“Mr Netshitenzhe’s argument also shows how the idea of justiciable socioeconomic rights can be found in the Africans’ Claims, adopted by the ANC of 1943. The separation of powers ‘is a matter of conviction on the part of the ANC and not the convenience of political compromise’, he said.
He posed a profound challenge: should public frustration with the tenacity with which the white minority clings to power persuade the ANC to abandon its principles and join ‘the race to the bottom’?”
The above and other random extracts are quoted verbatim from Franny Rabkin’s article Spotlight on role of SA’s courts in the final issue of Business Day for 2011, and first published there, and are posted with the kind permission of Business Day. Click on the article to view or download it and also visit the website of Business Day.
Further verbatim extracts
Comments by some members of the executive this year questioning the role of the courts and their relationship with the other arms of state have sparked some thoughtful and interesting responses.
This earnest engagement with these comments provides a much stronger case to counter them than panicking or being contemptuous.
Competition Appeal Court Judge-President Dennis Davis, on his TV show Judge For Yourself, gave some perspective to President Jacob Zuma ’s and African National Congress secretary-general Gwede Mantashe’s concern about the ability of unelected courts to set aside the policy choices of an elected government.
He reminded us they are raising a question that has been troubling legal philosophers for years. It even has a name: the counter-majoritarian dilemma.
In this year’s Helen Suzman Memorial Lecture, former Constitutional Court Justice Kate O’Regan cast her eyes back over the judgments of the Constitutional Court and explained the principles the court applies when scrutinising government policy to test their constitutionality.
The role of the courts is not to thwart or frustrate the democratic arms of government — it is to hold them accountable for how they exercise public power, she said.
Particularly useful for lawyers and nonlawyers alike was her exposition of the “rationality test” — which policy must survive in order to be constitutional.
Justice O’Regan described the test as “some kind of rhyme or reason test. As long as there is some rhyme or reason to what the legislature or executive seeks to do, it will probably pass the rationality test,” she said.
Another valuable view came from renowned human rights lawyer Geoff Budlender SC in his Bram Fischer Memorial Lecture. Mr Budlender’s perspective is interesting because he was once a public servant in Nelson Mandela’s government. He argued persuasively that in a participatory democracy the power of the courts to set aside executive and legislative actions actually deepens and strengthens democracy.
The courts played a crucial role as a “critical mechanism of accountability” to the people in between elections, he said.
Another interesting contribution, which received no media coverage, came from ANC intellectual Joel Netshitenzhe in a paper presented at a conference of South African History Online. He responded, though not expressly, to The Times opinion penned by Deputy Correctional Services Minister Ngoako Ramatlhodi. In the article Mr Ramatlhodi portrayed the constitution as essentially a shoddy compromise.
Mr Netshitenzhe agreed that in the transition from apartheid to democracy, there were compromises galore.
But the principle of the separation of powers was not one of them. Nor was the independence of the judiciary. Instead, these two principles were in fact long- held ANC principles, he argued.
He quoted the ANC’s 1992 Ready to Govern document, which says: “The Bill of Rights will be enforced by the courts, headed by a separate newly created Constitutional Court, which will have the task of upholding the fundamental rights and freedoms of all citizens against the state or any body or person seeking to deny those rights.
“Mr Netshitenzhe’s argument also shows how the idea of justiciable socioeconomic rights can be found in the Africans’ Claims, adopted by the ANC of 1943. The separation of powers ‘is a matter of conviction on the part of the ANC and not the convenience of political compromise’, he said.
He posed a profound challenge: should public frustration with the tenacity with which the white minority clings to power persuade the ANC to abandon its principles and join ‘the race to the bottom’?”
The above and other random extracts are quoted verbatim from Franny Rabkin’s article Spotlight on role of SA’s courts in the final issue of Business Day for 2011, and first published there, and are posted with the kind permission of Business Day. Click on the article to view or download it and also visit the website of Business Day.
Further verbatim extracts
Comments by some members of the executive this year questioning the role of the courts and their relationship with the other arms of state have sparked some thoughtful and interesting responses.
This earnest engagement with these comments provides a much stronger case to counter them than panicking or being contemptuous.
Competition Appeal Court Judge-President Dennis Davis, on his TV show Judge For Yourself, gave some perspective to President Jacob Zuma ’s and African National Congress secretary-general Gwede Mantashe’s concern about the ability of unelected courts to set aside the policy choices of an elected government.
He reminded us they are raising a question that has been troubling legal philosophers for years. It even has a name: the counter-majoritarian dilemma.
In this year’s Helen Suzman Memorial Lecture, former Constitutional Court Justice Kate O’Regan cast her eyes back over the judgments of the Constitutional Court and explained the principles the court applies when scrutinising government policy to test their constitutionality.
The role of the courts is not to thwart or frustrate the democratic arms of government — it is to hold them accountable for how they exercise public power, she said.
Particularly useful for lawyers and nonlawyers alike was her exposition of the “rationality test” — which policy must survive in order to be constitutional.
Justice O’Regan described the test as “some kind of rhyme or reason test. As long as there is some rhyme or reason to what the legislature or executive seeks to do, it will probably pass the rationality test,” she said.
Another valuable view came from renowned human rights lawyer Geoff Budlender SC in his Bram Fischer Memorial Lecture. Mr Budlender’s perspective is interesting because he was once a public servant in Nelson Mandela’s government. He argued persuasively that in a participatory democracy the power of the courts to set aside executive and legislative actions actually deepens and strengthens democracy.
The courts played a crucial role as a “critical mechanism of accountability” to the people in between elections, he said.
Another interesting contribution, which received no media coverage, came from ANC intellectual Joel Netshitenzhe in a paper presented at a conference of South African History Online. He responded, though not expressly, to The Times opinion penned by Deputy Correctional Services Minister Ngoako Ramatlhodi. In the article Mr Ramatlhodi portrayed the constitution as essentially a shoddy compromise.
Mr Netshitenzhe agreed that in the transition from apartheid to democracy, there were compromises galore.
But the principle of the separation of powers was not one of them. Nor was the independence of the judiciary. Instead, these two principles were in fact long- held ANC principles, he argued.
He quoted the ANC’s 1992 Ready to Govern document, which says: “The Bill of Rights will be enforced by the courts, headed by a separate newly created Constitutional Court, which will have the task of upholding the fundamental rights and freedoms of all citizens against the state or any body or person seeking to deny those rights.