Nkosana Sibuyi

Posted by Nkosana Sibuyi: 01 August 2011

The Executive, Legislature and Judiciary are leaves, branches and roots of the same tree. The tree could be regarded as a metaphor for constitutional democracy. It is an embodiment of the national interest and national agenda. Without any compunction, the triplets play a defining role in the promotion, protection and consolidation of constitutional democracy. In this connection, working in tandem with organised civil society, business and community, the triplets enumerated earlier on provides a possibility to construct a citadel for a democratic developmental state in South Africa. The construction of such a state requires a singleness of purpose, commonality of vision and diverse worldviews to create a product that Mzantsi will embrace and be proud of.

The preamble of the South African Constitution states that:

“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the republic..”

Married to the above, section 2 unambiguously contend that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”

Furthermore, section 39 addressing the Interpretation of Bill of Rights states that “a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.”

The preamble, sections 2 and 39 affirm the centrality of South Africa’s constitutional democracy. In this spirit, they also recognise the supremacy of the Constitution on all matters. However, a recent announcement by President Jacob Zuma to extend the term of the Chief Justice, Sandile Ngcobo for five years, by utilising section 8(a) of the Judges Remuneration and Conditions of Employment Act went into the kernel of the constitutionality of such an action. Chief Justice Ngcobo’s acceptance of the extension of his term dated 2 June 2011 points out that he had decided to “accede to the request and continue to lead the judicial branch of government during this critical time of the transformation of the judiciary and judicial systems.”

It is patently clear that the Chief Justice, Sandile Ngcobo still wanted to serve but the dispute over the principle and process used to extend his term was fundamentally flawed. Consequently, it became clear that civil society structures could not allow normalising abnormality in the extension of his term.

Although Judge Ngcobo is credible, reputable, respected with impeccable credentials, there were legitimate concerns raised by different structures of civil society around the process followed to extend his term of office. The legal challenge was brought by civic organisations such as the Council for the Advancement of the SA Constitution, Freedom Under Law, the Justice Alliance of SA and the Centre for Applied Legal Studies at the University of the Witwatersrand. There were myriads of legal arguments advanced on this matter. One such argument proceeded from the premise that the section 8(a) which the President relied on is unconstitutional. Furthermore, they also argued that the section interferes with the independence of the judiciary owing to the reality that the Chief Justice would go all out to win the president’s favour to improve his or her chances of his or her term extended.

The discourse on the role of the executive and judiciary role on policy formulation has dominated the scholarly, academic, political and intellectual polity for many decades. For instance, President Jacob Zuma on the occasion of the 3rd Access to Justice Conference on 8 Jul 2011 said, “While acknowledging the strides we have made, it is our well-considered view that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of government, especially with regards to government policy formulation. The Executive, as elected officials, has the sole discretion to decide policies for government.”

In President Zuma’s address, he added that “this means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.”

Noble as the principles and values are, it must be recognized that the Executive, Legislature and Judiciary are leaves, branches and roots of the same tree. None of them is superior to the other. The triplets play meaningful role in the entrenchment constitutional democracy. In essence, it is incumbent upon each to defend, promote, consolidate and protect the profundity of the constitution. In the event that one of these triplets conducts itself in a manner that undermines the legitimacy of constitutional democracy, one or two of them will, accordingly see it fit to correct such a defect. The correction of the deficiency in question seeks to affirm the Constitution as the supreme law of the republic.

In this context, President Zuma statement on the 3rd Access to Justice Conference remains contestable and subject to different interpretations. For instance, he said: “Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country”. This political statement is not entirely closer to the truth. This was illustrated by the Constitutional Court judgements on the legalisation or upholding of same sex marriages on 1 December 2005 and the 1995 Grootboom case. To illustrate on same sex marriages, on 1 December 2005 the Constitutional Court agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage, were unfairly inequitable, indefensible, and therefore unconstitutional and unenforceable.

The majority ruling, pointed out that:

"The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew. It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples. It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and, as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples."

Consequently and despite some opposition, the Civil Union Act 2006 was passed by South Africa's Parliament and signed by then Deputy President Phumzile Mlambo-Ngcuka thus legalising same sex partnerships and marriages. This was a sequel to the ruling by the Constitutional Court on 1 December 2005 giving Parliament one year to make same-sex marriage legal.

The Constitutional Court rulings on the same sex marriages, Irene Grootboom case and the recent judgment on the unconstitutionality of section 8(a) of the Judges Remuneration and Conditions of Employment Act affirms South Africa’s constitutional democracy. It is therefore incorrect for the President to contest that “those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country”. Without any shadow of doubt, these cases were not brought by people who disagree with the ruling party. It was brought by people whose objective it was to promote, protect and consolidate South Africa’s constitutional democracy. From this standpoint, it is incorrect to say that the Executive has the sole discretion to decide policies for government.

It can be stimulating that South Africa has expressed the objective of becoming a democratic developmental state. South Africa’s vision to become a developmental state presents both a political, practical and epistemological challenges. It is clear that the country’s experience is informed by the dimensional circumstances within which she operates, concrete historical, social, geo-political realities and they obsequiously strive to define the evolution of genuine democratic states in respective environments.

Notably, the legal challenge brought by civic organisations such as the Council for the Advancement of the SA Constitution, Freedom Under Law, the Justice Alliance of SA and the Centre for Applied Legal Studies at the University of the Witwatersrand bespeaks of the need to strengthen State-Civil society relations in the construction of a developmental state. The developmental state imposes an obligation on the people, as active and conscious participants in the process of social change, to stand on the rostrum on which constitutional democracy shall be affirmed, defended and protected.

What can SA learn from this experience? The impressive role of civil society in a constitutional democracy remains one of the consciences of the nation. As enumerated in the prelude, the Executive, Legislature and Judiciary, working in tandem with organised civil society, business and community, provides a possibility to construct a stronghold for a democratic developmental state in South Africa. They shall gainsay atrophy in vision and intellect around state governance. Consequently, the integrity and legitimacy of state institutions will be affirmed and protected. Amen