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Judges alone cannot uphold democratic rights

Publish date: 16 May 2019
Issue Number: 4698
Diary: Legalbrief Today
Category: A Matter of Justice

In the apartheid era, judges had a narrow margin of choice between defending an individual from arbitrary action or finding ways of confirming executive power. Today, the Constitution acts as a framework for defending and advancing liberties for all. This empowers the state and the judiciary to ensure that the social and economic conditions of the poor – in regard to housing, healthcare and a range of other areas of social life – is enhanced. However, in the post-apartheid SA – not just in the Jacob Zuma era – this has not been the case. ‘Judges are reluctant to deal with politically-charged cases because they ought not to be perceived to make political decisions,’ adds the University of Johannesburg’ Professor Raymond Suttner in an analysis on the Polity site. ‘While judges have made decisions that defended democracy and went so far as to find that the head of state and National Assembly failed to act in accordance with their oath of office, not every dereliction of duty comes before the courts. The courts have made it clear that the scope of what they do is dependent on what cases are brought before them.’ He adds that former Deputy Chief Justice Dikgang Moseneke repeatedly called for a case to be brought before the courts in order to determine the meaning of the Constitution, with regard to expropriation of land without compensation. ‘That it did not happen related to the failure of political will on the part of the ANC. Instead of testing the limits of the law in order to try to alleviate land hunger through expropriation without compensation, for the needy in legitimate cases, the ANC governments have not provoked any such test case. There has been no attempt to see what could be done without succumbing to a populist demand to amend the Constitution.’ Suttner says it is ‘commendable’ that various political parties brought cases such as EFF v Speaker of the National Assembly and Others; DA v Speaker of the National Assembly and Others before the courts. ‘Nevertheless, it is important to recognise that judicial decisions ought to be a last resort, not only because it places judges in an invidious position. It should be stressed that court actions cannot be a substitute for what needs to be won politically.’ Suttner adds that the re-directing of political action towards what is required – ethically and constitutionally – may still encounter political obstacles. ‘The judiciary will remain an important resource in safeguarding democracy from any new acts of illegality by its democratically elected representatives and other public officials.’ However, he warns that the public should not rely purely on those whom they elect to defend their democratic rights. ‘The public needs to retrieve their original rights as political actors and enter the fray, in defence of, and in advancing, their freedom.’

Full analysis on the Polity site

EFF v Speaker of the National Assembly and Others; DA v Speaker of the National Assembly and Others