The list of clashes between the country’s executive and judiciary is slowly starting to look like an ancient Roman scroll… And it’s growing. The latest – the unlawful release of Sudanese President Omar Al-Bashir from South Africa’s shores, not because of the country’s tie to the International Criminal Court, but rather because the judiciary had ordered for him to be detained until his transfer to the Hague. In this article Chris Pieters argues that these actions don’t constitute judicial interference with the executive but more worryingly – South Africans should take note of the judiciary concerns in defence of their constitutional mandate. – Stuart Lowman
by *Chris Pieters
In the last while tensions between the Executive, the Legislature and the Judiciary have become painfully apparent. The focus of these tensions have been recent statements, reckless in nature, by some members of the Executive and political functionaries. These tensions have reached a critical point with the Chief Justice appearing with the heads of courts and issuing a statement in which they affirm the judiciary’s commitment to our Constitution.
Pre Constitution
In 1951 the South African government, in an effort to cement its power, passed the Separate Representation of Voters Act [Separate Representation of Voters Act, Act No 46 of 1951].
South Africans would not stand for this and brought the matter before the courts. This process started in the Cape High Court and culminated in front of the Appellate Division, as it then was. In the case of Harris [Harris and Others v Minister of the Interior and Another 1952 (4) SA 769 (A)] the Appellate Division ruled that the Separate Representation of Voters Act was “invalid, null and void and of no legal force and effect”.
Government’s response was unequivocal – the court order was unacceptable, it would not be abided by; and steps would be taken to overturn it.
In 1952 Government introduced the High Court of Parliament Bill, according to which members of Parliament would constitute a High Court with the power to review and overturn decisions declaring an act of Parliament invalid.
The applicants from the Harris case challenged the validity of the High Court of Parliament. On 29 August the Cape Provincial Division ruled that the Act was invalid as not only had it altered the entrenched clauses of the Constitution, but had not been passed by a two-thirds majority in joint session. Government’s appeal was met by similar findings on 13 November before the Appellate Division. At that stage, the National Party did not have a two-thirds majority in the two houses of Parliament.
The Court ruled that the entrenched clauses in the South Africa Act implied that those protected by the clauses had the right to have any law affecting them tested for validity by a court (“ubi jus ibi remedium”). Parliament, could not remove this power from the courts of law, by renaming itself the High Court of Parliament.
The response of the government was to reorganise the Senate and pack it with National Party supporters. It also expanded the Appellate Division from five to eleven judges and made six new judicial appointments. Parliamentary supremacy made it possible to implement a major plank in the apartheid edifice.
In theory South Africa has the best constitution in the world but when it comes to implementation there’s a lot to be desired.
— Royal (@JusstNoza) July 6, 2015
Constitution
In 1994 South Africa transitioned from parliamentary supremacy to constitutional supremacy. The Constitution of South Africa [Constitution of the Republic of South Africa, Act 108 of 1996] provides that South Africa is founded upon the supremacy of the constitution and the rule of law [s 1(c)].
Section 2 provides that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.
Section 34 provides that everyone has the right to have their dispute fairly and publically heard by a court of law. The proviso is that the dispute can be resolved by an application of the law.
Section 165 makes provision for the Courts as follows:
- The judicial authority of the Republic is vested in the courts.
- The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
- No person or organ of state may interfere with the functioning of the courts.
- Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
- An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
- The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
Furthermore, the Inherent Powers of the Superior Courts has been recognised by section 173 which affords these Courts the “inherent power… to develop the common law, taking into account the interests of justice”. Had these provisions been in place in the 1950s, the National Party could never have implemented its programme.
Recent developments
Although the constitutional requirements are clear, there have been a number of cases in the last year where they have been flouted. On 27 November 2014, the Constitutional Court deleted provisions from the SAPS Act as they related to the National Head of the Hawks (“November Judgment”).
This was the culmination of four years of legislative and executive delay in regard to creating adequate legislation. In December 2014, contrary to the November Judgment, the Minister of Police unlawfully suspended the National Head of the Hawks.
On 23 January 2015 the Pretoria High Court declared the suspension unlawful and dismissed the Minister’s Application for Leave to Appeal, whilst confirming the HSF’s enforcement order, on 6 February 2015. The SCA agreed with the court a quo when it dismissed the matter on 7 May 2015.
And for South Africa with its utopian constitution to reject the ICC is a very very bad sign.
— Siyanda-Panda (@SiyandaWrites) June 17, 2015
On 15 June 2015 the Southern African Litigation Centre (“SALC”) brought an urgent application for the detention of President al-Bashir, pending his release to the International Criminal Court. He was to answer allegations of crimes against humanity and war crimes which resulted in the deaths of more than 200 000 people. The full bench of the Gauteng Provincial Division, consisting of the Judge President and two senior judges, ordered that al-Bashir be detained by the Government pending his transfer to The Hague.
Upon the Order being read out, counsel for the Government informed the Court that contrary to its present ruling and the ruling of the previous day, President al-Bashir had somehow left the country.
The facts, however, had been reported by the media earlier in the day – although fervently denied by counsel. Government’s resistance to court orders is nothing new. Whether it is Malan stating his disregard for the Court in Harris, or Gwede Mantashe stating his disregard for judicial decisions from time to time, or Ms Modise ironically calling upon the Constitutional Court to tell us once and for all what courts can do, it undermines democracy.
Moreover, it is entirely appropriate that the judiciary calls attention to the problem. Doing so does not constitute, as some claim, judicial interference with the executive. On the contrary: South Africans should take very careful note of the concerns of the Chief Justice and senior judges in their defence of their constitutional mandate.
* Chris Pieters is the legal researcher at the Helen Suzman Foundation and can be contacted at [email protected]. The article first appeared on the Helen Suzman Foundation website.
