Capture in the Court: In Defence of Judges and the Constitution

By Dan Mafora

Since populist factions claim to be the people, judges confronting them do not just decide against the people; they are against the people.
The judiciary faces a barrage of attacks not just from the ruling ANC but from other political parties clamouring for power.
There comes a predictable phase in the cycle of politics where this is most likely to occur. Dan Mafora provides much-needed insight.

• Language: English
• Publisher: Tafelberg
• Release date: Sep 15, 2023
• ISBN: 9780624093923

Dan Mafora

Dan Mafora is a lawyer and a commentator on South African law with a focus on constitutional law. He works in advocacy and public interest litigation. He previously worked for the Constitutional Court of South Africa. He writes about law, philosophy, politics, writing, literature, and the relationships between them. He lives in Cape Town.

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Tafelberg

For my mother, Galeboe, whose brief life made mine possible.

Acronyms and abbreviations

ANCAfrican National Congress

CJChief Justice

DADemocratic Alliance

DPDeputy President of the Constitutional Court

EFFEconomic Freedom Fighters

JJudge or Justice

JSCJudicial Service Commission

MPMember of Parliament

NCOPNational Council of Provinces

NDPPNational Director of Public Prosecutions

NDRNational Democratic Revolution

NPANational Prosecuting Authority

OCJ Office of the Chief Justice

P President of the Constitutional Court

RET radical economic transformation

SC Senior Counsel

SIU Special Investigating Unit

UCT University of Cape Town

Foreword

Adjudication is a special function. More so in a democracy. In its raw form, the Athenian inspired impulse of democracy ordains ‘the people’ as their own governors and rulers. As desirable as this idea is, it is only an ideal. Never in fact the lived reality of many. When the British introduced the limitations of the powers of the King, through that veritable instrument, the Magna Carta, of the thirteenth century, they did not in fact transfer political power to the people. Rather, a new political class emerged, which wielded political and legal authority in England.

Later revolutions in France and the United States of America promised to upend monarchical power, transferring power, once and for all, to ‘the people’. While people’s assemblies were established as a vector for political power, an area of contention remained: what is the place of legal authority? Should the judicial branch simply be merged into the political branch? It was to this question that Alexander Hamilton, one of the founding fathers of the American constitution, turned to when he wrote Federalist Paper No. 78. The judicial branch, he argued, ‘will always be the least dangerous to the political rights of the Constitution’. This was because judges, as distinct from the executive and the legislative branches ‘have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments’.

The separation of the judicial function from the political function has been central to the creation of the modern democratic state. It is now part of the larger conception of the state as comprising a diffusion of powers and decentralisation of authority. In the era of colonialism in Africa, a new dimension to the struggle against European invasion and despotism, was the struggle for the Bill of Rights, which would guarantee human liberty against oppression. And the question which once confronted the Americans about deciding how to protect human liberty loomed large. A broader and grander idea emerged: constitutionalism. Africans who first conceived of the installation of a constitutional state did so with their own experiences of colonial disruption and the possibility of its fundamental reversal. So, building constitutionalism required building democracy. Yet unlike the Athenian model, modern post-colonial democracy had to be constructed through institutions of the people, including parliamentary structures. An executive function was indispensable. A new phenomenon was the creation of the judiciary as a final check on the exercise of all political authority, based on procedural and substantive grounds. The guiding telos was the rule of law.

Both the view and the vision of constitutionalism have remained contested. More fraught has been the ideal of an apex judiciary exercising judicial review powers over elected branches of government. In its fulcrum the contestation is about legitimacy. Opponents of constitutionalism usually argue that without a ‘people’s mandate’, judges might have authority but no legitimacy to overturn the decisions of the ‘majority party’. The elected leaders should make decisions on our behalf, with no interference from the judges. Yet early twentieth century lawyers like Alfred Mangena, one of the early proponents of a rights-based system of government, would have pointed to the impoverished nature of the argument. To safeguard rights, they would have pointed out, one needs a judicial branch that is separate from the government.

Missing from the debate is the nature of ‘representation’ in the modern era. Today we no longer have direct representation as it could have been originally conceived under the broad umbrella of ‘democracy’. What we have is a form of republicanism. A much smaller group of people run the affairs of the state, ostensibly on behalf of the multitudes. While the justification for this phenomenon is usually functional: ‘there are simply too many people for direct democracy to work’, it is worth looking at the other contestation, between the people and their representatives. In his study The Principles Representative Government, Professor Bernard Manin has pointed to the struggle by the elites of Europe for republicanism instead of democracy. The total absence in today’s democratic systems, for instance, of the assembly system or the lot system, points to this elitism of the democratic system. So while the rhetoric employed is about the ‘people’, the reality is that the fight to end constitutionalism is often about the social, political and economic elites.

This is then why this book matters. It reminds us that the struggle for constitutionalism was worth it. Yet, existential threats remain. Fighting for democracy remains an ideal worthy of pursuit, despite the political, economic and social risks of disintegration.

While in global terms, South Africa was among the last to achieve freedom and with it constitutionally guaranteed rights, deepening these rights rather than eroding them is intrinsically connected to the function of promoting democracy. Our democracy is enriched, not undermined, by the rule of law and constitutionalism. At the heart of the rule of law and constitutionalism is the judicial function. When our judges interpret the law in a democracy, they are performing a legitimate function. But that legitimacy is not to be taken for granted. A central goal of the Constitution is to undo the legacies of colonialism and apartheid.

Unpacking this need not be a complicated matter: the achievement of equality is only possible if we end racism, sexism, and economic exclusion. Only when this goal is lived, more than preached, that the power of the Constitution becomes visible.

Tembeka Ngcukaitobi

3 August 2023

Prologue: A new form of capture

This book is not about state capture. Lord knows that I, like many others, am fatigued by the endless news reports about the report of the Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, about the lethargy with which parliament and the government seem to be approaching the implementation of its recommendations, and about the continued failure of law enforcement agencies to bring the perpetrators of state capture to book.

No, this is about a new, more insidious, form of capture. It is about the ascendant anti-constitutionalism of our present moment. Rhetoric that the Constitution has failed or is an obstacle to freedom, economic or otherwise, is flowering everywhere. On the political right, the sorry state of government institutions is held up as evidence of the failed South African experiment. White separatists say that our efforts at nation-building have floundered, that we ought to abandon the idea of a common South African nationhood and harken back to the ‘homeland’ ideas of old.

On the left, the failure by successive democratic governments to meaningfully redress colonial and apartheid era injustices is held up as evidence of the failure of the Constitution, which is seen as nothing more than the codification of the compromises of the 1990s. The negotiated settlement, it is said, failed to resolve the major questions posed by – and indeed, the objects of – the liberation struggle. Black South Africans remain poor and landless, and the Constitution is to blame.

On the one hand, the Constitution is said to be a foreign imposition on an African society that is proving unworkable in its context. Its embrace of ‘European’ ideas of the rule of law, equality, constitutional supremacy and the like, is denigrated as the continuation of colonisation by Western powers to ensure that a true African-led South Africa never comes into being.

On the other hand, politicians say that their ability to deliver on their electoral promises is permanently arrested by the Constitution, which does not give them the full range of motion required to exercise political power properly, for the pursuit of the good of all South Africans.

These views lie at the heart of this new anti-constitutionalism. Yet, responses to both have been reflexive and uncritical. Defenders of the Constitution harp on about how it is the best in the world and how every country that has drawn up its own constitution post-1996 has sought to emulate it. They do not take seriously the material critiques of the Constitution and so do not respond to them in any way that would assuage the concerns that inform them.

In this book, I attempt to do just that. In bearing witness to the present moment, I attempt to explain what it is we’re experiencing, why, and what it means for our future as a constitutional democracy. I do not seek to praise the Constitution or judges – its ultimate upholders – as pristine and beyond reproach. Instead, I engage the various critiques, on their own terms, to show how they mistake their target and in so doing fail to address the real issues. I point out the dangers of undoing our delicate constitutional arrangements, and draw attention to the consequences entailed by some of the challenges.

At every station, I attempt to excavate certain foundational principles that underlie our constitutional order and to show how they are meant to facilitate our flourishing as a political community. I draw, from past and present accounts, what the Constitution means and why it is valuable in and of itself. I do not argue for an understanding that treats it or judges as infallible, but instead urge that our debates about its content, meaning and significance go deeper, beyond pithy slogans and platitudes.

Above all, I attempt to inject into our discourse a critical inward-looking approach to debating the issues, placing the pursuit of truth at the centre. I cut through the noise, eschewing any grand narratives, focusing only on the finer details – arguing purely from the facts as we know them. The result, I hope, is a nuanced and deeper understanding of the constitutional order that will inspire hope in its utility and value, and that will empower each of us to stand in defence of it. And if I have failed, I hope that I will have at least added something new to the debate, a mustard seed that will at least temper the anti-constitutional discourse at its extremities.

‘The world changes according to the way people see it,’ James Baldwin said in a 1979 interview with the New York Times, ‘and if you alter, even by a millimetre, the way a person looks or people look at reality, then you can change it’. It is my hope that, with this book, I can move the needle just a little; that I can alter your view of the world by just one millimetre, and that we both – if not together – can change the world.

Introduction: Regarding bad Bantu government

I

South Africa’s transition from apartheid minority rule to democracy is often hailed as miraculous. It was preceded by all of the existential threats that bedevil any society on the cusp of a major constitutional moment. From the insurrection of white supremacist separatists, who were resisting negotiations, to the ethnic and tribal mobilisation by the leaders and formations of the former homelands, the betrayals of the National Party to stalled negotiations, and the ultimate boiling point – the politically motivated murder of celebrated communist leader Chris Hani in 1993.

Few thought it possible to fashion anything resembling a nation out of the ruins left behind by the ravages of centuries-long oppression and plunder. Yet, already in the days of the first democratic elections, green shoots began to appear from the long-sown seeds of liberation nourished by the blood of generations of defiant Africans.

The formation of the resultant Government of National Unity was by any measure a true miracle. For the first time in its turbulent history, a government founded on the popular consent of South Africa’s peoples came into being and Nelson Rolihlahla Mandela, the long-suffering leader of the African National Congress (ANC), became its president.

‘Mammoth’ is the only word I can think of to describe the task of his administration. As it turned out, it would take more than just newly granted citizenship to transform the lives of the majority of South Africans who were black, destitute, largely illiterate, consigned to the rural and peri-urban margins of society, and deeply distrusting of their white countrymen, and whose futures, by reason of history, were likely to remain treacherous voyages into the past.

II

Mandela, by sheer force of his magnanimity was able to inspire hope; to unite diverse sectors of South African society, if only briefly, behind the common goal of a better life for all. At the heart of this vision was a new Constitution to embody this newfound spirit. The task of bringing it to life was assigned to the newly established Constitutional Assembly, comprising the National Assembly and the Senate – the two houses of Parliament – functioning as one. The Constitutional Assembly was itself a creation of section 68 of the Interim Constitution of 1993. That constitution, in turn, was the product of the Multi-Party Negotiation Process and a key aspect of the transitionary framework that made the 1994 elections possible.

The Interim Constitution had several interesting features. It embraced constitutional supremacy as the chosen system of government,¹ a common South African citizenship,² a justiciable Bill of Rights,³ the certification by the Constitutional Court of any new constitutional text adopted by the Constitutional Assembly,⁴ and an independent judiciary.⁵ It also provided for the establishment of the Constitutional Court, which was given the power to invalidate executive conduct and Acts of Parliament that infringed on the Constitution.⁶ While the Appellate Division of the Supreme Court would be retained, it was stripped of jurisdiction over constitutional matters.⁷

The Interim Constitution was, to a large extent, a reflection of the ANC’s own internal debates on the design of a new state and the product of its contested turn towards constitutionalism that emerged in exile, during the 1970s and 1980s. The constitution-making process was certainly lively and robust and ordinary citizens showed a keen interest in participating. The recorded objections to, and inputs on, the draft constitutional text received by the Constitutional Assembly ran well into the millions.⁸ The first draft of the constitutional text was not certified by the Constitutional Court, which ordered that amendments be made to align it with the agreed Constitutional Principles.⁹ It was the amended text, submitted a year later, that became the Constitution of the Republic of South Africa of 1996, with which we are familiar today.¹⁰

On 10 December 1996, at the signing of the new Constitution in Sharpeville, the site of a bloody massacre 36 years earlier, Mandela delivered an address that is worth quoting at some length:

As your first democratically elected President, I feel honoured and humbled by the responsibility of signing into law a text that embodies our nation’s highest aspirations.

In writing the words which today become South Africa’s fundamental law, our elected representatives have faithfully heard the voice of the people.

[. . .]

We owe thanks to the Constitutional Court which has proved a true and fearless custodian of our constitutional agreements.

In centuries of struggle against racial domination, South Africans of all colours and backgrounds proclaimed