OP-ED: Activist judges
Judiciary’s mandate should include promotion of equity to counter courtroom inequality and ongoing social injustice
In this speech to the Third Annual Summit on Social Justice on 11 October 2021, Judge President Dunstan Mlambo argues that ‘the courts must, as custodians of the Constitution, come down from their ivory towers to defuse the situation on the ground by making justice accessible to all. Given the precarious situation we find ourselves in, the good men and women of the judiciary should take it upon themselves to restore respect for the rule of law in this country.’
As I commence with this talk, and to espouse the context I will refer to, I am unable to resist the temptation to reflect on those aspects of our past that have resulted in the poverty and inequality reality we find ourselves in, in this country. In the pre-Constitutional era, the majority of South Africans were denied access to the most basic of services needed for survival and development. These services were construed as privileges to be distributed based on apartheid’s distorted logic in which the largess of services was reserved for the white minority population. Resources, services, and entitlements were distributed along racial lines with so-called non-whites being refused adequate services. African women received little to no resources and experienced double discrimination and exploitation based on their race and gender. We are witnesses today to the entrenched implications of each of these Apartheid expressions regarding the affordability of and access to basic services in South Africa.
No one can deny that the inferior living conditions imposed on South Africans by the discredited system of Apartheid had severe socio-economic consequences on their lives. It stripped most of their human dignity and deprived them of their basic human rights. It consigned the majority of South Africans mainly black, to gross social inequalities, social dislocation under the influx control laws and destitution on a massive scale.
This I believe provides an appropriate platform, 25 years after we adopted a progressive Constitution, with an elaborate Bill of Rights in which social justice has pride of place, to examine the role of courts or the Judiciary in advancing or promoting economic parity. This must at the same time encompass the impact of the separation of powers principle.
Have we witnessed meaningful advances of the social justice agenda of the Constitution?
I propound the notion that for economic growth to translate into economic parity within society in a constitutional democracy, the State, as the duty-bearer must adopt rights-informed legislation and social justice policies that follow a distributional pattern of focusing on the poor and ensure the availability of financial and human resources for the implementation of such policies.
On the role of the Judiciary, its role is not determined by the individual or collective idiosyncrasies of judges, but rather the architecture of the constitution and the norms and values found therein. While the process of differentiated incorporation may allow courts to enforce socio-economic rights in a useful and appropriate manner, it does not speak to the capacity of such adjudication to rectify social injustice. The question we must then ask ourselves is, have the South African courts contributed to positive social change?
The inescapable elephant in the room in this regard is the proliferation of what has been termed lawfare i.e., the litigation invoking judicial review of what I’ll loosely term, political action, in which the Judiciary has come under directed and consistent backlash. The criticism has been that the courts are encroaching on the domain of Parliament and, as such, the powers of the Executive and Legislature are under threat.
This perception of the politicisation of the Judiciary is in part informed and reinforced by information distributed in the media. The narrative of a politicised or captured Judiciary impacts the way the public views the Judiciary. The media itself is a useful tool for sharing information; however, the function for which it is often used to create and deliberately misrepresent narratives about certain institutions has the effect of undermining these institutions.
In relation to the Judiciary specifically, such public narratives have the detrimental effect of discounting the authority of the Courts. The three arms of government are established to perform important and inter-related functions guided by the separation of arms principle: which simply stated means — there shall be a separation of powers between the Legislature, Executive and Judiciary, with appropriate checks and balances to ensure accountability, responsiveness, and openness. These separate branches exist for the proper governing of South African society. Those in Parliament are democratically elected by the people. On the other hand, the members of the Judiciary are appointed by the JSC in an open and transparent manner after public interviews. The JSC is made up of members of Parliament, amongst others, and are then appointed by the President.
In our constitutional system and to ensure against unchecked abuse of public power we have adopted accountability, the rule of law and the supremacy of the Constitution as values of our democracy. The Constitution empowers the Legislature and Executive to make law and oversee its implementation. The jurisdiction to pronounce on the constitutional validity of laws or conduct is conferred on the Judiciary. All the institutions of the government are subject to the rule of the Constitution. A system of checks and balances is important in a constitutional democracy to limit the power of each of the three branches of government. The doctrine of separation of powers requires that the arms of government perform the different functions of the state to prevent centralisation of public power.
Post-Apartheid initiatives to fight poverty and inequality
Let us not forget that under apartheid, socio-economic benefits such as social security, education and health care were regulated by law on a racially discriminatory basis. The lives of the Black majority were governed through an elaborate system of statutes, regulations and codified versions of African customary law embodied in legislation such as the Black Administration Act, which allowed the Governor-General to banish a ‘native’ or ‘tribe’ from one area to another whenever he deemed this expedient or in the public interest.
Fast forward 27 years from 1994, we remain confronted by poverty and inequality often said to be worse than under apartheid. Why has this scenario persisted after the demise of apartheid? Class differentiation has stepped into the breach previously occupied by apartheid. Former President Mbeki described South Africa as a “two-nation society: one of these nations being White, relatively prosperous regardless of gender or geographical dispersal. The second and larger nation being black and poor with the most affected being women in the rural population in general and the disabled. These two nations are distinguished by unequal access to infrastructure of all kinds and unequal access to opportunities. The challenges faced by the second nation include illiteracy, poverty, lack of access to policy participation, lack of access to basic services and inadequate or lack of exercise of basic human rights. This results in this segment of the nation to being marginalised, poor and vulnerable.” (See Hansard column 3, 378 House of Assembly 1998.) Persons in this category run the risk of marginalisation, risk inequitable decisions particularly where the matter involves a socio-economic power imbalance, and their rights are routinely violated.
As we have witnessed, several political parties have approached the courts to have various decisions with political implications reviewed. The Constitutional Court noted in the matter between the United Democratic Movement v Speaker of the National Assembly and Others that they, the UDM, invited the court to get involved and to clarify the nature and extent of Parliament’s powers. Adding, “rightly so, because everyone has the right to have a dispute that can be resolved by the application of law decided in a fair public hearing before a court.” Perhaps, we should be directing our enquiries regarding the courts’ involvement in these political contestations elsewhere, there is clearly a need for the courts to adjudicate on political matters, I leave it to you to consider why we find ourselves so often in this position.
Clearly the Constitution has not levelled the playing field between the two nations identified by former President Thabo Mbeki. Instead, it can be said that we have the most unequal society in the world and have overtaken Brazil as the country with the highest disparity in income between the rich and the poor. Why does this reality persist when we have courts that have the Constitution at their disposal to tackle this spectacle? There are several reasons for this and I will briefly examine them.
Affordability and access to courts
In our expensive court system, without legal aid, it is impossible for lower-income groups and the poor to enforce their rights. There is no doubt that addressing economic inequalities, joblessness and redistribution is critical to alleviating the plight of the poor. There still remain gaps that exist in the delivery of civil legal aid to the indigent and the poor so that they can approach the courts to ensure that the state promotes, fulfils, and protects the rights enshrined in the Bill of Rights. Where this avenue is not available to people to have their issues heard in an open court, such people out of frustration resort to violent protest of the kind we have witnessed in service delivery protests across the townships.
In Mohlomi v Minister of Defence, the court recognised that South African society is pronounced by poverty and illiteracy and bound by the differences of culture and language. The court further indicated that most persons who are injured are either unaware or poorly informed about their legal rights and what they should do in order to enforce those, and access to professional advice and assistance is difficult for financial or geographic reasons.
In President of the Republic of South Africa v Modderklip Boerdery, the Constitutional Court highlighted that the first aspect that flows from the rule of law is the obligation of the State to provide the necessary mechanisms for citizens to resolve disputes that arise between them.
In Access to Courts (2004 SALJ p341) Geoff Budlender argues that access to courts means more than the legal right to bring a case before court. It includes the ability to achieve this. In order to be able to bring his or her case before a court, a prospective litigant must have knowledge of the applicable law, must be able to identify that he or she may be able to obtain a remedy from a court, must have some knowledge about what to do in order to achieve access and must have the skills to be able to initiate the case and present it to the court.
This has remained pie in the sky however to the ordinary man in the street, rendering courts irrelevant to their plight. The recent looting spree is clear evidence that the prevailing poverty and marginalisation of the poor sectors of society remains a powder keg ready to explode as we saw.
Polycentricity and the socio-economic reality
Socio-economic cases are considered poly-centric because of the conception that they have budgetary consequences. For example, a case involving a person’s right to housing would not only impact that person and the state but also the interests of other citizens. The interests of other citizens would raise questions, such as whether the money should be used to build a crèche, hospital, or school.
The Grootboom case is a good example of a case involving a decision relating to budgets. The case brought to the attention of the authorities the widespread problem of accessing adequate housing by desperate people. The declaration by the court that the government’s emergency housing programme was unreasonable has since inspired other litigation and policy revision in housing rights.
Similarly, the Constitutional Court dealt with the Treatment Action Campaign case in a manner leading to Nevirapine being available at state expense to all HIV positive mothers to prevent the transmission of HIV from mother to child.
These cases show that socio-economic rights are justiciable and with the assistance of persuasive argument the courts can draft a remedy that impacts positively on the lives of poor and indigent people.
These cases gave us hope that socio-economic justice would be accelerated, but this has fizzled into a finger-pointing game with no meaningful progress whatsoever. The problems on the ground are a lot more serious — there is a pronounced lack of access to clean drinking water in a number of black communities; there is the continued usage of pit latrine toilets for school learners, who happen to be black, Eskom has come back with load shedding which affects the poor as they have no alternative options. The rich and affluent will complain but they have the option of purchasing generators, we are still in the throes of the Covid-19 pandemic, and its onset resulted in massive job losses for black workers in particular.
The need for transformative jurisprudence
The most effective way to address these ills, I suggest, is an unwavering pursuit of transformative jurisprudence. Transformative jurisprudence must be founded in a court’s understanding of the actual conditions in which people live. There is a degree of consensus over the general meaning of transformation amongst progressive lawyers in South Africa. In S v Mhlungu, Sachs J commented that the Constitution “… is a momentous document intensely value-laden. To treat it with the dispassionate attention that one might give to Tax law would be to violate its spirit as set out in unmistakably simple language…”.
In such a deteriorating situation as we have in this country, the courts must, as custodians of the Constitution, come down from their ivory towers to defuse the situation on the ground by making justice accessible to all. Given the precarious situation we find ourselves in, the good men and women of the judiciary should take it upon themselves to restore respect for the rule of law in this country. The judiciary always comes out fighting on all fronts whenever the independence of the judiciary has been threatened. I am of the view that the judiciary should follow the example of the Indian Supreme Court under Chief Justice Bhagwati who described the functions of the Court in relation to poverty and oppression in a somewhat different vein. He said:
“Can judges really escape addressing themselves to substantial questions of social justice? Can they simply say no to litigants who come to them for justice and the public that accords them power, status, and respect, that they simply follow the legal text when they are aware that their actions will perpetuate inequality and injustice? Can they restrict their enquiry into law and life within the narrow confines of a narrowly defined rule of law? Does the requirement of constitutionalism not make greater demands on the judicial function” (Justice P.N. Bhagwati, “Bureaucrats? Phonographers? Creators?”, The Times of India 21).
The short history of litigation in our Courts under our Constitutional democracy has demonstrated that the answer to all of the above rhetorical questions has been a clear and unambiguous, ‘no’. Has the time not come for the judiciary in South Africa to become judicial activists in the fight to alleviate poverty and inequality as demanded by the Constitution? In the 1980s, due largely to the collective philosophy of a group of radical judges who formed the major view of the Indian Supreme Court at the time, a primary function of the Supreme Court of India became “the liberation of the poor and oppressed through judicial initiatives”. In their judgments during this period of judicial activism, the Indian Supreme Court Justices deliberately adopted a style of interpretation they argued “showed the passion of the Constitution for social change. Their credo was the conviction that in developing social judicial activism as essential for participative justice… Justices are the constitutional invigilators and reformers who bring the rule of law closer to the rule of life” (P Singh: Judicial Socialism and promises of Liberation, 28 of Indian Law Institute 338 (1988)).
The Constitutional Court has handed down innovative judgments which are cited with approval internationally by other foreign jurisdictions because of the way they have given expression to the dictates of our Constitution. Our Constitution has been acknowledged as the most progressive Constitution in the world. Armed with the Constitution as our guide we are under an obligation to lead the country and its people into a peaceful era where the rights enshrined in the Bill of Rights are protected, promoted and fulfilled for all. There is no reason whatsoever to resort to violent protest to ensure that all the people in this country can develop into upright citizens concerned with the welfare of others in the spirit of Ubuntu.
Let us work together to make the Constitution a living document in the lives of all people, regardless of race, gender, and class. The Constitution and the welfare of the people it serves are bigger than all of us put together. Let us, therefore, join hands across the racial divide, between the haves and the have nots, to root out the cancer of corruption, greed and self-aggrandisement that has crippled our democracy. Let us focus on the income disparities we have in this country. Our preoccupation with paying obscenely huge salaries and bonuses to executives and starvation wages to the lowly based workers must come to an end. We must realise that the first step towards addressing our problem is agreeing and paying decent wages, that will enable lowly paid workers to provide appropriate shelter for their families, afford basic commodities of life like food, transport, education, and healthcare to name a few.
Paying decent wages will also give reprieve to workers from the debt trap which results in their redlining by credit grantors and exploitation by unscrupulous labour brokers for example.
We are collectively responsible to ensure that no child goes to bed on an empty stomach. In this way, we will take forward the fight against poverty and inequality that has consigned the homeless and the unemployed to the fringes of society so that at the end of it all we can proudly say that we are an indivisible nation, in one country, under one flag committed to eradicating poverty and inequality. DM/MC
D Mlambo is Judge President of the Gauteng Division of the high court of South Africa and a candidate for appointment as South Africa’s next Chief Justice.
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