17/02/2006
George Bizos

We have had two epic battles between legislatures and judiciaries.  Albeit of lesser proportion, are we about to have another?

At the turn of the 19th Century, President Kruger of the Transvaal Republic sacked his Chief Justice Kotzé for suggesting that he retained the right of judicial review of legislation of the Volksraad.   Kruger later described the right to test the validity of legislation against the constitution as ‘a principle of the devil.’  .

The other battle began with the invalidation of an Act removing coloured voters from political life in Harris v Minister of the Interior.   In a spate of one-upmanship, the parliament created a ‘Hight Court of Parliament’ to review the decision, which was later depicted by the existing judiciary as ‘parliament in disguise’.  The objective was achieved by enlarging the Senate and packing the Court of Appeal despite the dissenting voice of Schreiner JA.

I am not suggesting that we are witnessing a similar level of animosity today, but it may well be that some recently proposed constitutional amendments are the first step down that path.

I want to read a well-known passage, which I subscribe to, that states how spheres of government should co-exist in a modern constitutional democracy.  It says:

All spheres of government and all organs of state within each sphere must
– … respect the constitutional status, institutions, powers and functions of government in the other spheres;
– not assume any power or function except those conferred on them in terms of the Constitution;
– exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere; and
– co-operate with one another in mutual trust and good faith by
– fostering good relations; assisting and supporting one another;
– informing one another of, and consulting one another on, matters of common interest; [and]
– co-ordinating their actions and legislation with one another…

This is no aspirational statement applicable to a non-existent utopia.  It is a direct extract from Section 41 of our Constitution, and I use it today to highlight how far our spheres of government have strayed, in only ten years, from the original vision for the new South Africa.

It is in this context that I would like to focus my talk on judicial independence and the rule of law and the potential effect of portions of the recent legislative Bill proposing to amend the Constitution.  Previous amendments have been of a non-contentious nature, these are not so.

It seems that a turf-war is currently underway between the legislature and the judiciary.  One in which the judiciary is hampered by an inability to defend itself, other than through decisions of the court, in properly constituted proceedings.  Because of this impediment, the legal profession, NGOs, civil society and the media should speak out in its place against at least two proposed amendments to the Constitution.

I refer to Clause 1 and 7(b) of the Constitution Fourteenth Amendment Bill, 2005.

The persons responsible for the Bill have either ignored or overlooked the provisions of section 16(6) of Schedule 6 to the Constitution, headed “Transitional Arrangements”, which reads:

(a) As soon as is practical after the new Constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a).

There has been no consultation with the Judicial Service Commission in relation to the constitutional amendments I speak of today.  The amendments, which I will outline later, clearly relate to the structure, composition and, particularly, the functioning and jurisdiction of the courts.
I would like to first turn to Clause 1;

Clause 1 would amend the Constitution by the addition of two new subsections to section 165.  They state that:

(6) The Chief Justice is the head of the judicial authority and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts, other than the adjudication of any matter before a court of law.
(7) The Cabinet member responsible for the administration of justice exercises authority over the administration and budget of all courts.

In essence, the effect of this Clause is to transfer the administrative and budgeting powers of the judiciary to the executive.  Leaving the judiciary with its judicial function as well as the power over the said ‘norms and standards’.

Analysis of this clause uncovers numerous difficulties, some of a practical nature, others, in blatant disregard for foundational constitutional principles.

Let me begin with a challenge to you all. Can you tell me, what exactly is being referred to by the term ‘judicial function’, if it does not include ‘the adjudication of matters before a court of law’ nor the administration of the courts?  One might just as well say to your doctor, “I give you authority to make all of my medically related decisions, so long as it does not relate to my health or wellbeing.”

Leaving practical difficulties aside, I turn to Constitutional Principle VI, one of the ‘lights of the runway’,  which guided the Constitutional Assembly in drafting the Constitution.  It states:

There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.

The 1996 Constitution was passed by a majority of 86% of the members of the Constitutional Assembly.   In doing so, the members were careful to comply with each of the Principles, for fear that any departure from them could have prevented the certification of the new Constitution.  I am of the view that if the proposed amendment was contained in the original text, the Constitutional Court would not have certified it.

The force of that principle I have quoted was not washed away with the new Constitution… far from it.  It remains an important consideration, demonstrated not only by the reception of the travaux préparatoires in S v Makwanyane,  but also by a comment of Goldstone J during argument in the Certification case that

…a future Constitutional Court, sitting in ten to three hundred years’ time, would have to refer to the [Constitutional Principles].  They do not disappear.  They would be a primary source of interpretation.

Justices Chaskalson, Langa, Mahomed, Ackermann and Didcott, nor we who were counsel for the Constitutional Assembly, contradicted Justice Goldstone on that issue. Nor was counsel challenged when he suggested that the Constitutional Principles would be in deep freeze, to be used when needed.

The doctrine of separation of powers found in Constitutional Principle VI is threatened by Clause 1.  It would be difficult indeed to concoct a greater offence to that doctrine than a transfer of power from the judiciary, to the executive, at the behest of the legislature.

But there is no need to indulge further in Constitutional Principle VI, for it is entrenched in numerous provisions of the Constitution currently in force, which I turn to now.  A clearer statement, or greater protection of the Principle in the Constitution is not easy to imagine.

Section 173, mirrors Constitutional Principle VI exactly, with section 165 adding further clarity to the principle.  Though all subsections of section 165 are of relevance here, I will read only two parts of that section, two parts, which allow no interpretation that could exist in harmony with the proposed amendment.

Section 165(3) states that ‘no person or organ of state may interfere with the functioning of the courts’.  It does not say ‘judicial functions of the courts’.  It does not say ‘adjudication of a matter before a court of law’.  It says ‘functioning’.   A word deliberately used by the Constitutional Assembly, with a wide definition, which must include administration and budgeting for the courts.  To suggest that these responsibilities do not affect the courts’ functioning is preposterous.

Section 165(4) states that ‘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’.   This provision allows for legislation to be passed which assists and protects the courts.  I fail to see how taking certain powers from the judiciary has the effect of assisting or protecting the courts. It is clear from this section that even the slightest degree of incursion into judicial independence is unconstitutional and precisely the reverse of the responsibility assigned by it.

In addition, the Constitutional Court has identified, in De Lange v Smuts NO and Others,  as one of three conditions for judicial independence, that the court must have independence ‘with respect to matters of administration bearing directly on the exercise of its judicial function.’ Clause 1 breaches that condition by removing control over the general and financial aspects of administration of the courts.  Many functions that may be described as administrative bear directly on the exercise of judicial function, a clean severance of the two is not possible.  For example, administrative officials of the court have the power or responsibility over: 

-granting default judgments and taxing bills of costs;
-ensuring the efficacious despatch of judicial business in open court;
-the maintenance of a well resourced library;
-correspondence with the public;
-issuing the process of the court; and
-execution of the orders of the court, to name a few.

Members of the executive, and particularly, the Minister of Justice in an official capacity, are often involved in litigation.  Can you imagine the public confidence in the system if a party to a proceeding was in control of the administrative functions I have mentioned, as well as the budget of the very court in which the hearing was taking place?  I think opposing litigants would be entitled to feel seriously concerned.

An argument might be made that judges are judges, not administrators, nor accountants.  It is with this in mind that I turn now to survey foreign approaches to the issue.  This survey highlights that despite this argument, the proposed system is unacceptable in view of international standards.

I will speak of the US and Australian approaches, before moving to the Canadian system, a country whose approach to many legal issues has been of strong persuasive value in our courts, considering the many similarities in our Constitutions.

In the United States, to preserve the principle of the separation of powers, the Administrative Office of the United States Courts is used for the administration of the courts.  The office is an agency within the judicial branch, the director of which is appointed by the Chief Justice in consultation with a judicial conference, made up of judges from across the country.

With regard to the courts budget, Congress permits the judiciary to set and implement its own.  The Administrative Office consults with the Judicial Conference to draft a budget, which is reviewed by the Conference and then submitted to Congress in the President’s budget.  By law, the President must include the judiciary’s budget without change.  Congress then holds hearings to determine the justification behind the proposed expenditures.  Once approved, the Administrative Office disperses the allotments to each court, which can utilise them at will so long as their use is consistent with Conference policy.

In Australia, the High Court and the Federal Court are administered by the Justices collectively (in the case of the High Court) or by the Chief Justice (in each federal court created by Parliament).  Each court must maintain proper financial accounts and provide estimates of receipts and expenditure to the Attorney-General so as to assist in the calculation of the future funding for the court.

At a State level, similar provisions apply in respect of the Supreme Court of Queensland.  In South Australia, under the Courts Administration Act 1993 (SA), the responsibility for the provision of administrative facilities and services to the courts is conferred on a body known as the State Courts Administration Council.  The Council is composed entirely of members of the judiciary, and is independent of control by the executive government.

The idea of an independent body responsible for administration of the courts is also taken up in Canada, which I will turn to now.

In 2002, the administration of the Canadian federal court system was reorganised by the Courts Administration Service Act.   Among the purposes of that act were to

(b) enhance judicial independence by placing administrative services at arm’s length from the Government of Canada and by affirming the roles of chief justices and judges in the management of the courts; and
(c) enhance accountability for the use of public money in support of court administration while safeguarding the independence of the judiciary.

In pursuit of that goal, a new body was established called the Courts Administration Service,  which took control of management and administration of the Federal Courts, including budget preparation.

Both the Minister and the Chief Justices have input into the running of the service, though neither control it.  The Chief Administrator of the Service is appointed by the Governor in Council, after the Minister of Justice has consulted with the Chief Justices of each of the Federal Courts.  The same process is followed regarding the termination of an appointment.   Further, in pursuing its duties and functions, the Chief Administrator must consult with the Chief Justices of each court; this includes the duty of preparing budget submission for the requirements of the courts and for the related needs of the Service.

In my opinion, whether compared against constitutional principles or with foreign approaches, Clause 1 is unacceptable in its current form.

I now move to Clause 7(b) of the amendment bill.  This amendment must be removed in its entirety.  It has no place in a modern constitutional democracy.

It states that the following subsection will be added to section 172 of the Constitution:

(3) Despite any other provision of this Constitution, no court may hear a matter dealing with the suspension of, or make an order suspending, the commencement of an Act of Parliament or a provincial Act.

Analysis of this amendment shows it to be unnecessary and in fact designed to give rise to injustice.  Let me outline some of the circumstances in which the law currently allows for the courts to suspend an Act of Parliament.

First, sections 80 and 122 of the Constitution allow members of the National Assembly or provincial legislature to apply to the Constitutional Court to declare an Act unconstitutional.  Those sections specifically allow the Constitutional Court to suspend the legislation, until the application is decided only if: it is in the interests of justice and the application has a reasonable chance of success.  In other words, only if the Act is prima facie unconstitutional.

Second, suspension might be sought as a form of temporary relief pending the outcome of other litigation concerning the constitutionality of an Act.  The Constitutional Court has had reason to consider under what circumstances this might arise, and in what is known as the First Crossing the Floor Judgement,  said that it could only occur when it was -

absolutely necessary to avoid likely irreparable harm and then only in the least intrusive manner possible with due regard to the interests of others who might be affected by the impugned legislation.

Thus, the result of the amendment would be to bar the Constitutional Court from suspending an Act of legislation, only when –

- the interests of justice require such a suspension;
- not granting the suspension is likely to cause irreparable harm to a party seeking relief;
- there is no other less intrusive way of avoiding such harm; and
- the legislation is prima facie unconstitutional.

This sort of ouster clause is an affront to the role of the courts.  Not only does it operate only when it will cause injustice, but there is no good reason for it to exist.

In South Africa, ouster clauses have long been regarded with suspicion.  Kotzé, who as I mentioned earlier was painted as doing the devil’s work, continued to stand up for the importance of judicial review decades after his stoush with Kruger.  In Union Government v Fakir,  he said -

I should like, without attempting to dictate to the Legislature, to point out the great danger involved in departing from the well-known rule of constitutional law in all civilised countries – namely, that the courts of law alone are entrusted with deciding on the rights and duties of all persons who are within the protection of the courts.

This sentiment was applied more recently in De Lille and Another v Speaker of the National Assembly,  where Hlophe JP added –

At common law there is a presumption against ouster clauses which are considered to constitute an improper infringement upon the role of the Courts.

The operation of sections 80 and 122 of the Constitution have not been found to be cumbersome or the cause of any injustice themselves.  It should be noted that though it is not explicit, the amendment may have the effect of repealing these two sections.

The right of interim relief of this sort is aimed purely at preserving the status quo on a temporary basis, pending the decision of the Court.  It does not affect the outcome of the final decision and aims only to prevent irreparable harm.  It should not be trifled with.

I should like to return to the ‘guiding lights’  for a moment, in particular, Constitutional Principle VII, which states –

“The judiciary shall be … independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.”

The independence of the judiciary, and separation of powers can both be termed as basic features of the Constitution.  The role of the Constitutional Court as the Constitution’s guardian is a basic tenet of those doctrines.

The late Mohammed DP (as he then was) stated in a case of the Constitutional Court that

Radically and fundamentally restructuring and reorganising the fundamental premises of the Constitution, might not qualify as an ‘amendment’ at all.

In saying that, he was developing a concept which he had discussed with Sachs J during argument in the Certification Case along the following lines -

Justice Mahomed: Your ultimate defence against an abuse would be in the learning that says “You cannot amend the Constitution in a way which destroys its basic features”.

Justice Sachs: Are you saying that there are certain fundamental features that cannot be changed even with special majorities, since that would not be amending the Constitution?

Justice Mahomed: Yes, not amending, but tearing it up.

To remove completely an important aspect of the guardian’s power is a clear incursion into the fundamental premises of the separation of powers and independence of the judiciary, and may amount to an improper attempt to amend a fundamental feature of the Constitution.

Again, I should like to pay ‘respect to the opinions of mankind’,  by concluding with a comparative approach to this issue. Interim relief of this type is recognised throughout the international community as an important principle.

I find no better example than a decision of the European Court of Justice.  A judgment of that Court  found that, in member countries of the EEC, national courts have the power to grant interim relief in the form of suspension of national laws potentially conflicting with Community law, pending the outcome of proceedings regarding the validity of the impugned national legislation.

This principle was found to be so important that:

- any national legislation in conflict with the power to grant such interim relief was itself invalid;
- it was deemed to be a ‘necessary and obvious corollary’ of any system of reviewability of national legislation; and
- there was no suggestion that its effect was anything other than a strengthening of the separation of powers, which is well respected by EEC member countries.

An amendment such as clause 7(b) has no place in any foreign constitutional democracy, and we should not entertain it here.

Do not let us forget where we come from.  An independent judiciary is foreshadowed in the Africans’ Claims adopted by the 1943 ANC Conference held in Bloemfontein, the Freedom Charter adopted at Kliptown in 1955 and the Harare Declaration of the OAU in 1989.  The ANC negotiators of the Codesa piloted the drafting of the Constitutional Principles, including Principles VI and VII.

To quote once again from Mahomed AJ, on this occasion, from his time on the Namibia High Court -

The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed.  It is a ‘mirror reflecting the national soul’, the identification of the ideals and aspirations of a nation…”

Constitutional amendments are not something to be toyed with.  The perception has been, and, if persisted on, may be entrenched, that this Bill interferes with the independence of the judiciary.  The proud tradition of the majority party, and some of the other parties, should not be sullied unnecessarily.  Fundamental conflicts between the legislature and judiciary should be avoided as a luxury we do not need and cannot afford.

Today I have touched on two issues currently facing the justice sector, there are many others which I have not.  I am honoured to be involved in the launch of the important review of the sector by AfriMAP and the Open Society Foundation for South Africa, which has given proper consideration to these other issues.  I commend it as a catalyst for debate and educational tool for the legal community, government, media and general public alike.

Before concluding, a short digression.  I question the motivation behind other proposed amendments to the Constitution, namely the change to the appointment procedures for Judges President and Deputy Judges President of the High Court.  It proposes that the appointment process should mirror that for the appointment of Constitutional Court judges, however, that will require the selection of 30-40 nominees.  The Judicial Services Commission has performed the job of providing a single nomination for these positions in a harmonious relationship with the President.  So what is the reason for the change?

Also, the Justice Bill has been delayed for too long. It should urgently be considered and enacted by parliament.  Particularly in order to do away with the anachronisms of the Bantustan courts and in relation to the new Provincial divisions.  These provisions have been fully discussed and considered.

Not so the proposed constitutional amendments I have spoken of today, we are surprised that the secretary of the Parliamentary Committee on Justice has informed us that public hearings are not likely to be held by the committee.  This would be most unfortunate, particularly as the notice declaring the turf-war was published at a time when other things, such as our annual holidays, were of greater interest than reading government gazettes. (Though I might add the Legal Resources Centre was, as ever, vigilant and punctually submitted a comment outlining the concerns I have expressed today).  In terms of section 74(4) and (7) of the Constitution, a meaningful opportunity must be given to the public and parliament to consider constitutional amendments. We are however, encouraged by President Mbeki’s statement during his State of Nation Address to Parliament, that the process in relation to this legislation is continuing.

Nobody likes to lose court cases, the government included.  But to our credit, Presidents Mandela and Mbeki and other senior government leaders have expressly supported decisions of the courts, despite disappointment at not succeeding. The reputation of our Constitutional Court is above reproach, what purpose do these amendments serve other than to create the perception of an attack on judicial independence?

Decisions such as the two amendments I have spoken of today should not be made in caucus rooms, but each parliamentarian must be allowed to exercise his conscience.  The majority of parliamentarians have suffered in their struggle against tyranny.  Legislation passed during that struggle, which abrogated the rule of law and ousted the jurisdiction of the court, was force-fed to us whilst being told that we must trust the minister and the government.

So, let me end with a quotation from Thucydides:

But, when men … are reckless of the future, and do not hesitate to annul those common laws of humanity to which every individual trusts for his own hope of deliverance should he ever be overtaken by calamity; they forget that in their own hour of need they will look for them in vain.

Let us hope that our elected leaders will not be reckless of the future.  Let us hope that our spheres of government be guided by the words of section 41 of our Constitution and that they recognise that power struggles are only ever counter-productive for the people they serve and, in turn, themselves.

If we allow these amendments to be passed without challenge, it may become a destructive habit.  The judiciary must fight with one hand behind its back, so I call on the legal profession and civil society, to speak up on its behalf.  Further, I call for arrangements to be made for representations on the proposed amendments to be made to Parliament.

I wish to place on record the assistance that I have received, in preparation of this speech, from my colleagues in the Constitutional Litigation Unit, Alan Dodson and Joshua Masters.