Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa's Transformation (original) (raw)
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The Politics of Principle: The First South African Constitutional Court, 1995-2005
2013
Introduction 1. The Chaskalson Court's achievement 2. A conceptual framework for assessing the performance of constitutional courts in interdisciplinary terms 3. Operationalising the conceptual framework to explain the Court's achievement 4. The political context for judicial review, 1995-2005 5. Constraints and opportunities: the law/politics distinction in South African legal-professional culture 6. Death, desire and discrimination: the Chaskalson Court between constitutional and positive morality 7. Social rights 8. Property rights 9. Political rights 10. Cross-cutting strategies 11. Conclusion.
Under apartheid the judiciary failed to meaningfully confront a racially-divided South Africa in which civil and political rights were denied to the majority of South Africans. The apartheid judiciary was able to rationalise a generalised failure to craft socially just rulings by claiming that law was distinct from morality. In the constitutional era judges are not afforded the luxury of amorality. The Constitution, which is an explicitly moral document, binds the judiciary (along with the legislature, the executive and all organs of state) to upholding constitutional values. The judiciary is expected to ‘promote the values that underlie an open and democratic society based on human dignity, equality and freedom’ and it is required always to ‘promote the spirit, purport and objects of the Bill of Rights’. How, then, has the post-apartheid judiciary dealt with the challenges of adjudication in an increasingly socio-economically divided society in which poverty is widespread and inequality is escalating? As an institution, the judiciary is found to have failed to advance transformative justice in critical systemic ways. Specifically, the judiciary has failed to improve access to legal representation for the poor (by not delineating a comprehensive right to legal representation at state expense in civil matters and under-utilising the in forma pauperis procedure in courts), and to promote public interest litigation (through maintaining a practice of wide discretion in awarding costs orders, including awarding costs against winning public interest organisations, and as a result of the Constitutional Court’s reticence to allow direct access, even for clear matters of public interest). Finally, the weak socio-economic rights record of the Constitutional Court has further diminished the capacity of the judiciary to act as an institutional voice for the poor.
Judicial Deference and Democracy in Socio-Economic Rights Cases in South Africa
2011
In this paper I present a problematisation of deference as a judicial strategy to account for institutional problems with judicial review in socio-economic rights cases. On the assumption that deference operates as an obstacle to effective judicial enforcement of socio-economic rights, I describe certain internal inconsistencies in its conception and use. In particular I point out that the democratic justification often offered for deference - that courts as unaccountable institutions defer to the democratically accountable branches out of concern for democracy - both reflects an impoverished conception of democracy and actively counteracts a more substantive conception of democracy, by confirming and legitimising political discourse that seeks to exclude broad participation in development-related decision making. I describe an alternative approach to take account of institutional problems in socio-economic rights-related judicial review that better accords with and affirms a broade...
The framework for constitutional democracy in South Africa assigns to the courts a pivotal role in ensuring effective protection and translation of the range of entrenched socio-economic rights into material entitlements. This has enabled the courts in some instances to exercise considerable authority that has significantly influenced policy to the extent that power relations between the judiciary and the political arms of government have been threatened. Proponents of the doctrine of the separation of powers have expressed concerns, claiming that the meddling of the courts in the domain of policy making is politically incorrect. Consequently, the judicial enforcement of socio-economic rights has increasingly suffered setbacks, which to a large extent have retarded the constitutional vision of social transformation. Thus, in spite of South Africa’s acclaimed global leadership in the enforcement of socio-economic rights, little has actually been accomplished in terms of improving the livelihood for victims of socio-economic deprivation. Considering that the enforcement of socio-economic rights is context-specific, I question the rationale for avoiding a ‘jurisprudence of exasperation’, which demonstrates greater potential to produce transformative outcomes than the preferred ‘jurisprudence of accountability’ which has shown little transformative effect. Just as the realisation of socio-economic rights through political strategies amounts to material entitlement, I argue that the result of positive adjudication should equally amount to entitlement to the same material things promised by the rights in question. I conclude with the suggestion that the judicial enforcement of socio-economic rights should be seen as a complementary strategy to the political objective of social transformation, rather than as an oppositional force to the proper functioning of government.
Constitutional Courts of South Africa and Zimbabwe: A Contextual Analysis
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This paper is a contextual analysis of the Constitutional Courts of South Africa and Zimbabwe. Both Courts are founded on almost identical constitutional provisions, but have proceeded on markedly different jurisprudential trajectories. Whilst the South African Court is celebrated for delivering on the “promise” of judicial review, the Zimbabwean Court is generally viewed as a captured institution, subject to the whims of the executive. This understanding of courts as a binary between those enabling of and those constraining against executive and legislative power risks generalizing and falsely homogenizing the process by which courts claim and exercise power. It also fails to account for the reasons why courts, even those in authoritarian regimes, remain productive sites of human rights enforcement. This has the adverse effect of unduly crediting written law as the sole source of judicial power without accounting for contextual influences which enable or constrain the exercise of that power. Focusing on constitutional interpretation… fails to question how courts achieve the power, often in direct contradiction to a legislative majority or a popularly elected executive, to decide on issues of fundamental social importance. The doctrinal response is, of course, to point to the sections of the Constitution which explicitly grant the Court the power of judicial review, or failing which to refer to case law in which the power was assumed. This response, however, fails in the face of a history in which courts, even when explicitly granted powers of judicial review, have either been ‘executive-minded’ in their deference to the executive or just failed to exercise this authority.
Principle and Pragmatism on the Constitutional Court of South Africa
Icon-international Journal of Constitutional Law, 2009
Though lacking in public support, the Constitutional Court of South Africa (CCSA) today finds itself in a position of relative institutional security. At the same time, it has built up an enviable reputation among constitutional courts in new democracies for the quality of its jurisprudence, or legitimacy in the legal sense. This essay attempts to explain how this situation has come about by developing a theoretical account of the relationship between legal legitimacy, public support and institutional security, and then testing this account against the CCSA's record from 1995 to 2006. The defining feature of South African politics over this period has been its domination by a single political party. In this context, the theoretical account suggests, a constitutional court in a new democracy should largely be able to ignore public opinion in favor of its relationship with the political branches. In particular, one would expect such a court to trade off gains in legal legitimacy, achieved by principled decision making, against the likely impact of its decisions on its institutional security. An examination of the CCSA's record reveals that it has indeed acted strategically in this way, both in politically controversial cases, where it has used its considerable forensic and rhetorical skills to avoid confrontation with the political branches, and in more routine cases, where it has developed a number of context-sensitive review standards.
S. Afr. J. on Hum. Rts., 2004
This article reviews the emergent socio-economic jurisprudence of the South African Constitutional Court, focusing particularly on the seminal case of Grootboom. The first part disputes a particularly prevalent characterisation of the Court's approachnamely, that it constitutes an administrative law approach the adjudication of socioeconomic rights -and suggests, instead, that Grootboom, TAC and Khosa might be more profitably read as ensuring that vulnerable sectors of society are not neglected, or overlooked. Grootboom is also, it is argued, best understood as establishing a relationship of collaboration between the state and judiciary, in terms of which each branch of government brings its particular skills to bear on the problem of remedying such omissions. Thereafter, the most prevalent criticism of the Court's approach -its failure to embrace the minimum core -is considered. Despite the apparent advantages of the minimum core, and the fact that not all of the Court's objections are entirely convincing, the article concludes that the Court is indeed correct to be wary of this idea. In particular, it emphasises that discussions of the minimum core tend to overlook the complicated relationship between core and non-core needs, and the difficulty of balancing these against one another. Finally, it is argued that, although the approach taken by the Court is, by and large, sound, supervisory jurisdiction is, in certain cases, essential if that approach is to achieve its full effect, and should be regarded as furthering the collaborative approach that Grootboom establishes.