On Human Rights Day, KwaZulu-Natal Premier Sihle Zikalala criticised courts for overreach and said, “It is time we should debate whether the country does not need parliamentary democracy where laws enacted by Parliament should be above all and not reviewed by another organ…”  

That’s a call for parliamentary supremacy — the hallmark of the apartheid years, particularly after the 1961 Constitution Act, which stipulated: “No court of law shall be competent to enquire into or to pronounce upon the validity of any Act passed by Parliament.” 

It’s a dangerous, populist call steeped in political expediency. 

Not just for Zikalala, who must contest his (seemingly none too certain) re-election as party chairperson in a provincial ANC conference in two months’ time, but also for the governing ANC nationally heading into policy and national elective conferences later in 2022.

Discussions are set over the separation of power between the executive, national legislature and the judiciary, with a potential focus on so-called judicial overreach, which is ANC shorthand to explain away its failures in governance and government.  

It’s also an ahistorical call by Zikalala. 

South Africa’s constitutional democracy is the result of the ANC holding sway — and entrenching the Bill of Rights, which, like the Freedom Charter, guarantees dignity, equality, human rights and freedoms for everyone, in a Constitution that’s the supreme law, regardless of who is in power. 

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None of this is to say there weren’t debates in the Constituent Assembly’s ANC caucus. There the young Turks ultimately lost their push for including the phrasing “democratic constitutional state” in the preamble in favour of emphasising both the Constitution as South Africa’s supreme law and the commitment to “build a united and democratic South Africa…” 

It was about the important political points needed to ensure the capacity to build a united South Africa, according to one insider of those times.  

It’s plainly incorrect for Zikalala to assert that laws in a parliamentary supremacy could not be reviewed. 

By making such a claim, the ANC politician, alongside his supporters, does disservice to the legions of human rights lawyers who fought the laws Parliament passed in the apartheid years — from Bram Fischer, George Bizos, Godfrey Pitje, Oliver Tambo, Nelson Mandela to Victoria and Griffiths Mxenge and many more. 

And also those judges who leveraged whatever scope there may have been — like technical issues such as not meeting the two-thirds majority in both Houses that initially scuppered the 1951 Separate Representation of Voters Bill, which removed coloured voters’ ability to cast ballots as it was effected in 1956. 

“Parliament has the power to pass the statutes it likes, and there is nothing the courts can do about that. The result is law. But that is not always the same as justice. The only way that Parliament can ever make legislation just is by making just legislation,” said Judge John Didcott in May 1979 when setting aside 24-year-old epileptic Jabulani Dube’s designation as an “idle person”, which would have seen him jailed for no other reason than being unemployed in terms of the Black Urban Areas Consolidation Act.  

And it was parliamentary supremacy that allowed the Sobukwe Clause — officially the 1963 General Law Amendment Act — to be renewed every year to ensure Pan-Africanist Congress leader Robert Sobukwe remained jailed in solitary confinement on Robben Island away from all other political prisoners.

Zikalala’s call on Human Rights Day for parliamentary supremacy would mean the abolition of the Constitution that Nelson Mandela signed into law on 10 December 1996 in Sharpeville in honour of the 69 peaceful anti-pass protesters killed there by apartheid police in 1960 — the massacre commemorated on Human Rights Day.

“Out of the many Sharpevilles which haunt our history was born the unshakable determination that respect for human life, liberty and well-being must be enshrined as rights beyond the power of any force to diminish,” said Mandela then.

Making Parliament supreme and its laws unreviewable would require the abolition of the whole Constitution, including the Bill of Rights. It would be a fundamental shift of South Africa’s democracy — and that entrenchment of rights beyond the whim of whoever was in charge at a particular moment.

Let’s be blunt. The debate Zikalala called for may have caught sections of the ANC unawares. It has not yet taken off, but it may well, as the ANC’s 2022 policy and national elective conferences approach. Focusing on courts as somehow limiting government policy and lawmaking is a convenient obfuscation of government service and transformation failures. 

It would not be a new twist. Talking about judicial overreach, “lawfare”, and calling judges “counter-revolutionaries” goes back to the Jacob Zuma presidency. The then Chief Justice, Mogoeng Mogoeng, requested a meeting, which happened on 27 August 2015, with a joint statement afterwards reiterating “our respect for the separation of powers and the integrity of the two institutions”, as both sides undertook to “exercise care and caution” in comments.

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On Human Rights Day 2022, Zikalala cited two judgments as anti-transformation. He may have hit a political note that resounded with some by putting courts, overreach and anti-transformation together, but he is wrong. 

While AfriForum’s involvement may have rubbed (political) salt into the wounds when the Constitutional Court recently declared the procurement regulations invalid, the judges did not rule against transformation as claimed. 

Pre-qualification on procurement was not permissible, but subsequent evaluation of other objective factors may justify awarding the tender to a low-score bidder. That’s in line with section 217 of the Constitution, which allows “categories of preferences in the allocation of contracts” while setting out an overall system that is “fair, equitable, transparent, competitive and cost-effective”.

Already, the National Treasury has published new procurement regulations for public comment.

While policy and law are interlinked, they are separate governance processes. It’s against this that the Pretoria High Court in September 2021 found the 2018 Mining Charter was not a law-making instrument, but policy, and thus did not permit the minister to link broad-based black economic empowerment shares to mining rights. Essentially, that was lawmaking through the backdoor.

The Department of Mineral Resources and Energy is said to be looking at drafting legislation — and taking it through the required public consultation processes before bringing it to Parliament — to achieve its policy aims of the Mining Charter.

It must grate those who want to do as they wish — from legislation to procurement and more — without challenge. 

The courts have called out shoddy lawmaking, corners cut in governance. And that’s how it must be in a constitutional democracy like South Africa.

The separation of powers means that when the executive fails to do its job and Parliament fails to provide the necessary oversight and checks and balances, the courts are approachable.

“The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice,” says section 165 of the Constitution.

And so courts have upheld people’s rights, whether that’s meaningful consultations and access to information by the community of Xolobeni in their battles against mining on their land, to protection from police entering private homes without search warrants.

And the Constitutional Court has dealt with human rights, from health, housing to land and more, including the seminal March 2016 Nkandla judgment that upheld the Public Protector’s powers, and ruled the National Assembly’s actions were “inconsistent with the Constitution” by replacing remedial actions with its own, effectively absolving Zuma from having to repay anything for the taxpayer-funded security upgrades at his Nkandla homestead.

The October 2000 Grootboom Constitutional Court judgment, named after Irene Grootboom, maintained the state’s obligation to progressively realise the right to decent housing. In July 2002 the Constitutional Court ruled in favour of the Treatment Action Campaign so that nevirapine was provided to pregnant women to prevent mother-to-child transmission of HIV/Aids.

In October 2018 the Constitutional Court, in Maledu and others vs Itereleng Bakgatla, upheld 13 families’ right not just to be evicted by the mining company. 

In a series of judgments, South Africa’s highest court came out in favour of black women’s tenure, property and marriage rights. This included the Constitutional Court ruling for Matshabelle Mary Rahube, who faced eviction from the Mabopane house she had lived in since the 1970s because the former Bantustan ownership rights were vested with her brother under the Upgrading of Land Tenure Rights. 

And its ruling for Durban housewife Agnes Sithole, who challenged the Black Administration Act’s automatic determination of black marriages as out of community of property, effectively depriving women of assets, and the right to claim assets, after years of marriage. And the November 2017 Constitutional Court determination that the 1998 Recognition of Customary Marriages Act had to allow for joint and equal property rights between wives and husbands in polygamous customary marriages that had occurred before that law.

South Africa’s constitutional jurisprudence is not uncontested, but it is fundamentally rule of law and human rights-based.

This comes against the increasing centralisation of power in the Presidency, now dealing with anything from investment, employment stimulus, cutting red tape, the State Security Agency to state-owned enterprises and infrastructure.

It also comes against increasingly pliant conduct in a Parliament where the majority ANC not infrequently relies on numbers to get its way, and on ticking boxes rather than qualitative oversight. While the national legislature can initiate laws through committee draft legislation or Private Members’ Bills, it awaits the drafts from ministers.

In this context, Zikalala’s Human Rights Day call to debate for parliamentary supremacy, which was in place during the apartheid years, unfolds in all its perniciousness — ministers would bring their laws to Parliament to pass at will as no checks and balances of a court review would be possible.

Some circles within the ANC would argue that’s what’s needed to ensure a firm grip on the levers of state power, as the party lingo goes. After all, it’s easier to shift blame to the courts, the opposition and elsewhere rather than do the hard work of fixing governance — at all levels.

The temptation is rife for quick fixes and expedient shortcuts amid a fractured body politic, a factionalised governing ANC and persistent noisy politicking. But South Africa and its constitutional democracy founded on dignity, equality and human freedoms and rights deserve better. DM