal system cannot be outclassed … There are attacks, incriminations and accusations that our judgments in law are not objective and independent … To say our courts are just and impartial is not saying much. The truth is that there are no courts anywhere in the world whose judges' … integrity is higher than ours.’

H J Coetsee, Minister of Justice, 1986

‘The South African Constitution is different [from those which formalise an historical consensus of values]: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive, and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos expressly articulated in the Constitution.’

Justice Mahomed, Constitutional Court, 1995

Debates about the proper role and limits of judicial authority in the state are unusually heated, enduring and inconclusive. Talk about judicial review, the democratic deficit, the counter-majoritarian difficulty and the separation of powers matters, because what is at stake is the formal identification of the ultimate forum for political decision-making in a constitutional democracy.

Type
Research Article
Information
Legal Studies , Volume 24 , Issue 1-2 , March 2004 , pp. 253 - 274
Copyright
Copyright © Society of Legal Scholars 2004

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References

1. Cape Times, 11 January 1986.

2. Sv Makwanyane 1995 (3) SA 391 (CC) at para 262.

3. The classic treatment of the origins of the South African legal system is to be found in H R Hahlo and Ellison Kahn South Africa: The Development of its Laws and Constitution (Cape Town: Juta, 1960) chapters 5 and 6.

4. By virtue of the South Africa Act 1909 of the Parliament at Westminster (7 Edw VII, c 9).

5. For a summary account of the development of the courts in the nineteenth and twentieth centuries, see Hugh Corder ‘The Judicial Branch of Government: An Historical Overview’ in D P Visser (ed) Essays on the Histor?, of Law (Cape Town: Juta, 1989) pp 60–78.

6. By the Privy Council Appeals Act, 16 of 1950.

7. To describe the legal system, as so often happens, as ‘Roman Dutch’ is at best partially accurate; indeed, even before the post-apartheid period, South African private law had begun to borrow heavily from European sources more broadly.

8. See the Supreme Court Act, 59 of 1959.

9. See L G Baxter Administrative Law (Cape Town: Juta, 1984) for the most authoritative statement of administrative law in its ‘common law’ guise.

10. Two leading sources for a critical review of the South African judiciary generally are Albie Sachs Justice in South Africa (London: Chatto Heinemann, 1973); and John Dugard Human Rights and the South African Legal Order (Princeton: Princeton University Press, 1978).

11. See Dugard, n 10 above, pp 10–11, and Christopher Forsyth In Danger for their Talents (Cape Town: Juta, 1985) chapter 1, a detailed study of the record of the Appellate Division from 1950 to 1980.

12. Apart from Sachs and Dugard, both n 10 above, and Forsyth, n 11 above, see A S Mathews Law, Order and Liberty in South Africa (Cape Town: Juta, 1971); and Hugh Corder Judges at Work (Cape Town: Juta, 1984). A more philosophical approach was taken by David Dyzenhaus Hard Cases in Wicked Legal Systems (Oxford: Clarendon Press, 1991).

13. See Corder, n 12 above, pp 237 and 240.

14. See Harris v Minister of the Interior 1952 (2) S A 428 (AD), and the useful summary of these events in Dugard, n 10 above, pp 28–34.

15. See, for example, R v Ngwevela 1954 (I) SA 123 (AD); R v Abdurahman 1950 (3) SA 136 (AD); and R v Lusu 1953 (2) SA 484 (AD).

16. For a graphic account of the final effects of apartheid on the Appellate Division, see Stephen Ellmann In a Time of Trouble (Oxford: Clarendon Press, 1992).

17. See the apologia for the judiciary by Adrienne van Blerka Judge and be Judged (Cape Town: Juta, 1988).

18. All of the works cited in nn 10–12, 16 and 17 above contain such discussions. See further Hugh Corder and Dennis Davis ‘Law and Social Practice: An Introduction’ in Hugh Corder (ed) Essays on Law and Socia2 Practice (Cape Town: Juta, 1988) chapter 1, and all the chapters in Part Two of that book.

19. See the articles by Dennis Davis ‘The Case against the Inclusion of Socio-Economic Demands in a Bill of Rights except as Directive Principles’; by N Haysom ‘Constitutionalism, Majoritarianism, Democracy and Socio-Economic Rights’; and E Mureinik ‘Beyond a Charter of Luxuries; Economic Rights in the Constitution’, all of which appeared in (1992) 8 SAJHR at 475, 451 and 464 respectively.

20. See Project 58: Group and Human Rights, which ran from 1986 to 1994, producing several reports which influenced government thinking and the general debate about rights protection.

21. See the Constitutional Guidelines published in August 1988.

22. Those seeking further detail on the process of constitutional change are referred to Hassen Ebrahim The Soul of a Nation (Cape Town: Oxford University Press, 1998); and Richard Spitz with Matthew Chaskalson The Politics of Transition (Johannesburg: Witwatersrand University Press, 2000). A brief summary can be found in Hugh Corder ‘Towards a South African Constitution’ (1994) 57 MLR 491.

23. Splendeurs et miseres des courtisunes (Paris: Gamier-Flammarion, 1968) p 367.

24. Selections from the Prison Notebooks (London: Lawrence and Wishart, 1971) p 246.

25. See Hugh Corder ‘The Supreme Court: Arena of Struggle?’ in W G James (ed) The State of Apartheid (Boulder, Colorado: Lynne Rienner, 1987) pp 93–115.

26. See Ellmann, n 16 above, passim.

27. A ‘Black Law Students Anti-Bill of Rights Committee’ was established in Pretoria in 1988.

28. See, for example, the works cited at n 22 above.

29. For a contemporary account of the proceedings at CODES A, see Steven Friedman (ed) The Long Journey (Johannesburg: Ravan Press, 1993).

30. Act 200 of 1993, a statute of the tri-cameral ‘apartheid’ Parliament set up in 1983, the Principles being contained in Schedule 4.

31. Act 108 of 1996, the ‘Constitution of the Republic of South Africa’.

32. 1993 Constitution, n 30 above, Schedule 4, Principle 11.

33. 1993 Constitution, n 30 above, Principle IV.

34. 1993 Constitution, n 30 above, Principle V.

35. 1993 Constitution, n 30 above, Principle VI.

36. 1993 Constitution, n 30 above, Principle VII.

37. In addition to the works Listed at n 22 above, see Steven Friedman and Doreen Atkinson (eds) The Small Miracle (Johannesburg: Ravan Press, 1994).

38. For further detail see Lourens du Plessis and Hugh Corder Understanding South Africa's Transitional Bill of Rights (Cape Town: Juta, 1994), chapter 6; and Spitz n 22 above, chapter 11.

39. See Du Plessis and Corder, n 38 above, pp 196–197.

40. See Spitz, n 22 above, pp 191–197.

41. For further details, see the 1993 Constitution, n 30 above, Chapter 7.

42. 1993 Constitution, n 30 above, s 241 (2), read with Schedule 3.

43. 1996 Constitution, n 31 above, s 38.

44. Provided for in the Rules of the Constitutional Court.

45. 1996 Constitution, n 31 above, s 166 (b) and (c).

46. 1996 Constitution, n 31 above, Chapter 2.

47. 1996 Constitution, n 31 above, s 172.

48. 1996 Constitution, n 31 above, s 18.

49. 1996 Constitution, n 31 above, s 36.

50. 1996 Constitution, n 31 above, s 167 (1).

51. 1996 Constitution, n 31 above, s 167 (2).

52. 1996 Constitution, n 31 above, s 174 (5).

53. 1996 Constitution, n 31 above, s 176 (1).

54. Judges' Remuneration and Conditions of Employment Act, 47 of 2001, s 4.

55. 1996 Constitution, n 31 above, s 177 (I) and (2).

56. See Hugh Corder ‘The Appointment of Judges: Some Comparative Ideas’ (1992) 3 Stellenbosch LR 207.

57. 1996 Constitution, n 31 above, s 178.

58. 1996 Constitution, n 31 above, s 174 (6).

59. 1996 Constitution, n 31 above, s 174 (3).

60. 1996 Constitution, n 31 above, s 174 (4).

61. 1996 Constitution, n 31 above, s 174 (1).

62. 1996 Constitution, n 31 above, s 174 (2).

63. See Penuell Maduna (Minister of Justice and Constitutional Development) ‘Address at the Banquet of the Judicial Officers’ Symposium’; and M T Moerane ‘The Meaning of Transformation of the Judiciary in the New South African Context’ (2003) 120 SALJ 663 and 708 respectively, at 665 and 713. It is noteworthy that 128 judges (60%) have been appointed over the past nine years: see Maduna, above.

64. For a perceptive early review, see Malleson, K Assessing the performance of the Judicial Service Commission’ (1999) 116 Google Scholar SALJ 36.

65. As contemplated in the 1996 Constitution, n 31 above, s 175.

66. See Moerane, n 63 above, p 713.

67. This may seem an odd tension, in that the legislature at least ought not to be out of step with the ‘majority’ in a democracy. In reality, however, and especially in the current socio-political circumstances of South Africa, I would argue that the urgent needs of the majority in the socio-economic sphere may well run counter to the medium-term policies of the legislature and executive, leaving it to the Courts to resolve the tension, guided by a reading of the Constitution.

68. As are to be found in the 1996 Constitution, n 31 above, s 1.

69. Much has been written on the work of the CC so far. Within South Africa, the leading journals in this respect are the SA Law Journal and the SA Journal on Human Rights. The latter has devoted specific attention on an annual basis to an analysis of the previous year's activities of the CC: see (1996) 12 part 1; (1997) 13 part 2; (1998) 14 part 2: (1999) 15 part 2; (2000) 16 from 283 to 371; and (2001) 17 from 210 to 287 -each part contains statistics detailing judicial activity in the previous year's cases.

70. There is no doubt that the CC judges have set themselves, and the Court, this task. This kind of statement recurs in many of the early judgments handed down, as well as in extra-curial pronouncements by the judges: see, for example, Arthur Chaskalson ‘The Third Bram Fischer Lecture’ (2000) 16 SAJHR 193.

71. Albie Sachs, a prominent member of the African National Congress for over 30 years and the victim of a bomb attack by an agent of the apartheid regime, is the most obvious example.

72. The Chief Justice, Arthur Chaskalson, a member of the defence team in a number of prominent political trials and the founder of the major public-interest law firm, the Legal Resources Centre, is the leading example. The late Justices Didcott and Mahomed were in the same mould, the former as a member of the judiciary.

73. For example, Executive Council. Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC).

74. Such as in the TAC case (Minister of Health v TAC (No 1) 2002 (5) SA 703 (CC); In re certain Amicus Curiae Applications: Minister of Health v TAC 2002 (5) SA 713 (CC); and Minister of Health v TAC (No 2) 2002 (5) SA 721 (CC), see n 116 and accompanying text below), in which the court ordered greater provision by the state of anti-retroviral treatment for those infected by HIV/AIDS - the Minister of Health initially made dismissive remarks about the Court's stance.

75. Until the end of 2002, this majority consisted of Chaskalson CJ, and Ackermann, Goldstone, Kriegler, O'Regan and Sachs JJ, to which must be added Didcott J until his death in 1998. I must hasten to add that these judges have very varied backgrounds -South African society remains. however, very conscious of race.

76. This is in no way to minimise the judgments handed down by the other members of the Court, especially those of Mahomed J (until his move to head the SCA in early 1998) and Langa DCJ.

77. S v Markwanyane 1995 (3) SA 391 (CC).

78. See F Du Bois ‘Tenure on the Constitutional Court’ (2002) 119 SALJ 1.

79. On 17 February 1995.

80. S v Zuma 1995 (2) SA 642 (CC) was the first, fully two months before S v Makwanyane 1995 (3) SA 391 (CC).

81. S v Makwanyane 1995 (3) SA 391 (CC).

82. By Chaskalson P (as he then was styled).

83. For contemporary reviews of the judgments, see (1996) 12 SAJHR 61 at 61–78and 138–141.

84. 1993 Constitution, n 30 above, s 11 (2).

85. 1993 Constitution, n 30 above, ss 8.9 and 10 respectively. The right to equality was particularly important, there being substantial suspicion, if not direct evidence, that the death penalty was imposed unduly frequently on black South Africans.

86. All indications during the negotiations were that the political parties preferred this issue to be resolved by the Court.

87. Referred to by no fewer than six of the judges as support for their view.

88. In the 1980s South Africa had the highest annual rate of capital punishment of any country; several high-profile campaigns to save the lives of those sentenced to death for politically inspired acts of violence contributed to a moratorium on the carrying out of such sentences in 1989.

89. H Klug ‘Striking Down Death’ (1996) 12 SAJHR 61 at 70.

90. About 400 convicted prisoners languished on death row.

91. For example, S v Bhulwana; S v Gwadiso 1996 (I) S A 388 (CC); and S v Williams 1995 (3) SA 632 (CC).

92. Executive Council, Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC); and Premier of KwaZulu-Natal v President of the Republic of South Africa (1995) 12BCLR 1561 (CC).

93. For example, Case v Minister of safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC), which dealt with the possession of pornography and the right to privacy.

94. For example, Brink v Kitshoff NO 1996 (4) SA 197 (CC); Larbi-Odam v MEC for Education, North-West Province 1998(I) SA 745 (CC); and National Coalition for Gav and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC).

95. 1996 (4) SA 671 (CC).

96. Promotion of National Unity and Reconciliation Act, 34 of 1995, s 20 (7).

97. AZAPO v President of the Republic of South Africa 1996 (4)SA671 (CC) at para 19.

98. To be found in AZAPO v President of the Republic of South Africa 1996 (4) S A 671 (CC) at para 17.

99. See, for example, Dugard, John Memory and the Spectre of International Justice: A Comment on AZAPO (1997) 13 Google Scholar SAJHR 269; and D Moellendorf ‘Amnesty, Truth and Justice: AZAPO’ (1997) 13 SAJHR 283.

100. The case to be discussed is the second of three involving the same parties as follows: President of the Republic of South Africa v SARFU 1999 (2) SA 14 (CC) (SARFU I); President of the RSA v SARFU 1999 (4) SA 147 (CC) (SARFU 11); and President of the RSA v SARFU 2000 (1) SA 1 (CC) (SARFU III).

101. For a good summary of the developments see Cora Hoexter The New Constitutional and Administrative Law (Volume Two - Administrative Law) (Cape Town: Juta, 2002) chapter 1.

102. 1993 Constitution, n 30 above, s 24; 1996 Constitution, n 31 above, s 33.

103. ‘Administrative action’ is the key to unlocking the rights to administrative justice, both in the Constitution, and the Promotion of Administrative Justice Act, 3 of 2000, s 1.

104. A relatively early judgment of the CC ruled that the prerogatives no longer existed after 1994, unless and to the extent that they were incorporated in the Constitution: see President of the RSA v Hugo 1997 (4) SA 1 (CC).

105. Seen 100 above.

106. 1996 Constitution, n 31 above, s 84 (2) (f).

107. Seen 100 above.

108. It runs to 44 pages in the law reports.

109. President of the RSA v SARFU 1999 (4) SA 147 (CC) at paras 36, 38, 41 and 48.

110. See particularly President of the RSA v SARFU 1999 (4) SA 147 (CC) paras 40.42 and 45.

111. President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 42.

112. President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 43

113. President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 44, adopting the view of Rehnquist J in Laird et al v Tatum et al 409 US 824 (1972) at 836.

114. President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 70.

115. President of the RSA v SARFU 1999 (4) SA 147 (CC) at para 75.

116. See Minister of Health v TAC (No 1) 2002 (5) SA 703 (CC); In re certain Amicus Curiae Applications: Minister of Health v TAC 2002 (5) SA 713 (CC); and Minister of Health v TAC (No 2) 2002 (5) SA 721 (CC).

117. 1996 Constitution, n 31 above, at s 27 (1) (a) and 28 (1) (c), respectively.

118. See Minister of Health v TAC (No 2) 2002 (5) SA 721 (CC) at para 5.

119. President Mbeki's views on HIV/AIDS are widely known, and have been greeted with much scepticism, if not derision.

120. Soobramoney v Minister of Health. KwaZulu - Natal 1998 (1) SA 765 (CC).

121. Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC).

122. Minister of Health, v TAC (No 2) 2002 (5) SA 721 (CC) at paras 10–22.

123. 2002 (5) SA 721 (CC) at para 25.

124. 2002 (5) SA 721 (CC) at paras 40–79.

125. 2002 (5) SA 721 (CC) at paras 80 and 93–95. respectively.

126. 2002 (5) SA 721 (CC) at paras 37 and 38.

127. 2002 (5) SA 721 (CC) at paras 96 and 97.

128. 2002 (5) SA 721 (CC) at para 98.

129. 2002 (5) SA 721 (CC) at paras 106–111.

130. 2002 (5) SA 721 (CC) at paras 124–133.

131. Through the ‘certification’ of the 1996 Constitution: see Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC); and Certification of the Amended Text 1997 (2) SA 97 (CC).