Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the AGM of the Black Lawyers' Association Student Chapter, held at the University of KwaZulu-Natal, Howard College Campus

04 Oct 2014

The President of BLASC,
Members of the Exco of BLASC,
Distinguished guests,
Ladies and gentlemen.

Thank you for the kind invitation to once again be part of a BLA event. BLA has a proud history of fighting for the underprivileged and the voiceless and it has an illustrious history of lawyers that were champions of the struggle against oppression and for social justice.

The theme of this year's AGM is the role of state branches in bringing about social justice. Social justice is closely linked to societal transformation. And societal transformation depends, to a large degree, on the development of socio-economic rights. The Constitution, by way of its transformative nature, explicitly rejected the social and economic status quo of the past and set out to transform society into a more just and equitable one, where human dignity, freedom and equality are paramount.

Today we accept justiciable socio-economic rights as a given, as the norm. Cases such as Grootboom, the Treatment Action Campaign, Soobramoney, Khoza and Mazibuko are so much part and parcel of our legal and public discourse that sometimes we even take the development of these rights for granted.

But this was not always the case. The history and surrounding debate regarding the inclusion of socio-economic rights in the Bill of Rights is well documented. Dugard, writing in the 2004 SAJHR, says that the Technical Committee responsible for the drafting of the Bill of Rights "had not hesitation in including these rights, but we were strongly criticised, particularly by the Democratic Party, the Chamber of Mines, the SA Institute of Race Relations and the Free Market Foundation" for doing so. Importantly, it was realised that the reciprocal link between civil-political rights and socio-economic rights could not be denied. As Fink Haysom argued, "without socio-economic rights, political/civil rights cannot exist in a meaningful way."

Socio-economic rights lie at the very interface of our courts, the executive and the legislature. The legislature and the executive are the primary branches responsible for the progressive realisation of socio-economic rights, yet, at the same time, our courts have to protect and ensure the socio-economic rights of individuals and communities and ensure that these rights are realised in accordance with the Constitution.

The role of our courts in transformative constitutionalism cannot be overemphasised. Pius Langa makes the point that transformation is a social and economic revolution and that the establishment of a truly equal society and the provision of socio-economic rights to all are a necessary part of transformation.

At that same interface between our courts, the executive and the legislature lies the separation of powers doctrine. Everyone is, no doubt, familiar with the doctrine of the separation of powers, yet many have differing views on what exactly the doctrine means and how it should be applied in practice. Pius Langa made the interesting point that the Constitution protects and promotes the doctrine of the separation of powers, but does not refer to it explicitly.

The doctrine underlies the South African constitutional order. Our Constitutional Court has held that "there can be no doubt that our Constitution provides for such a separation and that laws inconsistent with that the Constitution requires in that regard, are invalid."

Justifiable socio-economic rights have undoubtedly changed the traditional notion of the doctrine of the separation of powers, as these rights inevitably require judicial involvement in decisions which have far-reaching political, financial and budgetary implications for the other arms of the state.

Traditionally the doctrine was imposed to constrain excessive power in any one sphere of government. But the doctrine itself has evolved. The rigid delineation of boundaries of the original doctrine has been ameliorated by the introduction of various checks and balances, which enhances the overall accountability by the different branches of government, monitoring the exercise of power by one another.

The separation of powers is not absolute, but its boundaries are flexible. In the Treatment Action Campaign case the Constitutional Court rejected the idea of a rigid separation of powers among the legislature, executive and judiciary, and has recognised that there is always some degree of overlap between their functional areas. Although all arms of government must respect this separation, it does not mean that courts cannot, or should not, make orders that impact on matters of policy. In short, one should view judicial intervention or intrusion as an attempt to mediate and assist between conflicting policies and institutional competencies.

As Dennis Davis argues, the three spheres of government are constituted as distinctive entities, but are at the same time, interrelated and interdependent. The relationship between our courts and other arms of government should be in a process of creative tension. But the emphasis should be on the creative. In other words, the object of the exercise must be to ensure that all policy complies with the framework of our Constitution in general and the human rights guarantees in Chapter 2 in particular.

Then there is the issue of institutionality. The concept of institutionality focuses on the question of which sphere of government is best suited and best equipped to take a particular policy decision of deal with actual policy implementation.  Our courts have often raised the issue of institutionality; either as a basis for deferring a matter back to the executive or using institutionality as a reason for confining their judicial enquiry into only the reasonableness of government decisions.

For example, in the well-known case of Soobramoney v Minister of Health, KZN the Constitutional Court held that: "These choices involve difficult decisions to be taken at the political level in fixing the health budget, and at the functional level in deciding upon the priorities to be met. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibilities it is to deal with such matters."

And, more recently, as Justice O'Regan held in the case of Mazibuko v City of Johannesburg when she said: "Ordinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right. This is a matter in the first place for the legislature and executive ... indeed it is desirable as a matter of democratic accountability that they should do so for it is their programs and promises that are subjected to democratic popular choice."

Then there is the reasonableness test. The Court held in the Mazibuko case that when challenged as to its policies relating to socio and economic rights, government must explain why the policy is reasonable. Government must disclose what it has done to formulate the policy: Its investigation and research, the alternatives considered, and the reasons why the options underlying the policy was selected.

The Constitution does not, however, require government to be held to an impossible standard of perfection. Nor does it require courts to take over the tasks that in a democracy should properly be reserved for the democratic arms of the government. Simply put, through the institution of the courts, government can be called upon to account as citizens for its decision. This understanding of socio and economic rights litigation accords with the founding values of our Constitution and, in particular, the principles that government should be responsive, accountable and open.

Our courts have also, more recently and mostly in eviction cases, instructed government to negotiate with the persons or communities affected.

However, both the reasonableness test and the negotiating approach, as used by our courts have been criticised, mostly by some legal academics, as it is argued that this means not taking a strong enough stance against government. As Prof Steven Friedman writes, influential legal academics accuse the court of "ducking its responsibility to the poor by failing to tell the government exactly what it must do to meet their needs".

Simply put, should the courts not address poverty and inequality directly, by simply ordering government to do certain things? However, argue other commentators, this would be counter-productive and is not the approach most likely to serve the needs of the poor, as it disempowers them.

As Prof Friedman says: "The view that courts should decide what government policy should be is not only anti-democratic because it wants unelected judges to dictate to elected politicians. It also removes the most important weapon which poor people have - their ability to act to change the world. The people best able to decide what the poor need are, of course, the poor themselves. And if poor people cannot win political gains, which empower them, the court rulings are likely to be of little help."

Despite criticism from some academic quarters, I would argue that the way our courts have engaged the other arms of government in relation to socio-economic rights has significantly contributed to social justice.

Langa is correct when he said that transformation is not an end destination, but rather an ongoing, ever-changing phenomenon. Have our courts assisted in holding the legislature and the executive to account? Most certainly they have. Have our courts assisted the vulnerable and the disadvantaged in softening the effect of decades of systemic inequity that Sachs J mentions in the well-known Port Elizabeth Municipality case? Most certainly yes. Have our courts advanced the constitutional values of equality and human dignity in its socio-economic rights analysis. Most certainly so.

The answers to the questions go to the heart of transformative constitutionalism and social justice.

But, ladies and gentlemen, the three arms of government have recently been in the news, albeit not on the issue of socio-economic rights. In an article called "Nkandla: Anatomy of a Constitutional Crisis" Richard Calland and Lawson Naidoo say that our country "has been plunged into what is arguably a constitutional crisis."

Apart from finding the term overly melodramatic, one also fails to see where exactly the so-called "crisis" is. The article's definition of a ‘Constitutional crisis' is "a situation that the legal system's constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government. Often, generally speaking, a Constitutional crisis is a situation in which separate factions within a government disagree about the extent to which each of these factions hold sovereignty. Most commonly, constitutional crises involve some degree of conflict between different branches of government..."

One cannot help but wonder where the alleged "breakdown in the orderly operation of government" is that they refer to?

Their argument, in a nutshell, is that the Public Protector has the power to order that certain action be taken and that Parliament must simply ensure that the findings made by the Public Protector are implemented.

However, in my view, this does not take proper cognisance of the role of Parliament or the nature of the Public Protector's findings.

It all boils down to the question of whether or not the Public Protector's decisions are legally binding or enforceable? We, in government, argue that they cannot be. The Public Protector is not a court of law. When the Constitutional Court certified the text of the Constitution in the First Certification judgment, it held that the Public Protectoris an office modelled on the institution of the ombudsman.

The only reason it was called a Public Protector and not an Ombudsman, is because the term Ombudsman was considered to be gender-insensitive. Ombuds around the world do not make legally enforceable findings, unless their enabling legislation expressly provides them with quasi-judicial powers.

In January 1998 an article appeared in the UK's legal sector magazine "The Lawyer." The article states that - "The appointment of South Africa's first ever black Public Protector, Selby Baqwa, marked the beginning of a remarkable expansion of the office and the complaints referred to it... The office has no enforcement powers like most of its international counterparts. It relies instead on government and public approval of its findings."

In a similar publication, called "Righting Wrongs: The Ombudsman in Six Continents," by authors Gregory and Giddings, it unequivocally states that - "The Public Protector has no statutory authority relating to enforcement of his recommendations. Under the 1994 Act he has, however, the discretion to submit a special report to Parliament on the findings of a particular investigation, if the matter requires the urgent attention of, or even an intervention by, Parliament."

The Constitution refers to remedial action and says that the Public Protector may take remedial action. However, when one then looks at the Public Protector Act, and unpacks this it becomes clear that the Public Protector may only "refer" or "recommend." In short, the powers of the Public Protector are limited. The fact that the Public Protector does not have the power to make and issue mandatory directives arises from the very nature of the institution.

Indeed, as Bishop and Woolman point out, that is precisely the ground upon which such institutions are often criticised: "One of the most common criticisms levelled against the Public Protector and ombudsmen generally, is that the institution lacks the power to make binding decisions. In truth, however, the ability of the Public Protector to investigate and to report effectively - without making binding decisions - is the real measure of its strength."

Professor Mtende Mhango, professor in Constitutional Law at Wits, writes that the Public Protector can advise but not enforce her decisions. He states that: "The ombudsman is in no sense a court of appeal and he cannot reverse any government decision. His effectiveness derives from his power to focus public and parliamentary attention upon citizens' grievances. Where a complaint is found to be justified, the ombudsman can persuade government to modify a decision or pay compensation."

This is something that previous Public Protectors were aware of, for example when the first Public Protector, Adv Selby Baqwa, investigated former Minister Penuell Maduna and the Strategic Fuel Fund. In his report, tabled in Parliament in January 2000, Adv Baqwa found that Minister Maduna, who was mineral and energy affairs minister at the time, had acted unacceptably and violated the spirit of the Constitution by accusing the auditor-general, Henri Kluever, of covering up Strategic Fuel Fund "losses".

Adv Baqwa found the accusation to be unsubstantiated, unconstitutional and deserving of sanction by Parliament. Adv Baqwa urged Parliament to take steps against Minister Maduna, saying the constitution "would not be worth the paper it is written on" if politicians were allowed to act with impunity.  Parliament appointed an Ad Hoc Committee to consider the Public Protector's report and deal with the matter.

There was no mention of any constitutional crisis at the time.

The point that Calland and Naidoo miss is that in a constitutional democracy there is supposed to be some level of disagreement or a degree of conflict or tension. This is normal. It does not mean that there is a crisis.

They also over-simplify the role of Parliament. They argue that Public Protector is accountable to the National Assembly, but that this accountability relates to the overall performance of its mandate, budget and administration. This is simply incorrect, as it is Parliament who appoints the Public Protector and Parliament which can remove the Public Protector. The Public Protector is accountable to Parliament, just as the President is accountable to Parliament. Therefore the correct forum to deal with this matter is Parliament.

The matter is currently before Parliament. Parliament cannot simply be expected to rubberstamp the Public Protector's recommendations. In terms of the separation of powers, the Constitution and the Public Protector Act, Parliament has a distinctive role to play, a role which cannot simply be wished away.  Yet, despite all of this, there are still those who perpetuate the "constitutional crisis"- myth.

Ladies and gentlemen,

Let me conclude by saying that we are a young and vibrant democracy. Yes, there will be differences of opinion. Yes, there will be heated debates. And yes, there may at times be conflict and tension between the three spheres of government, other organs of state and our Chapter 9 bodies. This does not point to a constitutional crisis, but rather to constitutional democracy at work. What matters most is that we are all in agreement that our Constitution is supreme, regardless of whether we may at times differ on its interpretation.

I wish you all a very successful AGM. May BLA and its Student Chapter continue its proud legacy of bringing about social justice, transformation and a better, more free and more equal society.

I thank you!

Issued by the Department of Justice and Constitutional Development, October 4 2014

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