The number of court rulings against our government in the recent past should be cause for concern. Something has gone terribly wrong somewhere.
Is it a question of pigheadedness by the executive, poor legal advice or a matter of an untransformed judiciary? There was the ruling on the Nkandla matter, the Supreme Court of Appeal ruling on Sudanese President Omar al-Bashir and recently the ruling that found government’s notice of withdrawal from the Rome Statute of the International Criminal Court to be procedurally invalid and unconstitutional. There are many others brought by non-governmental organizations that have left government with a big egg on its face.
When things don't go government’s way in court, it is easy to blame the judiciary. The judiciary has previously been attacked by some members of government and the ruling party.
This reached its height in 2015 when leaders of the ruling party, in reaction to the ruling by the North Gauteng High Court to arrest President al-Bashir, singled out that court and the Western Cape High Court as problematic.
I for one believe that a fair and reasonable criticism of a judgment which is a public document or which is a public act of a judge concerned with administration of justice is healthy for our democracy. In fact, such criticism must be encouraged because after all no one, much less judges, can claim infallibility.
Where judges have interpreted the law incorrectly, there is an appeal system in our courts. And where the conduct of judges is suspect, such can be referred to the judicial conduct committee of the judicial service commission. Even judges are subject to and bound by the Constitution. However, pigheadedness and wrong legal advice cannot be blamed on judges. The question of wrong or poor legal advice must be attended to before it reaches crisis proportions. Is not specula. And where it is proven that government ministers and officials disregarded sound legal advice, they must personally bear the legal costs.
It should be encouraging that courts in South Africa can pronounce against another arm of state in spite of thin-veiled criticism about judicial overreach. The latter refers to courts exceeding their authority in interpreting the law and becoming an extra constitutional lawmaking body. This cannot but hurt the nation as it would be undermining the principle of the separation of powers.
Generally, our courts, especially the Constitutional Court, do not like straying beyond the function assigned to them under the Constitution’s division of responsibilities among the legislature, the executive and the judiciary. Indeed, there are cases where the ConCourt has chastised our lower courts on this matter and made decisions that affirm or uphold the separation of powers.
This is an important democratic principle contained in our Constitution and it is so far working well for our country. We must jealously guard it and celebrate its application. Of course, the temptation always exists by any of the three arms of government to stray beyond its assigned authority but the checks and balances exist. On this score, as in many others, our country is functioning and things are not falling apart as some would have us believe.
Take the recent social grants debacle as an example. When the executive branch failed, the ConCourt stepped in but without taking over the responsibility of the executive or the Minister concerned. Of course, it should worry the executive that the court ruled that the Minister of Social Development and Sassa would be required to report back to the court every three months on the progress made on finding a new company to distribute social grants. Monitoring and evaluation is the responsibility of the executive but it is clear here that the executive dropped the ball.
With hindsight, it is Cabinet that should have required of the Minister to periodically report to it on progress she and Sassa were making in finding a new service provider during the first time the invalidity of the contract was suspended. Be that as it may, the intervention by the ConCourt saved the day without undermining the principle of the separation of powers. The amount to be paid to the current service provider and the responsibility of finding a new distributor were still left to the executive.
There are other jurisdictions around the world where the courts have meddled in such decisions. In 2012, a high court in India ordered that all new vehicles registered in the state of Gujarat should run on compressed natural gas. In the same year, another high court in India found itself deciding what tolls should be charged at a toll plaza in Gurgaon, a city southwest of New Delhi.
I bring up these examples to once again demonstrate an appreciation by our judiciary of the doctrine of the separation of powers and how, without such an appreciation, the social grants payment might have been handled. So, in spite of our problems, our system works and we should be careful not to get into hyperbole mode about our challenges.
PASTOR RAY McCAULEY IS THE PRESIDENT OF RHEMA FAMILY CHURCHES AND CO-CHAIR OF NATIONAL RELIGIOUS LEADERS COUNCIL