The key thing about democracy is that you get what you vote for. The winners may not be the most competent or honest, but they are the most popular. Perhaps people are easily misled or believe false promises. But what's the alternative?
As Winston Churchill observed "Democracy is the worst form of government except for all those others that have been tried." America's founding fathers were concerned about the "tyranny of the majority" in a pure democracy. Thomas Jefferson warned that "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."
While the American Constitution spoke of "We the people" it also had a Bill of Rights that no majority could over-ride. Its brilliant innovation was the separation of powers between the Legislature, Executive and Judiciary.
So the elected members of Congress pass the laws that are implemented by the President. These laws can be challenged in the Supreme Court to determine if they are in line with the Constitution Instead of one centre of power there are checks and balances.
These slow down the process, but decrease the likelihood of extreme policies driven by populist demagogues. America is actually a republic, which means that its highest law is the constitution.
South Africa is also a constitutional republic, with separation of powers and a Bill of Rights.
This was recently put to the test when the Constitutional Court lifted the interim interdict against the controversial e-tolling on Gauteng highways.
It ruled that "Courts should only grant an interim interdict preventing the national executive from exercising its statutory power in exceptional circumstances, and when a strong case is made out for the relief sought."
High Court Judge Bill Prinsloo was accordingly lambasted for his "deafening silence" on the separation of powers issue. This is not the end of the e-tolling saga, as the merits of the tolls will be argued before the High Court in November. But I am intrigued that the previous ruling was struck down by a unanimous Constitutional Court verdict.
How could a senior judge like Prinsloo make such an apparently obvious error? Or maybe the Constitutional Court judges were mistaken? I would disagree, for instance, with their contention that Gauteng motorists would not suffer more harm than SANRAL if the interim interdict was lifted. And SANRAL is unlikely to implement the tolls before the November court case because enforcement legislation and regulations are not in place.
The lesson is that judges are not infallible, and many decisions could go either way. This makes it all the more important that politicians are restrained from appointing judges biased towards government.
The Judicial Services Commission that chooses judges is less independent than it used to be from ruling party interference. Judges who are overly deferential to executive authority are a great threat to the separation of powers.
Where government policy implementation is irrational, irregular or without proper consultation, the public must be able to turn to courts that adjudicate fairly and objectively.
Government is pushing the tolls in the teeth of public opposition. But if public pressure and the courts don't stop them, voters should boot them out at the next election.
Jack Bloom MPL is DA Leader in the Gauteng Legislature. This article first appeared in The Citizen.
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