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Published online by Cambridge University Press: 30 May 2017
The supremacy of the constitution and the rule of law are key features of the post-apartheid legal order in South Africa. For either to have any real value, however, it is necessary that they are interpreted and applied by an independent judiciary that is free from executive influence. This important task has fallen mainly on the Constitutional Court. It has recently been called upon to rule on the lawfulness of the conduct of both the president and the National Assembly and held that both had acted unlawfully and inconsistently with the constitution. In the author's view, this ruling signifies that the maturing court is fully aware of its own constitutional obligations and that, unlike its apartheid era predecessors that were hamstrung by the supremacy of Parliament, it possesses a mandate to check the abuse of power by other branches of government.
Principal lecturer in law, Department of Law, De Montfort University, Leicester.
1 Under the three previous constitutions (the South Africa Act 1909, the Republic of South Africa Constitution Act, No 32 of 1961 and the Republic of South Africa Constitution Act, No 110 of 1983), the majority of South Africans were denied the vote. Furthermore, none of those constitutions contained a bill of rights; see Mubangizi, J “Some reflections on two decades of human rights protection in South Africa: Lessons and challenges” (2014) 22 African Journal of International and Comparative Law 512 at 512CrossRefGoogle Scholar.
2 The Constitution came into force on 4 February 1997. See its preamble and the remarks of one of the former judges of the Constitutional Court: O'Regan, K “Cultivating a constitution: Challenges facing the Constitutional Court of South Africa” [2000] Dublin University Law Journal 1 Google Scholar.
3 The Constitution, sec 167(3)(a).
4 Id, sec 167(3)(b)(i) and (ii).
5 One of the Court's former judges has contended, however, that it is an “advantage” for the Court to be able to confine itself to constitutional issues. See Chaskalson, A “Judging human rights in South Africa” (1998) European Human Rights Law Review 181 at 184Google Scholar.
6 The Constitution, sec 167(3)(c).
7 It has been noted that the Court has exercised this “strong form of judicial review” frequently, “on average five times a year since 1994”; see O'Regan, K “Text matters: Some reflections on the forging of a new constitutional jurisprudence in South Africa” (2012) 75 Modern Law Review 1 at 1CrossRefGoogle Scholar.
8 The Constitution, sec 42(1)(a) and (b).
9 See Mubangizi “Some reflections”, above at note 1 at 516.
10 See S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
11 See Executive Council, Western Cape and Others v President of the Republic of South Africa and Others [1995] ZACC 8; (1995) 4 SA 877 (CC); 1995 (10) BCLR 1289 (CC).
12 See Corder, H “South Africa's transitional Constitution: Its design and implementation” (1996) Public Law 291 at 306Google Scholar.
13 [2016] ZACC 11.
14 Others include the Commissions for Human Rights, Gender Equality and Electoral Matters. The Constitution provides for these in secs 184, 187 and 190–91 respectively.
15 As declared by the title of chap 9 of the Constitution. It has been observed that the provisions relating to the “chapter nine institutions” were “spelt out in some detail in the Constitution”; see Corder “South Africa's transitional Constitution”, above at note 12 at 302. Although these remarks were made in relation to South Africa's interim or, as he prefers, “transitional” Constitution (the Constitution of the Republic of South Africa Act, 200 of 1993), they apply equally to the 1996 Constitution. South Africa's interim Constitution has been described as being “the bridge between apartheid and democracy”; see Chaskalson “Judging human rights”, above at note 5 at 181.
16 See Chaskalson, id at 183–84.
17 The Supreme Court has described these three powers as being “complementary”; see South African Broadcasting Corporation SOC Ltd and Others v Democratic Alliance and Others [2015] ZASCA 156, para 42.
18 See the Constitution, sec 182(2).
19 In South African Broadcasting Corporation SOC Ltd, above at note 17, the Supreme Court rejected the suggestion that the primary source of the Public Protector's powers was the act rather than the Constitution, since to hold otherwise “would have the effect of the tail wagging the dog” (para 43).
20 See the Public Protector Amendment Act, 113 of 1998.
21 Report no 25 of 2013/14 (19 March 2014).
22 By the time the Public Protector had concluded her investigation, R 215 million (approximately GBP 9.89 million) had been spent on the project and the total cost was forecast to be R 246 million (GBP 11.31 million); see id at 4.
23 For further detail, see id, para 11.1.1–11.1.4, set out in the judgment in Economic Freedom Fighters, para 10.
24 Under the Constitution, secs 42(3) and 55(2).
25 At the time of writing, the 400 member National Assembly is dominated by the party of government, the African National Congress, which has 249 seats. The Democratic Alliance and the Economic Freedom Fighters are the next largest parties with 89 and 25 seats respectively. The remaining 37 seats are divided between ten political parties, including the Inkatha Party with ten seats and the African People's Convention with a single seat.
26 While the “rule of law” is expressly referred to in sec 1 of the Constitution as one of South Africa's founding values, “separation of powers” is not mentioned. It has been contended, however, that the doctrine is implicit in the Constitution; see, for example, the remarks of Langa CJ in Glenister v President of the Republic of South Africa and Others [2008] ZACC 19, para 28. In the earlier case of In re: Certification of the Constitution of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC), the Court noted that there is “no universal model of separation of powers” and that “there is no separation that is absolute”; rather, “the scheme is always one of partial separation” (paras 108–09).
27 It is recognized, however, that “uncertainty over jurisdictional issues” was a matter that “plagued the Constitutional Court in its early years and helped to undermine its image”; see Berat, L “Constitutional Court profile: The Constitutional Court of South Africa and jurisdictional questions: In the interest of justice?” (2005) International Journal of Constitutional Law 39 at 74CrossRefGoogle Scholar.
28 See President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9, para 72.
29 Economic Freedom Fighters, para 32.
30 Id, para 20. For a judicial explanation of the nature of South Africa's “constitutional project”, see the remarks of Mahomed J in S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC), para 262.
31 See, for example, Lewis, CH “Reaching the pinnacle: Principles, policies and people for a single apex court in South Africa” (2005) 21 South African Journal on Human Rights 509 CrossRefGoogle Scholar; and Lewis, J “The Constitutional Court of South Africa” (2009) 125 Law Quarterly Review 440 Google Scholar.
32 [2006] ZACC 24, 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC), para 36. Cited in J Lewis, id at 456.
33 Economic Freedom Fighters, para 51. Given the role and functions of the Public Protector, in other legal jurisdictions the preferred nomenclature for the office tends to be “ombudsman” or “ombud”, as noted in South African Broadcasting Corporation SOC Ltd, above at note 17, para 2. See also Chaskalson “Judging human rights”, above at note 5 at 183. Before the 1996 Constitution, South Africa had an ombudsman in name as well as function; see the now repealed Ombudsman Act 118 of 1979.
34 See, for example, South African Broadcasting Corporation SOC Ltd, above at note 17, para 3.
35 Economic Freedom Fighters, para 52. The Public Protector was also described as being the “embodiment of a biblical David” taking on the Goliath of impropriety and corruption perpetrated by state officials, and as one of the “true crusaders and champions of anti-corruption and clean governance”: ibid.
36 For, as Mogoeng CJ pointed out, “if compliance with remedial action were optional, then very few culprits, if any at all, would allow it to have any effect”; see Economic Freedom Fighters, para 56. In a similar vein, the Supreme Court had previously remarked that it was “naïve to assume that organs of State and public officials, found by the Public Protector to have been guilty of corruption and misfeasance in public office, will meekly accept her findings and implement her remedial measures”; see South African Broadcasting Corporation SOC Ltd, above at note 17, para 44.
37 Economic Freedom Fighters, para 64.
38 Id, para 71.
39 Id, para 75.
40 Id, para 77.
41 Id, para 14.
42 Id, para 83.
43 See the Constitution, sec 181(3).
44 Economic Freedom Fighters, para 83. In a leading English case, M v Home Office [1994] 1 AC 377, a unanimous House of Lords reached a similar conclusion when it held that, although the home secretary had acted on incorrect legal advice when failing to comply with a court order, this did not absolve him from being found in contempt of court while acting in his official capacity. As Lord Templeman observed (at 395), “the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War”.
45 Economic Freedom Fighters, para 35.
46 In the past, the Court has been criticized for the often lengthy delays between hearing a case and handing down its judgment, even in relation to urgent matters; see Lewis “The Constitutional Court”, above at note 31 at 465–66. On this occasion, however, the gap between the hearing and judgment dates (9 February 2016 – 31 March 2016) was relatively modest and certainly a long way below the annual averages identified by Lewis in the period 2005–08 (177, 142, 167 and 159 days respectively).
47 See [2008] ZACC 19, para 33.
48 Economic Freedom Fighters, para 1.
49 Id, para 22. It has been argued that the Court's jurisprudence sometimes betrays an “atavistic sentimentality”, in that judgments contain phrases designed to accord prominence to the values of dignity, equality and freedom as set out in the preamble and sec 1 of the Constitution; see Lewis “The Constitutional Court”, above at note 31 at 442. While the evidence that Lewis adduces would seem to support the claim, on this occasion however it might be argued that at worst the phrases used merely signify a propensity to rhetorical flourishes rather than something more misguided.
50 Economic Freedom Fighters, para 22.
51 See, in particular, sec 55(2)(a) and (2)(b)(i).
52 Economic Freedom Fighters, para 22.
53 It has been suggested that the Court has a “habit” of making such statements; see Lewis “The Constitutional Court”, above at note 31 at 442.
54 In the judgment of the Court, receipt of the Public Protector's report by the National Assembly “effectively operationalised the House's obligations in terms of sections 42(3) and 55(2) of the Constitution”; see Economic Freedom Fighters, para 44.
55 Id, para 93.
56 Id, para 83.
57 Id, para 93.
58 This relationship is sometimes expressed in terms of “comity”. Thus, in Economic Freedom Fighters itself, Mogoeng CJ spoke (id, para 19) of it being “necessary to preserve the comity between the judicial branch and the executive and legislative branches of government”.
59 This followed the National Assembly's establishment of two ad hoc committees of its members, both of which produced reports exonerating the president from liability for the improvements to his private residence.
60 Economic Freedom Fighters, para 94.
61 Id, para 99.
62 The day after the Court handed down its judgment.
63 The quotes in this summary of President Zuma's broadcast are taken from an online report on the BBC News website; see “South Africa's Jacob Zuma ‘sorry’ over Nkandla scandal”, available at: <http://www.bbc.co.uk/news/world-africa-35943941> (last accessed 6 April 2017).
64 The same high threshold also applies in respect of a National Assembly resolution to remove the Public Protector from office; see the Constitution, sec 194(2)(a).
65 As explained in note 25 above.
66 See “South Africa's Jacob Zuma ‘sorry’”, above at note 63.
67 Since Economic Freedom Fighters was decided, the High Court in Pretoria has held that the decision by the national director of public prosecutions not to prosecute Jacob Zuma in respect of corruption charges in 2009 (shortly before he became president) was irrational; see Democratic Alliance v Acting National Director of Public Prosecutions and Others, case no 19577/2009, 29 April 2016. The charges, which relate to government arms deals, may well be reinstated if there is no appeal against the High Court's ruling.
68 See the Constitution, sec 88(2).
69 The National Assembly is elected for a term of five years; see id, sec 49(1).
70 Id, sec 86(1) provides for the National Assembly to elect a president from among its members.
71 “Nkandla final report in Parliament at 2pm” (13 November 2014) eNews Channel Africa, available at: <http://www.enca.com/south-africa/catch-it-live-nkandla-final-report-parliament> (last accessed 10 May 2017).
72 [2015] ZASCA 156.
73 Id, para 47.
74 Ibid.
75 Id, para 52.
76 See Democratic Alliance v South African Broadcasting Corporation Ltd and Others (2015) (1) SA 551 (WCC).
77 As Mogoeng CJ pointed out in Economic Freedom Fighters (para 66), “the language, context and purpose of sections 181 and 182 of the Constitution give reliable pointers to the legal status or effect of the Public Protector's power to take remedial action”. It has been noted that, whereas the mode of constitutional interpretation in South Africa was literal and textual before 1993, since then it has been contextual and purposive; see Matemba, R “Judicial activism: Usurpation of Parliament's and executive's legislative functions, or a quest for justice and social transformation” (2011) 13 European Journal of Law Reform 277 at 289Google Scholar.
78 Gouriet v Union of Post Office Workers [1977] 1 All ER 696 at 718. Lord Denning was in fact quoting the words of Thomas Fuller uttered more than 300 years earlier. The then Master of the Rolls had cause to rely upon them in a case concerning a trade union boycott of postal communications between the UK and South Africa that raised the issue of whether the Attorney General had been entitled to refuse to consent to a relator action.
79 See Hailsham, Lord The Dilemma of Democracy: Diagnosis and Prescription (1978, Collins) at 126Google Scholar.
80 Writing in 2005, Berat contended that the ANC “rules a de facto one-party state with some democratic features”; see Berat “Constitutional court profile”, above at note 27 at 75. The decade that has followed does not provide any meaningful evidence to contradict this view.
81 [2008] ZAKZHC 71; [2009] 1 All SA 54 (N).
82 See Klaaren, J and Roux, T “The Nicholson judgment: An exercise on law and politics” [2010] Journal of African Law 143 at 144CrossRefGoogle Scholar.
83 It has previously been noted that there is a perception in South Africa that the chapter nine institutions are “toothless watchdogs”; see Mubangizi “Some reflections”, above at note 1 at 522.
84 In Sachs v Minister of Justice [1934] AD 11, Stratford CJ explained (at 37) that the relationship between the legislature and the courts was such that “Parliament may make any encroachment it chooses upon the life, liberty or property of any individuals subject to its sway … and it is the function of the courts of law to enforce its will”. The quote is referred to by O'Regan, K in “Breaking ground: Some thoughts on the seismic shift in our administrative law” (2004) 121 South African Law Journal 424 at 424Google Scholar and by A Chaskalson in his address to the Cape Law Society “The rule of law: The importance of independent courts and legal professions” (9 November 2012), available at: <http://www.constitutionalcourt.org.za/site/judges/justicearthurchaskalson/20121113093201600.pdf> (last accessed 6 April 2017).
85 The “main pillars of apartheid” were the Natives Land Act No 27 of 1913, the Group Areas Act No 36 of 1966, the Population Registration Act No 30 of 1950 and the Bantu Education Act No 47 of 1953; see Berat “Constitutional Court profile”, above at note 27 at 41.
86 For some, repressive and discriminatory laws may still be said to be compliant with the rule of law provided that they have been enacted following the correct procedures and that those who apply them act within the scope of their powers. See, for example, Raz, J “The rule of law and its virtue” in Raz, J The Authority of Law: Essays on Law and Morality (1979, Oxford University Press) 210 at 211 and 221CrossRefGoogle Scholar. For others, however, adherence to the rule of law embraces the substantive as well as the formal, in particular the protection of human rights; see, for example, Bingham, T The Rule of Law (2010, Allen Lane) at 66–67Google Scholar and Steyn, J “Democracy, the rule of law and the role of judges” [2006] European Human Rights Law Review 243 at 245Google Scholar.
87 See Kentridge, S “Parliamentary supremacy and the judiciary under a Bill of Rights: Some lessons from the Commonwealth” (1997) Public Law 96 at 105Google Scholar.
