Constitutionalism at loggerheads with judicial overreach

South Africa has long been regarded as an excellent example of democratic governance in the promotion of the principles of constitutionalism, not only in Africa but internationally. This is even more impressive considering its emergence from the Apartheid system. South Africa's envisioned process of constitutionalism, which can be traced to the 1996 Constitution, seeks to demonstrate conformity to constitutionalism, especially through the separation of powers of the three branches of state – legislature, executive and the judiciary.


This means that constitutionalism creates no room for domination but requires each branch of the state to take responsibility and to account for the way in which it regulates its vested authority. This is particularly important for the legislature and the executive, the two branches that are at the helm of exercising and accounting for the way in which they execute authority. In turn, the judiciary, as the third branch of government, plays a pivotal role in fostering the principle of accountability.


Recently, the legislative branch of government has been put under intense scrutiny by the judiciary regarding the way in which it executes state authority. On the other hand, the judiciary itself has been subjected to criticisms from members of the executive, and certain political parties, for allegedly overreaching. It is further alleged that the judiciary compromises its own independence because it interferes with matters that do not fall within its terrain and should be addressed in the political sphere where they could be resolved.


The delicate system of checks and balances inherent to the doctrine of separation of powers was highlighted by the judgment of the Constitutional Court on 29 December 2017. In the case of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CCT76/17) [2017] ZACC 47 (29 December 2017), the Constitutional Court handed down a judgment in the matter connected with the Nkandla judgment regarding the president's failure to implement the Public Protector's remedial action.


The majority of the justices found that the National Assembly failed to put in place mechanisms and processes to hold the president accountable for failing to implement the Public Protector's remedial action, and issued an order compelling the National Assembly to convene a committee to investigate whether President Zuma was guilty of any impeachable conduct under s89 of the Constitution. The impeachable conduct considered under the section relevant to this matter is the serious violation of the Constitution.


These criticisms highlight the thin-line which the judiciary, in the context of judicial review, must tread to maintain the delicate balance of its independence and the enforcement of public accountability in the promotion of the principle of constitutionalism. In turn, the legislature's current apparent reluctance to hold members of the executive to account has put the judiciary in the untenable situation of having to repeatedly translate the perceived political questions into judicial ones.


Unique to our constitutional adjudication, a reasonable and substantive debate between the Justices of the Court arose when Chief Justice Mogoeng Mogoeng characterised the majority judgment as a "textbook case of judicial overreach – a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament". It is axiomatic that the doctrine of separation of powers is part of South Africa's constitutional design.


Notwithstanding the fact that there is no universally accepted model of separation of powers, the Court in the Certification of the South African Constitution 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC) judgment held that, "in a democratic system of government in which checks and balances result in the restraints by one branch of government on another, there is no separation that is absolute". Rather the doctrine is to be found in the provisions outlining the functions and structures of various organs of state and their respective independence and interdependence.


While the other two branches are endowed with legislative and executive roles, the judiciary sits at the apex to ensure constitutional compliance within the prescripts of the new dispensation. The Constitutional Court, which is mandated to deal with all cases concerning the constitutionality of both legislative and executive conducts, affirms the maintenance of the balance of power in Constitution and extends to upholding constitutionalism and the rule of law.


It is imperative that the courts do not derogate from their constitutionally mandated oversight function. Certain values in the Constitution have been designated as foundational to our democracy which means that, as corner-stones of our democracy, they must be scrupulously observed. We have a recipe for a constitutional crisis of great magnitude if these values are not observed and their precepts are not carried out conscientiously.


The "impermissible judicial overreach", as characterised by the Chief Justice, speaks to the interpretation of s89 of the Constitution, which relates to the Removal of the President from office; that is, impeachment. The majority of the Court found that parliament failed to put in place mechanisms to give effect to the section and ordered parliament to investigate the conduct of the president in terms of s89 within a certain specified number of days.


Section 89 envisages that the National Assembly may, by a resolution adopted with a supporting "vote", remove the president from office based on the grounds listed in the section. Of relevance to the judgment in question is the removal of the president for a "serious violation of the constitution".


Constitutional interpretation is the function of the courts.


In these circumstances, parliament is regulated by s55 of the Constitution which allows it to establish rules and mechanisms that it deems appropriate to conduct and regulate its business, pass legislation and ensure that it exercises its oversight function effectively. For the Court to then order that a committee be established is an overreach which is in itself unconstitutional and indicates a new constitutional mandate the Court is asserting to itself. It touches the fine nerve which Judge Davis warned of in the case of Mazibuko v The Speaker of the National Assembly and Others (CCT 115/12) [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) (27 August 2013) when he held that "Courts do not run the country, nor were they intended to govern the country. Courts exist to police the constitutional boundaries... Where the constitutional boundaries are breached or transgressed, courts have a clear and express role. Only when the Constitution has been transgressed."


The Speaker of the National Assembly indicated a vote had taken place in the house, however, this motion was unsuccessful. Voting itself suffices as a mechanism that the house uses to execute its oversight function. The Court cannot now seek to establish a "Killer-Punch" mechanism for the legislative arm of the state. This amounts to an impermissible judicial overreach.


There is a danger in South Africa of the politicisation of the judiciary; drawing the judiciary into every and all political disputes. Judges may not dictate to parliament when and how it should arrange its precise order of business. What courts can do, however, is to say to parliament: you must operate within a constitutionally compatible framework... However, how you allow that right to be vindicated, is for you to decide, not for the courts to determine.


An overreach of the power of judges, their intrusion into issues which are beyond their constitutional functions which were deliberately and carefully legally constructed to ensure that the other arms of state deal with these matters, can only result in jeopardy for our constitutional democracy.


Prepared By:  Andile Mcineka (Candidate Attorney) (Commercial & Litigation Departments) (Umhlanga Office)

Overseen by Mr Richard Browning