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Calls by the ruling ANC for judges with a progressive philosophy who advance judicial activism, to give effect to social transformation, are dangerously misguided and will politicise the judiciary, expanding government power at the expense of individual rights. That’s the conclusion of Martin van Staden, legal researcher at the Free Market Foundation, who says the ANC’s push for judicial activism must be resisted at all costs. Van Staden says the court’s job is to adhere to the law and the Constitution, both of which are thrashed out and enacted by politicians elected by the populace. What makes his red flag waving particularly pertinent is that should the ANC manage to break down South Africa’s tradition of judicial independence and impartiality, it will effectively create a rule of tyranny. I need hardly repeat the litany of State-Captured institutions that is, with the exception of the judiciary, now virtually complete. The call for judges to creatively apply progressive thinking in their rulings might seem innocent, but it’s the thin edge of the wedge when it fits in with a particular political agenda. One only has to cite the ugly political grandstanding of the irascible Judge John Hlophe in 2008 after he approached two members of the Constitutional Court, trying to influence them on four pending sensitive judgements about Jacob Zuma. The subject matter was no less that the lawfulness of search and seizures at Zuma’s home in relation to corruption associated with the arms deal. All 11 justices of the Constitutional Court subsequently complained to the Judicial Services Commission. Luckily the push back was total, though Hlope pulled the race card, plunging the entire judiciary into an unseemly and chaotic public debate. The findings of the re-constituted JSC Tribunal are due any day now, with Zuma’s impeachment technically possible. – Chris Bateman
By Martin van Staden*
The ruling party’s intention to politicise the judiciary will surely lead to a diminishment of individual rights and an expansion of government power and corruption. Judges should follow the letter of the Constitution – not the ideological preferences of whoever controls government.
Nineteenth century New York Supreme Court justice, Elisha Hurlbut, wrote that “the law is merely declaratory as to all natural rights. It does not create, but enforces them; the right depending not upon the law, but the law rather upon the right itself”.
The office that does the ‘declaring’ on behalf of the law, is the judge. The judge applies the law, as it exists, to disputes. While a judge is expected to resolve disputes, their most important duty is to show how the law applies to the situation at hand. The separation of powers dictates that a judge should not engage in creating new law, but merely ‘declare’ what the law already says. Law-making is reserved for Parliament.
The ruling party, however, recently declared that it wishes to ensure that “judges with a progressive philosophy and who advance judicial activism to give effect to social transformation [be] appointed to the Bench”.
‘Judicial activism’ means that the political considerations of the judge (the “progressive”) are breathed into the law. Judicial appointments will become part of cadre deployment where only those who have shown loyalty to the ideology will be considered fit for the job.
In the infamous 2013 case of Agri SA v Minister for Minerals and Energy, the Chief Justice and the majority of the Constitutional Court came close to effectively amending the property rights provision of the Constitution by – erroneously – opining that when government calls itself the ‘custodian’ of the property it expropriates, rather than the ‘owner’, then no compensation is payable as required by the Constitution. In other words, by using synonyms or clever wording, government can circumvent the Constitution with court approval. This issue was cloaked in language to ensure equitable access to natural resources, which is why it was considered “progressive.” Fortunately, it was held that the facts of each case will prevail over the court’s general statement, and two justices did dissent from the Chief Justice’s opinion.
Judicial activism is, clearly, dangerous.
South Africa’s judiciary, traditionally, has been non-partisan. During the previous regime, individualists such as Oliver Schreiner made it to the highest court in the country – the Appellate Division – despite their disapproval of Apartheid. The courts’ strict adherence to the principles of law often frustrated government tyranny, such as when the Appellate Division temporarily stopped Parliament from removing coloured voters from the Cape voters’ roll in the early 1950s. The bench was not a “National Party” bench, but rather a bench of non-partisan judges.
Contrast this with the situation in the United States of America, where it is not uncommon to refer to justices on the Supreme Court as “Democrats” or “Republicans”, depending on who appointed them and what they believe politically. Democrats and Republicans who run for President have made it a central part of their platforms to only appoint judges with certain political beliefs that align either with conservatism or progressivism.
The appointment of new judges to America’s highest court has become such an intensely political issue that the Supreme Court at times was rendered redundant. The former president, Barack Obama, could not make an appointment to the bench because the Republican-controlled Senate held up the process. The court was forced to hear cases with an even bench, meaning no ‘majority judgment’ could be delivered and thus the lower courts’ judgments remained in force. South Africa will do well to avoid making the judiciary the third house of Parliament.
Wanting to appoint only ‘progressive’ judges, more likely than not, will lead to a significant expansion of government power at the expense of the rights of all South Africans. To the ruling party, progressive judicial activism will likely mean that the courts should allow government to bring about “radical economic transformation” by decree.
“The ANC is the government,” said one commenter in defence of the ruling party’s intention. But constitutional democracy places less emphasis on which political party governs at any particular time, and more emphasis on the values in the Constitution itself. Any argument in favour of giving government carte blanche is inevitably an argument against constitutionalism, as the nature of a constitution is to place limits on government power.
The independent and impartial judiciary is what kept Apartheid South Africa from becoming a totalitarian dictatorship. While the courts could not stop Apartheid, they succeeded in applying the principles of the rule of law which frustrated, delayed, and, at the very least, annoyed the National Party government. A non-partisan judiciary is a prerequisite for a free society where each individual and their rights are regarded as the basis for judgement.
- Martin van Staden is Legal Researcher at the Free Market Foundation and Academic Programs Director of Students For Liberty in Southern Africa.