General: ‘Lawfare’ a sign of ‘dynamic, deepening democracy’ – Jeffery

The ‘lawfare’ regularly featuring in SA’s Constitutional Court roll should not be viewed as cause for concern, according to Justice and Constitutional Development Deputy Minister John Jeffery – who believes it points to ‘a dynamic and deepening democracy’, reports Pam Saxby for Legalbrief Policy Watch. Speaking at a recent Black Lawyers Association student chapter summit in Johannesburg, the Deputy Minister said that ‘at times’ it is ‘natural’ for a court to ‘enter the areas of responsibility of … other arms of state’. In his view, the real issue is ‘whether there are not perhaps other, equally effective ways of resolving disputes’ over ‘political and policy differences’. Emphasising the importance of ‘striking an appropriate balance’ between ‘judicial activism’ and ‘judicial restraint’, Jeffery observed that ‘even judges themselves disagree from time to time as to areas of perceived judicial overreach’.

Noting that socio-economic rights tend to be the focus of cases in which ‘judicial activism’ takes place, the Deputy Minister said that, ‘invested with great political power’, SA’s judges ‘are permitted to override measures enacted by the legislature and the executive … (and regarded) as consonant with the Constitution’. In such instances the ‘tensions’ ensuing are ‘normal’ and the reasons for them ‘obvious’. Given that ‘judicial discretion often competes with legislative discretion and executive discretion’, government ‘accepts and complies’ with the judgments concerned  – which anyway frequently reflect the Court’s endorsement of ‘the principle of self-restraint’.