The Centre for Human Rights awarded an honorary doctorate degree to Advocate George Bizos SC on 9 December 2011. Advocate Bizos is a distinguished human rights lawyer who campaigned against apartheid in South Africa, most notably during the Rivonia Trial.

Currently associated with the Constitutional Litigation Unit at the Legal Resources Centre, Advocate Bizos delivered his address 'Blame neither the Constitution nor the Courts' during the Spring Graduation Ceremony.

Blame neither the Constitution, nor the Courts
Advocate George Bizos SC
9 December 2011

It is my sincere pleasure to be with you all today. I first want to thank the University of Pretoria for conferring this honour upon me. Being here today reminds me of the establishment in 1986 of the university’s award-winning Centre for Human Rights as part of the efforts against apartheid. We should all be proud to be associated with a university whose Centre for Human Rights has made significant and numerous contributions to the advancement and strengthening of human rights and democracy across the African continent and abroad.

The title of my address today is “Blame Neither the Constitution nor the Courts.” There have been many criticisms levelled against the Constitution and the courts, most of which are, in my view, unfair, unjustified and uninformed. Today I would like to discuss one particular target of criticism, namely, the ability of the Courts to declare government law or conduct that is inconsistent with the Constitution to be invalid.

We have seen in recent times many criticisms of the role of the courts in our constitutional democracy. I offer a few examples:

• In an interview published in The Sowetan, Mr Gwede Mantashe, Secretary-General of the ANC, is quoted as saying that ‘…the judiciary is actually consolidating opposition to government’ and that ‘there is a great deal of hostility that comes through from the judiciary towards the Executive and Parliament,’ and that judges were ‘reversing the gains of transformation through precedents.’ [1]
• Similarly, an article published by Adv Ngoako Ramatlhodi, chairperson of the Parliamentary Portfolio Committee on Justice and a member of the Judicial Service Commission stated that our constitutional framework reflects ‘a compromise tilted heavily in favour of forces against change’ and that ‘power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party.’[2]
• During the Third Annual Access to Justice Conference in Pretoria, on July 8th 2011, President Zuma gave a speech where he said: ‘Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel [that] other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.’[3]
• Less than four months later, on November 1st 2011, in a speech given during a parliamentary hearing to say farewell to Chief Justice Ngcobo and welcome Chief Justice Mogoeng, President Zuma stated: ‘we also wish to reiterate our view that there is a need to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation. Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government.’ [4]

These criticisms have led to a number of recent lectures and papers on the role of the judiciary and the executive.[5] Today I wish to contribute to that dialogue.

I start with a recent quote from my friend and fellow advocate Geoff Budlender, who said: ‘The theory that the executive has a monopoly of wisdom on policy questions, based on a democratic mandate, strikes me as somewhat remote from reality.’[6]

The tension between the executive and the judiciary is not new to South Africa. In the 1897 case of Brown v. Leyds N.O.[7], then Chief Justice Kotzé held that the besluiten (informal laws passed without notice by a simple majority vote) were invalid on the ground of incompatibility with the Grondwet (the Constitution). He held that sovereignty vested in the people of the Republic and not in the Volksraand (the South African Parliament at that time); that the Constitution created fundamental law with which Parliament was obliged to conform; and that it was the duty of the court to declare invalid measures which were not in conformity with the Constitution.

John Dugard describes what happened next:

‘Kotzé C.J.’s judgment precipitated a major crisis, as its effect was to nullify a large body of legislation with the result that it could “safely be said that not a single institution in the land was legal.” President Kruger’s reaction was to push a bill through the Volksraad denying the constitutional competence of the judiciary to exercise the testing right, and empowering the President to dismiss any judge who failed to assure him that he would not exercise the “so-called right of testing.” In response, the judges adjourned the High Court sine die. At this stage Sir Henry de Villiers, Chief Justice of the Cape Colony, arrived on the scene and, after discussions with both Bench and President, secured an agreement that the judges would forego the testing right in return for an amendment to the Constitution guaranteeing the independence of the judiciary and protecting the Constitution from amendment except by special procedure. The President, however, delayed the introduction of such legislation and Kotzé C.J. informed him that his undertaking not to exercise the testing right had consequently lapsed. The President thereupon dismissed his Chief Justice, and Kotzé after publishing an Appeal to the Inhabitants of the South African Republic, in which he warned of the dangers of Volksraad supremacy, left the Bench.’[8] (emphasis added)

Later John Dugard writes:

‘The final word on the judicial crisis belongs to President Kruger. At the swearing-in ceremony of the new Chief Justice, R. Gregorowski, he enunciated a biblical-trekker legal philosophy which still haunts the minds of South African judges and lawyers. “The testing right is a principle of the Devil,” he warned. The Devil had introduced the testing right into Paradise and tested God’s word. Judges accordingly were advised not to follow the Devil’s way, as Kotzé C.J. had done!’[9]

More than half a century later, in 1951, the National Party Government enacted legislation that disenfranchised coloured voters. A group of coloured voters challenged the enactment in the case of Harris v. Minister of the Interior (the Vote case) in which the Appellate Division in a unanimous judgment delivered by Chief Justice Centlivres found that the act was of no legal force.[10]

Once again, John Dugard provides a succinct description of what happened next:

‘The Government’s response was to pass, again by the ordinary bicameral method, the High Court of Parliament Act, which provided that any judgment of the Appellate Division invalidating an Act of Parliament was to be reviewed by Parliament itself, sitting as a High Court of Parliament. After this High Court had set aside the decision in the Vote case, the High Court of Parliament was itself struck down by the Appellate Division in Minister of the Interior v. Harris (the High Court of Parliament case). This time the five judges (Centlivres C.J., Greenberg, Schreiner, Van den Heever, and Hoexter JJ.A.) gave separate judgments in which they all found that the High Court of Parliament was not a court, but simply Parliament in disguise, and that the entrenched sections envisaged judicial protection by a proper court of law. Legislation such as this, which deprived the entrenched sections of their judicial protection, could not be passed by the ordinary bicameral procedure.’[11]

These are but two examples of numerous disputes between the executive and the judiciary in South Africa. These are also two examples of how the apartheid regime responded when it was unhappy with the judiciary. I hope that our current ruling party does not intend to follow either the regime’s example or that of President Kruger. But I do have some concerns. The courts, as well as the individuals and organizations that bring human rights cases against the executive, to whom some impute false motives, have been subject to severe criticisms bordering on demonization.

South Africa is a constitutional democracy. All power, whether of Parliament, the executive or the courts, must be exercised in accordance with the Constitution, which is the final word on the powers and roles of each branch. The court is the guardian of fundamental rights and provides a forum for public debate so that the exercise of public power by democratically elected persons remains accountable. Judges’ interpretations support the rule of law, not executive whims, and judicial review allows courts to declare law or conduct that is inconsistent with the Constitution to be invalid.

The process of drafting the South African Constitution was a long one that involved many people. There were many disputes and negotiations broke down for a time. Shortly after his release, Nelson Mandela visited the ANC Committee entrusted with drafting a proposed Constitution for South Africa of which I was a member. He said to us, ‘Draft a Constitution that is good for South Africa as a whole and not only for the ANC.’ And that is what we did. The Interim Constitution of 1993 contained 34 constitutional principles with which the new Constitution was required to comply. The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. In1996, a new text was adopted with the support of 86 per cent of the members of the assembly and was sent to the Constitutional Court for certification.

The Constitutional Court had been established in order to adjudicate as an independent and impartial body free of any political interference. Judges were to be (and still are) appointed by the President on advice of the Judicial Service Commission. At the time of the appointment of judges to the Constitutional Court, the Commission was accused of having chosen judges that were either members or supporters of the ANC and who would favour the ruling party.

Imagine the critics’ surprise when the Constitutional Court unanimously refused to certify the first text of the Constitution, which had been supported not only by an ANC majority, as a number of its provisions did not comply with certain constitutional principles.[12] Parliament took note of the Court’s reasoning, amended the first text, and on December 4, 1996, the Court certified the Constitution, which was signed by President Mandela a few days later.[13]

About a year after Nelson Mandela became President, the Constitutional Court heard an urgent application challenging legislation that purported to confer powers on the President to legislate, which President Mandela did by way of proclamations.[14] The proclamations dealt with the vital local government elections that were soon to be held. An application was brought on the basis that the legislature may not empower the President to legislate and to the extent that the President purported to do so, he acted in conflict with the Constitution. Mr Mandela was named as one of the respondents.

The challenge was successful. In an 89 page judgment, the Court held that the provision purporting to empower the President to amend the legislation was inconsistent with the Constitution. That was a function of Parliament and not within the President’s powers. This despite that all political parties had agreed that the President should have the power to do what he did.

That same day, Mr Mandela rushed to the television and radio stations of the SABC and declared that he had signed the proclamation believing that he had the power to do so but that he respected the decision of the Constitutional Court and appealed to all concerned to similarly accept the Court’s decision. He announced that he would recall Parliament to pass legislation necessary for the elections to be held. What a pity that some of Mr Mandela’s successors have not followed his example. Many current government office holders have spoken out against the Court’s role in ensuring that the government acts consistently with the Constitution.

Since its inception, the Constitutional Court has invalidated a number of government laws and actions.[15] But the constitutional check on government laws and actions is not the exclusive judicial domain of the Constitutional Court. Recently, on December 1st 2011, a five-judge panel of the Supreme Court of Appeal declared President Zuma’s appointment of Adv Menzi Simelane as national director of public prosecutions to be unlawful.[16] The decision serves as a reminder to the President that he is not above the law.

The Court in Simelane cited the 1997 case of Hugo in which Krigler J said: ‘Ultimately the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands.’[17] Citing from a speech of former Chief Justice Mahomed, the Court in Simelane also wrote:

‘Dealing with critics who suggest that the power vested in the judiciary to set aside the laws made by a legislature mandated by the popular will, itself constitutes a subversion of democracy, former Chief Justice Mahomed, in an address in Cape Town on 21 July 1998 to the International Commission of Jurists on the independence of the judiciary, stated the following:

‘That argument is, I think, based on a demonstrable fallacy. The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.’

These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.’[18]

We should refrain from expressing a view on the correctness or otherwise of the Simelane decision as the Constitutional Court may hear the matter.

Anyone who suggests that any of the five judges who decided the Simelane case are “apartheid-era” or “apartheid-style” judges is seriously misinformed. None are. The four permanent judges on the panel were appointed to the Court of Appeal by the Judicial Service Commission. The fifth, an acting judge, was appointed by the present Minister of Justice and promoted to the Court of Appeal as an acting judge. Two of these judges devoted the greater part of their professional lives to working for the Legal Resources Centre. The Commission, the majority of whom are members of Parliament and nominees of the executive[19], under the guidance of former Chief Justices Michael Corbett, Ismail Mahomed, Arthur Chaskalson, Pius Langa, Sandile Ngcobo and Mogoeng Mogoeng, has had due regard to its constitutional duty to transform the judiciary, which, in my view, it has done successfully.

The Cabinet’s pronouncement just two weeks ago that it will appoint a body to assess the decisions of the Constitutional Court must give rise to great concern. This undefined and amorphous assessment body dangerously risks repeating our unhappy history.

In terms of the Constitution, the Constitutional Court has no right to formulate government policy, but it does have the right to adjudicate whether the implementation of government policy results in the deprivation of rights. The Constitutional Court has often drawn attention to this distinction between policy creation and rights compliance. One need only read the Court’s judgments in Grootbroom[20], the HIV case[21] and the very recent unanimous judgment of the Court, authored by Justice Johann van der Westhuizen, in Blue Moonlight[22] for clear examples. Those who are preparing to assess court judgments may reconsider the necessity of their proposed action if they and their advisors read the judgments. They may even begin to question whether the proposed assessment body will pass constitutional muster.

Any such body may be construed as a challenge to the independence of the judiciary, a value that we as South Africans should hold very dear. At this stage there are more questions than answers:

• What does “assess” mean?
• What will they assess?
• Will they assess the judgments, the judges or both?
• Who will conduct the assessments?
• How will the assessors be selected?
• Will the assessment body hold hearings?
• Will the lawyers who represented the parties be interrogated?
• Will judges have to offer additional explanatory reasons for their judgments?
• Is this going to be a new court of appeal and subvert the Constitutional Court, the highest court of the land?
• Will this open the floodgates to thousands of applications from those who lost before the courts?
• Did the cabinet have regard to the sections of the Constitution that guarantee the independence of the courts and prohibit anyone from interfering with court decisions?
• Will there be a challenge to the constitutionality of such an assessment body?
• And most importantly: for what purpose and to what end is this body to be established?

I do not have the answers to these questions. But here is what I do know. Court judgments, in which judges set out the reasons for their decisions, are public. These judgments are already commented on by the media, academics, journalists, and many others through public dialogue. What need is there for an executive-appointed assessment body to comment on these judgments? Will such a body have an adverse impact on the public perception of judicial independence, impartiality and integrity? Will such a body be perceived by some as an implied threat to the judiciary to toe the line? Will such a body demean the proper administration of justice?

Judges are not infallible. And that is why we have superior courts to which one can appeal. There is no reason to establish a new oversight body not provided for in the Constitution. Nobody likes losing cases but this idea of assessing the decisions of the Constitutional Court, or any other court for that matter, is neither prudent nor wise. Any such assessment body would take the people of South Africa down a road that is unconstitutional, unreasonable, unsustainable, and that must be construed as nothing less than a resurgence of the methods of the apartheid regime.

How ironic that the very party that fought so hard against apartheid is now considering adopting one of the regime’s most devious methods. The idea of assessing the courts is completely contradictory to the spirit, purpose and object of the Constitution and to the legacy of Nelson Mandela. Those responsible for conceiving of this assessment body should take the trouble to read section 165 of the Constitution, which guarantees the independence of our courts.[23]

I believe there may in fact be a need for assessment but not an assessment of the work of our courts. Rather, the executive would be well advised to look in its own backyard and assess the constitutional validity of its laws and policies. If these laws and policies are contrary to the provisions of the Bill of Rights or other parts of the Constitution, the Courts are obliged to declare the laws and policies, or the implementation of any part thereof, to be invalid.

 

Hope for the future

I have been practicing law since 1954 and did so particularly during apartheid. I reject any suggestion that little has changed in South Africa since the Constitution. Tremendous advances and fundamental changes have come about, particularly in relation to the administration of justice. During apartheid, judges and magistrates, with rare exceptions, were keen supporters of the apartheid regime and believed in the superiority of the white man. Today we have an independent judiciary, a Constitution which is admired both within and beyond our borders for its Bill of Rights, and safeguards to prevent breaches of these enshrined rights.

Reasoned criticisms of the Constitution and the Constitutional Court by anyone – politician or citizen, lawyer or non-lawyer – are welcomed and indeed are integral to our functioning as a constitutional democracy. But they must be well-informed, rational and reflective of the law.

The resilience of the human spirit is a powerful thing. I have always been touched by the innate goodness, incredible generosity and unyielding courage of the human spirit, particularly of those who suffer most. It is not only well known leaders whom I admire, but also the women in rural areas who burned their passes, the children who refused to attend school on the first day Bantu education came into being, the men who challenged their banning orders, the men and women who were detained without trial, the family members whose sons and daughters were executed, and many others.

They are responsible for my optimism. It is why I defended hundreds of political prisoners during apartheid despite repeated threats from the regime. It is why, at the age of 83, I continue to practice law. It is why I am so honoured to be with all of you here today: to spread the message and to see your young faces full of hope and optimism. Please do not lose that.

The effect of a Constitution on a society does not depend entirely on the content of the Constitution itself. The Constitution can only provide a state with the tools to govern. How those tools are used depends on those elected to govern.

Our Constitution entrenches some of the deepest values that we share as a people. The Constitution does not and indeed cannot provide easy solutions to all of the moral, social, economic and political dilemmas that we face. We have agreed to the principles, but the application of these principles to specific cases must be done in the courts and through public dialogue. The pursuit of justice is a never ending struggle and in defining our rights, there will of course be times when we disagree, but each day, through court judgments and public dialogue, we reinforce the shared values in our Constitution that unite us as a country.

We must recall the words of prosecutor Benjamin B. Ferencz who, during the Nuremberg Trials following the defeat of Nazi Germany, said: “There can be no peace without justice, no justice without law and no meaningful law without a court to decide what is just and lawful under any given circumstance.”

The history of South Africa is a dark one stained with profound injustice. But today the principles of equality and dignity govern. As global citizens, it is our responsibility to articulate the discourse around human rights in order to foster its continued development in South Africa and its continued growth all over the world. This is hard work, but let us be hopeful that this generation will meet those challenges and ensure that justice is protected in order to foster the spread and growth of democracy, the rule of law and human rights where they are needed most.

Injustice in South Africa is far from conquered and there will be many challenges in the future. But if we follow the Constitution, our most fundamental law, I am optimistic that we will not go wrong.

George Bizos SC
9 December 2011
Pretoria

 

[1] The full interview is available at: http://constitutionallyspeaking.co.za/full-sowetan-interview-with-gwede-mantashe/ (last accessed 6 December 2011).

[2] The full article is available at http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessions (last accessed 6 December 2011).

[3] The full speech is available at http://www.justice.gov.za/access-to-justice-conference-2011/20110708_ajc_zuma-speech.pdf (last accessed 6 December 2011).

[4] The full speech is available at http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=22876&tid=47864 (last accessed 6 December 2011).

[5] Geoff Budlender, “People’s Power and the Courts” Bram Fischer Memorial Lecture 2011 in Johannesburg, South Africa (11 November 2011) (“Budlender”); Justice Kate O’Regan, “A Forum for reason: Reflections on the role and work of the Constitutional Court” Helen Suzman Memorial Lecture 2011 in Johannesburg, South Africa (22 November 2011) (“O’Regan”); Judge Dennis Davis, “The judiciary: In the political storm?” Address to the Cape Town Press Club in Cape Town, South Africa (25 November 2011); Professor Pierre De Vos, “No one is above the law” Constitutionally Speaking Blog at http://constitutionallyspeaking.co.za/no-one-is-above-the-law/ (1 December 2011).

[6] Budlender (n 5) at p. 11.

[7] (1897) 4 Off.Rep. 17.

[8] John Dugard, Human Rights and the South African Legal Order (Princeton University Press: Princeton, New Jersey, 1978) (“Dugard”) at pp. 21-22.

[9] Dugard (n 8) at p. 24.

[10] 1952 (2) S.A. 428 (A.D.).

[11] Dugard (n 8) at pp. 30-31.

[12] Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC).

[13] Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1997 (2) SA 97 (CC).

[14] Executive Council, Western Cape Legislature, and others v President of the Republic of South Africa and others, 1995 (4) SA 877 (CC).

[15] “…147 of the 422 cases before the Court have required the Court to determine whether a provision in an Act of Parliament is inconsistent with the Constitution. Of those 147 cases, the Court found in 90 of them that the legislative provision under review was inconsistent with the Constitution…”: O’Regan (n 5) at p. 15.

[16] Democratic Alliance v The President of the RSA & others, [2011] ZASCA 241 (Simelane).

[17] Simelane (n 16) at para. 59.

[18] Simelane (n 16) at para. 122.

[19] Only four of the 25 member Commission are judges.

[20] Government of the Republic of South Africa and Others v Grootboom and Others 2000 (1) SA 46 (CC).

[21] Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC).

[22] City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33.

[23] Section 165 of the Constitution reads as follows:

Section 165 Judicial authority

(1) The judicial authority of the Republic is vested in the courts.

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

(4) Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.