The Constitutional Justice Report: Judging The Judges II - Assessment

9 February 2018

This is the second part of a two-part brief concerning the Assessment of the Impact of the Decisions of the Constitutional Court and the Supreme Court of Appeal on the South African Law and Jurisprudence (Report). It will consider questions arising from the findings of the Report and highlight some issues of concern.

Does the Report threaten the judiciary?

As discussed in Part I, the announcement of this project initially gave rise to fears that it was an attempt by the executive branch of government to undermine the judiciary. Anyone who hoped it would must be disappointed. In fact, many contributors ascribe failures to fulfil constitutional rights to the executive branch of government. The Report clearly sets out various instances of failure by government to adhere to court orders, and provides some examples of even a wilful disregard.

The Constitution sets out the parameters for the separation of powers and, in doing so, the extent to which the branches of government may engage with each other. In the case of the judiciary, that space is squarely within the resolution of disputes. The courts cannot address any issue of social, economic, or political import unless it is brought before them in the form of a dispute. By no means have all socio-economic rights been adjudicated. The lack of cases concerning the right of access to food is an example. It falls on civil society, particularly public interest groups, to litigate socio-economic rights issues.

This being said, the Report states that the concept of separation of powers should not be seen as “inflexible”. A further, somewhat disquieting statement was that:

“Courts’ current approach is not useful and has resulted in the courts sidelining themselves in the dialogue with the executive and legislation over the constitutional vision of a better life for all. The courts have effectively diminished their own role, to the detriment of all spheres of government and the poor in South Africa”.

The traditional view is that openness and transparency require that the “conversation” between the elected branches of government and the judiciary properly should take place in a courtroom, on record, and must be accessible to the public. What is suggested is a more extensive “constitutional dialogue” than that which currently exists in a limited form, being the court process itself. The Report states that “each arm should be aiming to fulfil the promise of the Constitution to provide a better life for all – if this can be achieved without litigation, so much the better”.

The Report records that most members of the bench interviewed were not against this approach, but there were sceptics who say it would interfere with the independence of the judiciary. It remains to be seen whether or not the suggested “constitutional dialogue” is implemented, and if so, how.

All this seems to be a criticism of the courts for what they are rather than what they do. It is also surprising given the regular outcries by the executive and legislature that the courts overreach their mandate. It also flies in the face of the Report’s earlier conclusion that the jurisprudence of the Constitutional Court and Supreme Court of Appeal has been largely transformational.

Remedies

The Report emphasises that the courts should craft remedies creatively and in a manner that facilitates their implementation. It also suggests that the courts should take advantage of the various forms of remedy available to them, including structural interdicts, which requires the executive authority responsible for implementing the order to Report back to the Court periodically on its progress. Brief mention was made of whether contempt of court orders can be used as a tool to hold ministers and departmental officials accountable for their failures to implement court orders.

The Report failed to engage with the point that such remedies should not be necessary in the first place other than in exceptional circumstances. In a system of government where separation of powers operates in a healthy and functional way, a court order would be enough. It would not be necessary for the courts to oversee the implementation of orders, a task that pulls them away from their adjudicative function towards one akin to governance.

Nor would it be necessary for them to wield the threat of contempt charges to force officials to comply. Lack of respect for orders of court chips away at the judicial institution by undermining its authority, a notion confirmed by the Report’s finding that

“[I]t is noteworthy that concern and impatience are growing in response to failures to respect court decisions and to implement court orders, timeously or at all, which imperil the rule of law as a cornerstone of constitutional democracy”.

What is to be inferred from the delay in the Report’s release?

In his speech at the launch of the Report in November 2017, Minister Masutha did not even attempt to provide a reason for the delay in its release[i]. The delay has diminished the return on the resources invested. Was the Report’s kept under wraps because of its critical stance towards the actions (or, more likely, inactions) of executive officials? Was publication on completion not convenient because it would have come out at the end of a year noted for at times heated exchanges between members of the executive and the judiciary?[ii]

The delay is a concern, considering the general public debate on the political and social climate in South Africa. The Courts, academia, and civil society are constantly pressing further development of constitutional rights and constitutional litigation. The public has no way of knowing whether the timeous release of the Report would have shaped the executive’s approach to the courts and avoided some of difficulties regarding non-adherence to court orders that have since plagued South Africa.[iii]

Was the commissioning of the Report a good use of taxpayer money?

At a meeting of the Committee on Justice and Correctional Services, the Deputy Chief State Law Advisor Advocate Jacob Skosana stated that “the value of the Project to society is priceless, because it deals with matters such as the transformative project, cost of litigation and African customary law”[iv]. Putting aside “priceless”, it bears asking – was the Report worth some R10.3 million?

While there are certainly some useful outcomes to be gained from the Report (particularly where empirical research was conducted, taking into account the views of actual litigants and persons seeking to uphold their human rights), many of the conclusions reached will not surprise those who are reasonably knowledgeable about the state of the judiciary and its challenges. In this sense, its value is in collating these widely-held views, rather than introducing many novel ideas or providing concrete solutions.

Ultimately, though, the value of the Report will be judged by whether its findings are understood and adopted by the respective arms of government, particularly the executive.

How will the Report be taken forward?

The 2012 discussion document that gave rise to the Report anticipated that the outcome of the assessment “will generate a healthy debate that will assist in identifying areas that require attention in order for society to benefit optimally from the transformation outcomes”. That debate would assist in developing a “comprehensive programme of action to enable each branch of the state to overcome the hurdles that confront the transformation of the legal sector and society in general”.

But it remains to be seen what will be done about the Report’s findings. Some key recommendations that the Minister would do well to consider are:

- The need for a “concerted effort by various combinations of the executive, the legislature, academics and civil society, perhaps led by the [South African Human Rights Commission (SAHRC)], to identify the substantive content of the minimum core for each [socio-economic right]”, in addition to benchmarks to assess whether government’s performance meets the requirements of reasonableness in the context of progressive realisation of rights.

- Whether, to ensure compliance with court decisions, a monitoring agency should be identified in court orders, for example, the SAHRC.

- The extent to which failures in intergovernmental relations affecting socio-economic rights need to be addressed.

- Whether the policies of Legal Aid South Africa (formerly the Legal Aid Board) should be revised to increase spending to fund civil litigation, specifically for socio-economic rights matters.

- How to encourage civic education that educates and empowers communities so that they understanding the functioning of state machinery.

Conclusion

There has been no further public communication from the Department of Justice and Correctional Services regarding the Report since it was made public on 3 November 2017. A reason for this could be distraction in the form of current developments in government and politics. Even if this is the case, it is hoped that Report is not neglected and the expenditure in procuring it is justified by improvements in service delivery and access to justice for all South Africans. At least, every member of the upper echelon of public servants should read it.

Cherese Thakur, Legal Researcher, HSF, 9 February 2018

[i] A copy of the speech can be access of the Department of Justice’s website at http://www.justice.gov.za/m_speeches/2017/20171103-CJPreport.html.

[ii] See, for example, “Chief Justice wants to meet Zuma over attacks on judiciary” eNCAhttp://www.enca.com/south-africa/mongoeng-wants-meet-zuma-over-unfair-attacks-courtsaccessed on 31 January 2018.

[iii] Including, for example, Minister of Social Development Bathabile Dlamini’s failure to comply with the order of the Constitutional Court concerning social grants. https://www.news24.com/Columnists/GuestColumn/sassa-crisis-tests-the-powers-of-the-constitutional-court-20170316

[iv] Summary of meeting of Committee on Justice and Correctional Services, accessed at https://pmg.org.za/committee-meeting/17484/ on 1 February 2018.