This discussion focused on the principle of separation powers and the Rule of Law in South Africa, in light of the recent public attacks by politicians on the independence and integrity of the Judiciary. The discussion was attended by guests from across the political spectrum, interested citizens, academia, civil society and the media. The speakers were former Constitutional Court judges Zak Yacoob and Johann Kriegler. In addition, Justice Yacoob served on the Independent Electoral Commission (IEC) from December 1993 to June 1994 and was a member of the Panel of Independent Experts of the Constitutional Assembly. Justice Kriegler, in turn, headed the IEC during the country’s first democratic elections in 1994. He was instrumental in establishing the permanent electoral commission, which he chaired until 1999.

Justice Yacoob commenced the morning’s proceedings and spoke about the separation of powers, which he said has no fixed meaning attached it. Since no single definition of the separation of powers applies across the board, a contextual interpretation of the constitutional document concerned is applied. The line of separation was hence not fixed and could be redrawn on a case-by-case basis. However, the Judiciary decides where this line is drawn.

He highlighted that section 1 of the Constitution outlines the values that govern the country. Amongst them are human dignity, non-racialism and the supremacy of the Constitution. Equality is, according to Justice Yacoob, just as important as any these values. One can thus not discuss the Rule of Law and the duty of the Judiciary without considering the duty to ensure the achievement of equality at the same time. He explained that the difference between parliamentary and constitutional sovereignty is that the former gives free reign to Parliament and the Executive, whilst in a constitutional democracy such as ours, everyone is bound by and subject to the Constitution.

Therefore, any law or conduct that is inconsistent with the Constitution is invalid. The Courts do not simply adjudicate private matters or those between the state and citizens. They are mandated to guard the Constitution, protect the people and limit government’s use of power. It is true that it is not the place of the Courts to regulate or adjudicate policy, but once such policy is executed and implemented by means of law or conduct, it is the Courts’ duty to ensure that such laws and conduct meet constitutional muster.

Section 165 of the Constitution provides that judicial authority vests in the Judiciary and only the Judiciary. It also emphasises the independent nature of the same along with the fact that the Judiciary is subject only to the Constitution. The same provision obliges the government to assist and protect the Courts to ensure this independence and impartiality. Justice Yacoob opined that whilst judicial decisions are subject to criticism and debate, such criticism must not come from people in power because of the aforementioned obligation. Furthermore, losing parties are invariably unhappy with loss before the Courts. However, organs of state cannot be seen to criticise the Courts each time they lose. In reference to the al-Bashir matter, he advised patience until the Constitutional Court had heard the matter. He declined to comment further – noting that this is the same discipline he expected from government.

He mentioned the Democratic Alliance v the African National Congress and Another judgment, in which the court found that a text sent to voters by the former,  was  an  expression  of  a  comment  or  opinion,  as  it  was  an interpretation of the Nkandla Report.  It was not intended to be, and did not hold itself out as being authoritative. He stated in line with this ruling that the government must exercise discipline and not criticise on an emotional level. Prejudicial statements from government have a different impact compared to those from an ordinary citizen. He also cautioned that attacks such as “overreaching” may be the beginning of stifling of the Courts. Whilst the debate around court decisions is healthy and must be kept alive, a balance is necessary and none of the attacks should be based on improper understanding of the Constitution and the separation of powers.

Justice Kriegler subsequently spoke on the Rule of Law. At the outset, he stated that the Rule of Law is an abstract and elusive concept. He too stressed that South Africa was founded on constitutional supremacy and the Rule of Law and explained how these concepts reinforced each other. Furthermore, he stated that the Rule of Law requires that law, conduct and even court rulings must be rational. Any decision made by the government in any capacity has to be met by a measure of rationality, without which, such conduct cannot have legitimacy. All state power derives from the Constitution and the state cannot accord itself any kind of power outside of it. Further, the Judiciary is entrusted with deciding whether that rational link exists in the state’s exercise of its power. He went on to draw a comparison between the parliamentary supremacy of the apartheid era and the constitutional supremacy of today. The Judiciary acts in a way that promotes public confidence via its open door policy and the fact that all decisions must be accompanied by sound reasoning. He compared the functioning of the Executive to that of the Judiciary and that the Executive is entitled to operate in private. He referred to the al-Bashir matter and mentioned that minor court decisions are subject to superior court confirmation – whether by means of appeal, review or confirmation, as the case may be – and echoed Justice Yacoob’s sentiments in this regard.

In the question-and-answer session, both judges reiterated that ultimately, a healthy tension exists amongst the Executive, the Judiciary and Parliament. Nevertheless, the Judiciary remains the final arbiter when it comes to interpreting the Constitution and law, and a ruling in this regard by the Constitutional Court is final. In addition, it is crucial to maintain the public debate on the separation of powers and independence of the Judiciary at every level of society, while ensuring that none of the reported attacks on the Judiciary were tolerated, regardless of the circumstances. In any event, such attacks were premised on an improper reading of the Constitution and thus a misinterpretation of the separation of powers. Both justices also welcomed and supported the Chief Justice’s intended meeting with the President, aimed at conveying the former’s concerns about the attacks on the integrity and independence of the Courts.

By Rebecca Sibanda: Intern, Centre for Constitutional Rights