Implementation – therein lies the efficacy of our Constitution
With George Bizos having passed on around this time two years ago (9 September 2020), kindly allow me in just a few words, to commence my address with a brief tribute to a gentle but fierce giant in law, a man who, through his commitment and dedication to serve, was for many women and men of all generations alike, truly inspirational.
Like many law students during my time, I of course knew about George Bizos long before I met him. With a life – story that reads like a page-turner, having left his country of birth at the tender age of 13 in pursuit of freedom, the legendary human rights lawyer and anti-apartheid fighter he had become in South Africa, he had shown his enduring and selfless humanism with his uncompromising devotion to social justice and human dignity for al, right into the tenth decade of his life. Watching him from the bench, making his submissions in the softest tones, yet so forcefully arguing his client’s case, has always been a real privilege to experience. As my comrade in the group of advocates for social cohesion, I have seen him regarded as the ever sage notwithstanding his typical self-effacing manner as he would be mingling with the youngest. And I could always see how he was held in the highest esteem by all.
Through his life-long service at the Legal Resources Centre, where he had the privilege to amplify the voices of some of the most vulnerable and marginalised in our land, we will always cherish his work. We continue to appreciate who he was and what he meant for South Africa. For so many reasons, including in the context of today’s migration challenges in the continent, the life of George Bizos is inspiring and demands to be repeatedly told.
The advent of our constitutional democracy
Having said that, those of us who had been around at the advent of our democracy will recall how, notwithstanding the conflicting positions on the struggle for the liberation of the people of South Africa, the various sectors of society, including civil society had gathered around and engaged on critical sector-related issues they would want, and at times even demanded to see included in the negotiated political settlement which culminated in the interim constitution. Similarly, later, as the Constitution – making process. Some of those issues continued to be taken into account as they were fed into the constitution-making process.
Indeed, the debates were difficult and sometimes heated but exciting. The commitment to carve out a society based on the foundation of a new democratic Constitution which defined the ethical direction of the future was palpable.
The contribution of ideas by a strong and well-organised civil society community, research and information-based institutions with some attached to academic institutions found their way into the constitution-making process. The submissions were generally well-intended, somewhat benevolent, sincere, and credible. Remember the boldness of the adoption of the principle of the power of judicial review which would check and balance parliamentary legislative power and executive power, ensuring that none would be exercised in violation of the constitution. Through the power of judicial review, unconstitutional legislation and the unconstitutional exercise of executive power, including government policy would be declared unconstitutional and set aside by the courts of law.
Remember too, the audacity that later went into the adoption of socio-economic rights as justiciable rights, rather than as mere policy directives or government guidelines in the manner of the Constitution of India at the time, which, ahead of any other constitution, went only as far as constitutionalising directive principles of government regulations and policy (in articles 36 – 51 of the Constitution of India).
As Chief Justice Ismail Mahomed once said, the power of judicial review is a power given to the judiciary by parliament on behalf of the people of South Africa who parliament represents. That power, he had reminded the judicial training seminar he was addressing at the time, must be exercised without fear, without favour and without prejudice.
Whereas in apartheid South Africa the doctrine of the sovereignty of parliament, with its concomitant supremacy of legislation had always been viewed as the foundation for the ever-widening gap between apartheid laws and justice, in the new democratic dispensation however, we were to hold the state to the highest standards. For that reason, the Constitution in section 7 (2) today, places an obligation on parliament, government and the judiciary, that is, all three arms of the state, to respect, protect, promote and fulfil the bill of rights, of course subject to the applicable constitutional limitations of the rights. The fulfilment and realisation of the rights in the bill of rights is therefore a constitutional duty placed not only on the judiciary, but first on parliament who, in its law-making role must be fully informed of the needs of people, passing legislation to meet those needs where necessary. The executive or government as the executing or implementing arm of the state must, through policy and strategic programmes implement parliamentary legislation, account to parliament, where parliament has a constitutional duty to hold government accountable.
It is when parliament and government fail in their constitutional obligations and complaints or disputes in that regard are brought before the courts that the judiciary will be involved, adjudicating over the complaints or disputes. It is in that adjudicative role that the judiciary must fulfil its constitutional obligation to respect, protect, promote and fulfil the rights in the bill of rights, taking into account the applicable constitutional rights limitations.
They must perform that constitutional duty independently, without fear, without favour and without prejudice, confirming or declaring parliamentary legislation or government action unconstitutional if needs be. And setting them aside. When making their orders for parliament or government to take corrective action, the duty of courts to refrain from judicial overreach, encroaching on parliamentary or executive powers is critical to maintain the well-being of any democracy. It is particularly important in the case of South Africa where the judicial review power of the courts still evokes relative discomfort.
When exercising the judicial adjudicative function, personal position on the issues at hand is irrelevant. There is no room for populism. A court’s decision must be cogently reasoned, based on the submissions of the parties; the provisions of and values in the constitution, and the applicable law must be lucidly interpreted and applied to the relevant facts and circumstances of each case. Often, pertinent surrounding social justice issues serve as context. (It is for that reason it is often said, no two cases are the same).
Any misinterpretation and or misapplication of the relevant facts and or the law, including the constitution, is subject to judicial review or an appeal before a higher court, where the court’s order is subjected to strict judicial scrutiny of the facts and the law. That function too, must be exercised independently, without fear, favour or prejudice. The earlier decision may there also be set aside and replaced with an appropriate order.
Judgements contributing to judicial precedent, are published in world-wide law reports which are accessible to the critical eye of judicial peers, the legal profession, the academy, thought leaders in general, and the watchful public at large. The principled consistency in the interpretation and application of the law, based on judicial precedent is ever present. Any unduly strained and or incorrect application and or interpretation of the law adopted for an undue purpose can be easily detected. Any impropriety on the part of a judicial officer in that regard is reportable to the Judicial Services Commission and may become the subject of disciplinary action, against the particular judicial officer, a risk not worth taking in the life of any judicial officer. If the decision is that of the Constitutional court, which is the highest court in the land, the shared reasoning of collective decision-making, which of course accommodates the freedom of individual judicial thought and decision-making, resolves the issues with finality.
The judiciary therefore has no constitutional mandate or jurisdiction to take up and decide social issues by themselves, no matter how dire the social justice circumstances. It, however, does not follow that the social context of the issues which come before the courts shall be disregarded. The contextual interpretation of the relevant facts and the applicable law in every case is an integral part of judicial reasoning and decision-making, when relevant. And can prominently impact the resolution of the dispute and the ultimate decision and order of the court. However, when the court’s decision is precedent setting, it can bring positive change to relevant social justice concerns in broader society. But, any suggestion that courts have an obligation to change the social justice landscape for vulnerable communities outside of the judicial process is at least misleading.
Indeed, the fact of rights in a bill of rights cannot by themselves make the rights an everyday reality. It is their substantive and effective implementation by all three arms of the state as mandated in the constitution, which stands a chance of doing so. However, unless all three arms of the state exercise the necessary will, have the required capacity and capability to substantively and effectively narrow the gap between the rights in the bill of rights and our everyday lives, the realisation of the rights in the bill of rights will continue to elude us.
Almost three decades of the operation of a constitution with a bill of rights, including justiciable socio-economic rights, we continue to grapple with social justice challenges which cut deep. When the nation came together to carve out a new democratic dispensation for ourselves, our intentions, although not ideal, were sincere, open and well-meaning. Although we have achieved considerable change, we have in so many ways only scratched the surface in achieving the egalitarian society we had envisaged in the constitution. Without being too hard on ourselves, the three arms of the state might have to regroup with the same determination and sincerity that went into the creation of our democratic dispensation. This time we shall have to interrogate lessons learned throughout.
In his state capture report, chief justice Raymond Zondo makes a number of observations and recommendations which point to the need for a number of structural changes among others, which the state might have to embark upon to enhance the capacity and capability of the state with a view to keep at bay a recurrence of state capture that in my view, will permit the nation to move forward, and in future, place people at the centre of state interests generally and state services in particular. That has now become a national concern and therefore requires a national effort. George Bizos would probably have said, more than ever, to challenge the status quo and this time, make contributions that could bring the necessary changes in our democracy to realise the promise of the Constitution, learning from its strengths and from its shortcomings.
While the law enforcement agencies and the courts continue to sift through the debris of state capture, salvaging whatever is possible for rebuilding the state, it might be important that the rest of society in the meantime regroup to determine how to take the nation forward.
Equally critical would be to ensure an all-inclusive grouping of sectors of the state and society, inter-generational and multi-sectoral. South Africa does not lack credible and capable institutions to bring us together and to manage such discussions. The result of the discussions would feed into the national effort to move the nation forward, with each arm of the state benefitting from such a national exchange of ideas.
As we wonder what Ntate George would have thought of such a wild thought, we might want to start thinking about it.
Thanks for listening.