The Times
*Guarding the constitution* *Ngoako Ramatlhodi, The Times, Johannesburg, 16 April, 2012 *I wish to dispense with preliminaries in order to repel attacks. I consider attacks on my person as unfair and unwarranted. A beneficial civil debate manifests only when interlocutors engage with ideas rather than spend precious time tackling authors of such ideas.
Firstly, my views and opinions are informed by deep familiarity with the historic processes that gave birth to our constitution. It is a fact that the ANC vision of a democratic South Africa was that of a unitary state. The ANC compromised this position and agreed to the present provincial system of government. The argument that there were no compromises is, therefore, false. The property clause itself was a compromise. No one should be ashamed of having made compromises because it is the nature of negotiations that there has to be a give and take if agreement is to be reached.
Secondly, I write in my personal capacity.Finally, the judiciary as an institution has never visited any harm upon my person to warrant personal vengeance, as some have suggested. On the contrary, I hold all men and women serving in the judiciary in the highest esteem and great awe, even when I disagree with some of the decisions they make . Still, I have a right, as all other citizens, to disagree with particular decisions. One may even criticise an emerging trend flowing from judicial decisions, not as a rejection of the constitution but as a cautionary call whenever I am of the opinion that permissible legal boundaries are being crossed.
There is a deliberate narrative to veer debate away from broader issues, namely the apartheid property relations and the visible racial undertones bedeviling the administration of justice in post- apartheid South Africa.
This reduces the debate to one on the separation of powers and the role of the constitutional court in particular. While it is important to debate these issues in their own right, we should be vigilant not to be derailed into narrow debates about our constitution. It is equally important to keep an eye on the entire system of the administration of justice to detect the latent racism so pervasive in all spheres in the country.
I will focus on my understanding of the doctrine of separation of powers in a constitutional democracy since responses to my initial document seem to have focused mainly on this area .
However, before doing that, I wish to make it clear that I have never propagated a thought suggesting the abolition of the separation of powers enshrined in our constitution. I am arguing that all three spheres are enjoined to observe and respect the boundaries laid out in the constitution. I am arguing for respect of the letter and spirit of the constitution, however imperfect it may be.
The doctrine of separation of powers recognises the existence and allocation of power to three arms, or spheres, of government, namely, the legislature, the executive and the judiciary, in no order of seniority.
The essence of the doctrine is that no sphere should encroach on the powers of the others. If that happens, the constitution is undermined and rule of law eroded.
All three spheres are bound by the constitution. In legal terms this principle is expressed as constitutional supremacy.
Seen in this context, the judiciary, while having the ultimate authority to interpret the law, should not act in a manner suggesting it is supreme to the constitution. It would be incorrect for the judiciary to invoke the constitution in order to ultimately undermine the very same constitution.
This doctrine was spelt out in the case of South African Association of Personal Injury Lawyers vs Heath 2001. There it was said that separation of powers and checks and balances require that the function of government be classified as either legislative, executive or judicial, and each function be performed by separate branches of government. The functions of making and executing the law and resolving disputes through the application of the law should be kept separated, and in principle, be performed by different institutions and persons.
In a constitutional democracy, the courts are the final arbiter as to what constitutes legislative and administrative acts under what is known as judicial oversight in some quarters. They also have the power to determine if there was substantive compliance with the law whenever a legislative or administrative act is performed by other spheres of government. This gives the courts enormous power in relation to other spheres under the doctrine of the rule of law.
This principle was spelt out by Lord Hoffmann in the Alconbury case when he said: "The more purely political a question is, the more appropriate it will be for political resolution and less likely it is to be an appropriate matter for judicial decision. Conversely, the greater the legal content of any issue, the greater the potential role of the court."
The enormity of the court's power derives from the fact that other spheres cannot interpret such content while the courts can.
There is an emerging trend which seeks to classify most administrative acts as subordinate legislation and thus qualify such as legitimate issues for the compliance test. Another interesting development has been the subjection of administrative acts to the rationality test. An unrestrained application of this test can lead the court to substitute its own rationality for the rationality of the designated body under the constitution.
Decisions such as the Glenister, Menzi Simelane and Mokotedi Mpshe cases have raised eyebrows in some quarters about the observance of the doctrine of judicial constraint by the judiciary. This doctrine demands that in a situation where there is a possible encroachment into other spheres' domains, the courts should err on the side of caution. T he doctrine suggests that judicial incursion into other spheres should happen only in exceptional and limited cases, if at all.
Given what seems to be unequal power, it is incumbent upon the courts to be not only guardians of the constitution, but also guardians of the limits of their own power and authority. Only when they act in that manner can they ensure the survival of our constitution by adhering to the constitutional separation of powers. Courts must not only respect the constitution, but they must be seen to do so.
* Ramatlhodi is Deputy Minister of Correctional Services.*From: http://www.timeslive.co.za/opinion/commentary/2012/04/16/the-big-read-guarding-the-constitution*
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