Separation of powers: Have the courts crossed the line?

Introduction

My remarks today should not be seen as a response to any particular person or debate. They are rather my reflections on how our Constitution has apportioned public power and how the judiciary, in the last 21 years, has gone about tackling its constitutional chores. The conversation I propose to initiate may not always yield one correct answer. Yet, it is a conversation to be had because it is fundamental to the ongoing vitality of our democracy.

Our Constitution

I start, where I should, with the Constitution. Ours is a “never and never again” Constitution. At its inception, it had several purposes, but two were foremost. The one objective was to shut the door firmly on what Mr. Mandela called the “oppression of one by another”. The Constitution has and continues to afford us the opportunity to turn our backs firmly on a dim and painful past. The other prime objective is aspirational, and therefore transformative. Its hope is that there will be “justice, peace, work, bread, water and salt for all [and that for each] the body, the mind and the soul [will be] freed to fulfil themselves.”

We would live under the rule of law and a supreme Constitution. We specified that every law or conduct inconsistent with the Constitution was invalid. We jettisoned parliamentary sovereignty, under which Parliament was never wrong, in favour of supreme constitutionalism. Simply put, Parliament, the executive, the judiciary and all other organs of state, as well as all who live on our land are bound by and must submit to the authority of the Constitution. All arms of state, we laid down, must be responsive, accountable and transparent in their dealings with each other and with the public.

Beyond these founding provisions, which may be altered only by a super majority of 75%, we crafted a Bill of Rights with 35 entrenched fundamental rights and freedoms which may not be limited without justification. The catalogue of rights and freedoms is brave and creative. Most significantly, it imposes positive and negative duties on the state progressively to realise socio economic justice for all. Socio-economic and workplace rights were meant to be engines of reconstruction and development after the devastation of apartheid exclusion.

Separation of powers: definition and purpose

In the words of my former colleague at the Constitutional Court, the distinguished late Chief Justice Pius Langa, the objective of the separation of powers “is to secure the freedom of every citizen by seeking to avoid an excessive concentration of power, which can lead to abuse, in one person or body”.

Although it is fundamental to democratic legal systems around the world, the doctrine of separation of powers is not rigidly defined. As the Constitutional Court pointed out in the First Certification Judgment, “there is no universal model of separation of power … and in democratic systems of government … there is no separation that is absolute”.

In De Lange v Smuts, the Court observed that: “[There is] no doubt that over time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balance informed both by South Africa’s history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances, and on the other to avoid diffusing power so completely that government is unable to take timely measures in the public interest.”

The judiciary plays a specific role within this framework. Its duty is to independently exercise “proper restraint on the unilateral exercise of … authority by the other two branches of government”.

The general purpose of checks and balances is to make branches of government accountable to each other. Checks ensure that the different branches of government control one another internally, while balances serve as counterweights to the power possessed by the other branches.

Doctrine of separation of powers in the South African context

The doctrine of separation of powers does not appear by name in our Constitution. However, there is no doubt that it is accepted as a dominant organising principle of state power. In Bernstein v Bester, the Court held that legislation that sought to bring the judiciary under the control of parliament or the executive could be struck down under the doctrine of separation of powers, even if there was no express conflict between such legislation and the Constitution.

Not only has the Court affirmed the doctrine in making rulings that affect the executive and legislature, it has also stepped aside where the Constitution so requires. This is particularly true in polycentric matters where the Court has recognised the need to defer to Parliament. In Ferreira v Levin, the Court stated that it was not its role to approve or disapprove of political decisions, but rather to ensure that the implementation of political decisions was constitutionally compliant. And in United Democratic Movement v President of the Republic of South Africa (No 2), the Court ruled that the merits of the disputed legislation were outside its remit and that according to the separation of powers, its job was simply to determine whether or not the legislation complied with the Constitution.

Clearly, the Court has attempted to explain the separation of powers, abide by its precepts, and defer to the other branches of government when appropriate. Given the Court’s careful attention to this doctrine, why is the judiciary so consistently attacked? Given the importance of the separation of powers to both our constitutional arrangements and our jurisprudence, why are judges repeatedly accused of overstepping their boundaries?

The architecture of division of powers

The Constitution carefully tells us what judges may do. In them it vests the judicial authority of the Republic. It adds that “courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. In other words judges must display utmost fidelity to the Constitution and other law. It admonishes that “[n]o person or organ of state may interfere with the functioning of the courts” and directs organs of state to assist and protect courts to ensure their independence, impartiality, dignity, accessibility and effectiveness.

The Constitution creates a hierarchy of courts and has inducted a judicial system that is open to an appellate process from the bottom to the top of the structure. Thus our democracy embraces judicial fallibility. It allows the Constitutional Court exclusively to decide constitutional disputes; disputes between organs of state in the national or provincial spheres that concern their status, powers and functions; the constitutionality of any parliamentary or provincial Bill; the constitutionality of any amendment to the Constitution; that Parliament or the President has failed to fulfil a constitutional obligation; and to make the final decision whether an Act of Parliament or a provincial Act or conduct of the President is constitutional. And it must first confirm any order of invalidity made by other courts before that order has any force.

In the ultimate, judges are appointed by the executive but, once appointed, they must act independently. The executive has no power to remove the judges it has appointed from their office. This is because judges are appointed on a fixed non-renewable term and their conditions of employment may not be diminished or reduced. In this way, the Constitution achieves security of judicial tenure. Only a two-thirds majority of the National Assembly may impeach and remove a judge from office on pre-set and limited grounds.

Another feature is that judges have no power to implement their own orders, nor do they command independent resources. As it is often observed, judges have neither the sword nor the purse. The executive bears the duty to execute court orders. On the other hand, Parliament votes for and allocates resources to the judiciary. Another significant check and balance is that our judicial role is passive and reactive and almost never proactive. A judge may not chase after a dispute down the road and bring it before the court. A judge presides over a dispute brought to court by litigants and only when it has the appropriate power or jurisdiction to do so. Also important is that judges must obey laws made by the legislature at national, provincial and local levels, provided that they are consistent with the Constitution. Judges are not at liberty to ignore a valid law, because it is a legitimate expression of the democratic will which binds them.

On the other hand, the courts act as a check upon the exercise of executive and legislative power. They test laws for constitutional compliance. The Constitution compels courts to declare invalid any law or conduct that is inconsistent with the Constitution. In another provision, it requires judges to exercise judicial review of executive and administrative decisions. In short, the Constitution has installed courts to be the ultimate referees on whether the Constitution or any other law has been breached. Judges are required to enforce fundamental rights and freedoms, and to develop the common law and customary law to the extent that they may be deficient.

As we have seen, separation of powers and provisions intended to be checks and balances do not mean that the three branches of government leave each other untouched. The judiciary is tasked with overseeing the compliance of the law by all branches of the state, its organs and all inhabitants of the Republic. The judiciary does not descend into the arena on a whim, but on a clear and dutiful mandate by the Constitution. When it does, the judiciary must not unduly trespass the terrain of other arms of the state. However, when the Constitution requires that the judiciary decide a particular controversy, that can never amount to overreaching. If it is trespass at all, it is one that the Constitution itself allows.

Again, checks and balances ensure that all branches of government are interdependent, and that no single branch may act unilaterally. For example, the President is elected by Parliament and sworn in by the Chief Justice. In other words, the head of the executive is elected by the legislature and sworn in by the judiciary. The judiciary itself is appointed by the executive (acting upon the advice of the Judicial Services Commission). And the legislature enacts laws to which the President must assent, and which are subsequently interpreted by the judiciary and whose orders must be enforced by the executive. The branches of government are not in competition with one another. Rather, they are symbiotic. They are part of a beautiful mosaic which will work only if we bring all our public goodness to the fore.

Have the courts crossed the line?

The tramlines of state power may be bright but not always certain and clear. Tension between branches of government is neither novel nor infrequent. Like all power struggles, they can be bitter and relentless.

Much is said when rulings are made against the legislature or the executive. However, it is the daily business of the courts to make rulings on wide and divergent disputes provided they can be resolved by application of the law. Every decision we make is bound to be unpopular or uncomfortable to a losing litigant or a section of the community. As we judges often quip, every decision we make, sadly, leaves someone’s nose twisted and bleeding. Also, decisions of that ilk are not limited to disputes related to the exercise of state power. The all-important consideration is whether a court has acted within the four corners of the Constitution. In fact, section 34 of the Constitution entrenches the right of everyone to approach courts and to have their grievance resolved by an impartial court.

“The Constitution requires the state to ‘respect, protect, promote, and fulfil the rights in the Bill of Rights. Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive that is an intrusion mandated by the Constitution itself.”

But since democracy, what have courts decided that may have overrun in breach of separation of powers?

Courts have created a respectable and fair trial-driven criminal justice jurisprudence starting with striking down the death penalty. In a series of notable cases, courts have refused to tolerate inequality and discrimination. They have struck down scores of laws that undermined appropriate respect for diversity or that harboured antiquated prejudices like homophobia, race and gender. They have fashioned the notion of substantive equality. Courts have insisted that laws and policy must provide for adequate protection of children, people with disabilities, refugees and migrants, as well as root out domestic violence.

Courts have required the executive to give effect to socio-economic claims of the poor and vulnerable. We have required government to provide appropriate access to health care. We have reminded the executive of its duty to provide access to housing. We have required Parliament to bring certain laws in line with the Constitution. We have mediated differences around eviction of homeless, urban and rural occupiers who are said to be unlawful. We have insisted that land owners must display patience as homeless occupiers find other refuge. We have ordered government to find alternative accommodation should evictions ensue. Courts have insisted that drinkable water be made available to vulnerable members of society. We have protected learners from being subjected to medium of instruction they do not want. We have required that learners be furnished with study material. Courts have required the social grants to reach all, including vulnerable migrants, and that grants be paid promptly, particularly in rural neighbourhoods.

Our courts have developed a proud jurisprudence on justice at the workplace. Courts have been properly pre-occupied with the protection of the right to free of expression, including a free press and the right to impart and receive information and art. And yet our judgments have also warned that free expression has limits, particularly when it encroaches on dignity and privacy. However, when public interest is in issue other and perhaps more pressing considerations come to the fore.

Courts have intervened where valid allegations have been made about wrongful procurement of goods and services by government. This is a sequel to the important requirement of our Constitution that when all spheres of the state contract for goods and services, they must do so within a system that is fair, equitable, transparent, competitive and cost-effective.

Those are broad brush strokes of what the judiciary has decided. In none of them can the court be said to trespass into fields of other arms of the state. A close reading and a nuanced appreciation of the separation of powers confirms that the court has acted within the ambit of the doctrine and the parameters of the Constitution.

You will recall my previous remark that courts do not exercise judicial review in order to usurp the functions of the executive and the legislature. They exercise judicial review to ensure that these branches of government operate in accordance with the Constitution. In performing this function, they safeguard the public interest and help preserve and deepen the democratic project. Although this is a vital role, it does not give the judiciary greater power than any other branch of government.

Conclusion

The judiciary makes rulings concerning other branches of government. But this does not mean that when judges do so, they automatically overstep their jurisdictional boundaries or are biased. It would be unreasonable to expect the courts never to rule against other branches of government for fear of “rocking the boat”. It must be well-understood that organs of state are “not immunised from judicial review” simply by virtue of the doctrine. The checks and balances embedded in the doctrine of separation of powers demand quite the opposite: courts must ensure that all branches of government, including other courts, act in accordance with the Constitution and other law. This is so because the Constitution is the blueprint of our transformative and democratic project. We may not depart from it as a matter or expediency.

On the other side of the coin, courts must defer to the appropriate branch of government when they cannot properly decide a matter without invading their terrain. They may not usurp the role of other arms of state and may not compromise their impartiality.

I do not think that courts have crossed the lines of separation of powers. If anything, our jurisprudence of 21 years shows that they have been meticulous not to trench on the terrain of the executive or Parliament. The Constitution itself commands judges to pronounce on the legal validity of the exercise of public power. When they do, they must display utmost fidelity to that task, which they must accomplish fairly and impartially. If not, our ambitious democratic project to create a better life for all will never flourish. Its lifeblood is clean and people-centred governance, the rule of law, democratic oversight and accountability and a dedicated, honest and prudent use of public resources to achieve social justice and equality. Courts are a necessary and important part of that constitutional ideal.