The Financial Industry Regulatory Authority said on Thursday that it had fined Barclays Capital $3 million for misrepresenting information about subprime mortgage securities the bank had sold from 2007 to 2010.
Finra, as the nonprofit self-regulator is known, said in a statement that Barclays Capital had provided inaccurate data about the delinquency rates of mortgages packed into three securities. The misrepresentations “contained errors significant enough to affect an investor’s assessment of subsequent securitizations,” according to the agency.
That data was then referenced for five additional subprime securities, the agency said.
“Barclays did not have a system in place to ensure that delinquency data posted on its Web site was accurate,” J. Bradley Bennett, the agency’s enforcement chief, said in a statement. “Therefore, investors were supplied inaccurate information to assess future performance of RMBS investments.”
Barclays Capital neither admitted nor denied wrongdoing, though it consented to the fine. A spokeswoman for the bank declined comment.
Finra has fined several investment banks in the last two years, including Merrill Lynch and Credit Suisse in May and Deutsche Bank in July 2010.
Source: New York Times
Thursday, December 22, 2011
Sunday, December 11, 2011
Durban and the search for climate justice
The COP17/CMP7 summit in Durban which concluded on 11 December reached decisions that can move us towards a legally binding agreement to halt and reverse the path we are currently taking towards catastrophic climate change, but the hopes for a substantial deal on emissions reductions have not been realised. The international community must find an accord with the ambition to limit the global temperature rise to a maximum of 2°C or 1.5°C above pre-industrial levels, which remains the only possible solution to the dangers faced by the world.
In establishing the Ad Hoc Working Group on the Durban Platform for Enhanced Action, the conference rightly concluded that any future agreement on climate change must be legally binding, referred to officially as "an agreed outcome with legal force". It is now more vital than ever that negotiations continue without delay and in a spirit of compromise and understanding in order to make these goals a reality, as the cost of postponing such an agreement grows with every passing year.
With Durban, the framework is also now in place for the operation of the Green Climate Fund with the approval of its Governing Instrument, although long-term sources of financing for the Fund have yet to be finalised. The decision launching the Fund addresses the need to balance the allocation of resources between adaptation and mitigation activities, which is in line with the Socialist International’s call in Johannesburg at the end of October this year.
A positive step is also the commitment that a mechanism for technology transfer will be fully operational by 2012 to "promote and enhance the research, development, and deployment and diffusion of environmentally sound technologies for mitigation and adaptation in developing countries".
We congratulate the South African hosts for showing the leadership and perseverance to obtain these and other agreements, but we are under no illusions that there is much hard work ahead of us all.
It must be acknowledged at the same time that some of the commitments we were hoping to see in Durban on deepening and formalising pledged cuts in emissions, as outlined in the declaration of the Socialist International made in Johannesburg, have not been achieved. Equally, much progress needs to be made on policies for the protection of forests, developing renewable technologies and establishing systems for measurement, reporting and verification, and the decisions reached lack the necessary urgency to effectively address the case of the Small Island Developing States (SIDS).
The international community must persevere within the framework of the UNFCCC to come together in a common search for solutions to the greatest threat that currently faces the planet. Multilateralism continues to be the only way forward, with the vast majority of the nations on the planet wishing to see political will match the scientific requirements and no longer willing to accept ‘pledge and review’, with the direct involvement of political leaders in the process crucial to deliver the responses needed.
The Socialist International will continue to place the issue of climate change at the heart of its agenda, starting with the forthcoming Council meeting to take place in San José, Costa Rica in January 2012 and continuing with the work and activities of its Commission for a Sustainable World Society as we head towards Rio+20, COP18 and beyond.
Source: Socialist International
In establishing the Ad Hoc Working Group on the Durban Platform for Enhanced Action, the conference rightly concluded that any future agreement on climate change must be legally binding, referred to officially as "an agreed outcome with legal force". It is now more vital than ever that negotiations continue without delay and in a spirit of compromise and understanding in order to make these goals a reality, as the cost of postponing such an agreement grows with every passing year.
With Durban, the framework is also now in place for the operation of the Green Climate Fund with the approval of its Governing Instrument, although long-term sources of financing for the Fund have yet to be finalised. The decision launching the Fund addresses the need to balance the allocation of resources between adaptation and mitigation activities, which is in line with the Socialist International’s call in Johannesburg at the end of October this year.
A positive step is also the commitment that a mechanism for technology transfer will be fully operational by 2012 to "promote and enhance the research, development, and deployment and diffusion of environmentally sound technologies for mitigation and adaptation in developing countries".
We congratulate the South African hosts for showing the leadership and perseverance to obtain these and other agreements, but we are under no illusions that there is much hard work ahead of us all.
It must be acknowledged at the same time that some of the commitments we were hoping to see in Durban on deepening and formalising pledged cuts in emissions, as outlined in the declaration of the Socialist International made in Johannesburg, have not been achieved. Equally, much progress needs to be made on policies for the protection of forests, developing renewable technologies and establishing systems for measurement, reporting and verification, and the decisions reached lack the necessary urgency to effectively address the case of the Small Island Developing States (SIDS).
The international community must persevere within the framework of the UNFCCC to come together in a common search for solutions to the greatest threat that currently faces the planet. Multilateralism continues to be the only way forward, with the vast majority of the nations on the planet wishing to see political will match the scientific requirements and no longer willing to accept ‘pledge and review’, with the direct involvement of political leaders in the process crucial to deliver the responses needed.
The Socialist International will continue to place the issue of climate change at the heart of its agenda, starting with the forthcoming Council meeting to take place in San José, Costa Rica in January 2012 and continuing with the work and activities of its Commission for a Sustainable World Society as we head towards Rio+20, COP18 and beyond.
Source: Socialist International
Friday, December 9, 2011
Power, patronage and the provinces
Say what you like about the politics of the national government's intervention in three provinces, one thing is clear: a scaled-down analogue of the eurozone crisis is unfolding within the borders of South Africa. Limpopo literally ran out of money three weeks ago, maxing out its overdraft at the Corporation for Public Deposits and exceeding its half-a-billion-rand facility at First National Bank. The treasury had to move forward its payment on one of the province's regular tranches of funding so that teachers and nurses could be paid.
The province blames unexpected increases in civil service wages and the implementation of the occupation-specific dispensation for health workers. These were provided for at central level, but seem to have been implemented amid real confusion and, on a charitable interpretation, unexpected wage payments in a context of rampant corruption and mismanagement may have finally tipped the provincial fiscus over the edge.
The treasury effected a hostile takeover of the Limpopo this week, placing five key departments under administration. To all intents and purposes the province has been stripped of its basic functions. Premier Cassel Mathale is now a figurehead, presiding over a shell of a government run from Pretoria. No doubt the emergency was real and drastic intervention was warranted, but there is no escaping the fact that the move deprives one of President Jacob Zuma's most important opponents of almost all his power and, crucially, of his patronage machinery.
Supporters of Mathale, Julius Malema and Sports Minister Fikile Mbalula are fuming over the coup, which they insist is driven purely by politics. They point to other provinces with large overdrafts and rickety finances that have not suffered the same fate. There is no gainsaying the political advantage secured by Zuma with this move, but Mathale and his government opened themselves up to it by allowing Limpopo's finances to deteriorate beyond the mere mess we have come to expect into real crisis.
In contrast to the takeover of Limpopo moves to stabilise the finances of Gauteng and the Free State, with their Zuma-aligned premiers, look more like friendly bailouts. Gauteng, despite a health service that the treasury described to Cabinet as being in "disarray", will be dealt with via an "agreement" between the province and the national government. And in the profligate, but less disastrous, Free State the intervention is limited to the roads department. Those Gauteng projects that do face major cutbacks date from the tenure as finance MEC of Paul Mashatile, another Zuma opponent. Premier Nomvula Mokonyane, who is at loggerheads with Mashatile, may not be very sorry to see them trimmed or abandoned.
The politics then are real and they are vicious, but so are the impacts of mismanagement, and they stretch deep into other provinces. KwaZulu-Natal and the North West are said by the treasury to be on track for recovery. Meanwhile, in municipalities across the country similar failures are compromising access to clean water, basic infrastructure and housing.
As the treasury warned Cabinet on Monday: "Non-delivery and slow delivery of services poses a security risk for the country." That is a welcome recognition but, if risk is really to be diminished, interventions from the centre will have to move beyond politics.
Source: Mail & Guardian
The province blames unexpected increases in civil service wages and the implementation of the occupation-specific dispensation for health workers. These were provided for at central level, but seem to have been implemented amid real confusion and, on a charitable interpretation, unexpected wage payments in a context of rampant corruption and mismanagement may have finally tipped the provincial fiscus over the edge.
The treasury effected a hostile takeover of the Limpopo this week, placing five key departments under administration. To all intents and purposes the province has been stripped of its basic functions. Premier Cassel Mathale is now a figurehead, presiding over a shell of a government run from Pretoria. No doubt the emergency was real and drastic intervention was warranted, but there is no escaping the fact that the move deprives one of President Jacob Zuma's most important opponents of almost all his power and, crucially, of his patronage machinery.
Supporters of Mathale, Julius Malema and Sports Minister Fikile Mbalula are fuming over the coup, which they insist is driven purely by politics. They point to other provinces with large overdrafts and rickety finances that have not suffered the same fate. There is no gainsaying the political advantage secured by Zuma with this move, but Mathale and his government opened themselves up to it by allowing Limpopo's finances to deteriorate beyond the mere mess we have come to expect into real crisis.
In contrast to the takeover of Limpopo moves to stabilise the finances of Gauteng and the Free State, with their Zuma-aligned premiers, look more like friendly bailouts. Gauteng, despite a health service that the treasury described to Cabinet as being in "disarray", will be dealt with via an "agreement" between the province and the national government. And in the profligate, but less disastrous, Free State the intervention is limited to the roads department. Those Gauteng projects that do face major cutbacks date from the tenure as finance MEC of Paul Mashatile, another Zuma opponent. Premier Nomvula Mokonyane, who is at loggerheads with Mashatile, may not be very sorry to see them trimmed or abandoned.
The politics then are real and they are vicious, but so are the impacts of mismanagement, and they stretch deep into other provinces. KwaZulu-Natal and the North West are said by the treasury to be on track for recovery. Meanwhile, in municipalities across the country similar failures are compromising access to clean water, basic infrastructure and housing.
As the treasury warned Cabinet on Monday: "Non-delivery and slow delivery of services poses a security risk for the country." That is a welcome recognition but, if risk is really to be diminished, interventions from the centre will have to move beyond politics.
Source: Mail & Guardian
EThekwini Mayor Councillor James Nxumalo Officially Introduced The New City Manager
EThekwini Mayor Councillor James Nxumalo officially introduced the new City Manager Mr Sibusiso Sithole to the media at a news conference held at City Hall this morning.
Sithole’s appointment was announced in December shortly after the Council took a unanimous decision that he should take over the baton from his predecessor, Dr Mike Sutcliffe. But this morning he was meeting the media for the first time where he outlined his vision and plans that would take the City forward.
After briefing senior managers at a breakfast meeting also held at the City Hall, Sithole then delivered a similar message to the media- of shaping things up in the Municipality, saying that he was under no illusion that his acceptance of the mammoth responsibility carries with it a plethora of challenges.
“We are keenly aware that the hopes and dreams of millions of people of our City, especially the poorest of the poor and indeed throughout the province and the country as a whole stand either to be realised or deferred through this appointment. Secondly we are not oblivious to the reality that the environment within and outside the Municipality, within which we shall be operating is characterised by volatility and high velocity of changes, which carry with them many paradoxes of opportunities for development and risks that must be managed at the same time,” Sithole said.
He also acknowledged the role played by his predecessor, Sutcliffe for allowing a smooth transition. Sithole admitted that he was inheriting a City that is stable and sound financially and that has set a record for spending on capital and operating budgets, saying that he was also promising to build on the foundation laid by Sutcliffe.
He mentioned 13 issues that are urgent and need to be prioritised. Those issues were:
* To facilitate participation around the Integrated Development Plan and the Medium-Term Revenue and Expenditure Framework, including Tariffs Model and all Budget Policies
* To develop Project Management Framework for accelerating the implementation of sustainable service delivery and human settlement solutions.
* To embark on a process of reviewing the status of the economy of the City and development proposal s to improve the City’s National and Global competitiveness; and institutional models for investment attraction and retention and branding.
* To develop a concept of a City Region with sister municipalities of KwaDukuza, Msunduzi and Hibiscus Coast in particular with a view to facilitating corridor development along the N2 and N3 gateway.
* To define the City’s role in the expansion of the port.
* To table the 2010/2011 Annual Report, which includes the Auditor-General’s report and to facilitating an oversight report around it.
* To finalise the implementation of the Revenue Management System.
* To act swiftly around the recommendations of the report of Manase and Associates into allegations of supply chain irregularities once the MEC of Cogta, Ms Nomusa Dube, has released its findings.
* To review supply chain management processes with a view to find a sustainable broad based black empowerment model.
* To finalise issues pertaining to Durban Transport within the framework of integrated transport system.
* To conclude decisions about AFD loan application.
* To respond to all pending legal issues and contingent liabilities; and
* To work with the Auditor General and the City’s Audit Committee to strengthen internal controls and the strategic and operational risk management process, towards a clean audit outcomes.
Sithole also promised unity in all the people of the City across racial, religious, political formations.
Introducing Sithole to the media, Nxumalo said he is a man with many accolades in Local Government. “As most of you would know, Mr Sithole is not a new comer to eThekwini, and in the Local Government administration. He worked as the Deputy City Manager between 2001 and 2002, and he spent part of that experience as Acting City Manager for eThekwini following the untimely death of Mr Felix Dlamini,” said Nxumalo.
Sithole joins eThekwini Municipality from the Msunduzi Municipality where he was deployed by the Provincial Cabinet as an Administrator; and he has held similar posts at Indaka and uMhlabuyalingana Municipalities.
His local government experience goes as far back as 1996 when he was Deputy CEO and later CEO of the North and South Central Local Council. Between 2003 and 2008 he did consulting work for both public and private sector; including general consulting on Local Government. He has also worked as General Manager: Corporate Services at Umgeni Water.
Amongst the educational qualifications, he holds a
* Master of Business Leadership (MBL): 2009 (UNISA School of Business Leadership);
* Master of Education (Policy & Planning): 1996 (Manchester University, UK)
* Post-Graduate Diploma Industrial Relations: 1993 (Natal University, Durban)
* B.PROC. (Law) 1991 (Natal University, Durban)
Source: eThekwini Municipality’s Communications Unit
Sithole’s appointment was announced in December shortly after the Council took a unanimous decision that he should take over the baton from his predecessor, Dr Mike Sutcliffe. But this morning he was meeting the media for the first time where he outlined his vision and plans that would take the City forward.
After briefing senior managers at a breakfast meeting also held at the City Hall, Sithole then delivered a similar message to the media- of shaping things up in the Municipality, saying that he was under no illusion that his acceptance of the mammoth responsibility carries with it a plethora of challenges.
“We are keenly aware that the hopes and dreams of millions of people of our City, especially the poorest of the poor and indeed throughout the province and the country as a whole stand either to be realised or deferred through this appointment. Secondly we are not oblivious to the reality that the environment within and outside the Municipality, within which we shall be operating is characterised by volatility and high velocity of changes, which carry with them many paradoxes of opportunities for development and risks that must be managed at the same time,” Sithole said.
He also acknowledged the role played by his predecessor, Sutcliffe for allowing a smooth transition. Sithole admitted that he was inheriting a City that is stable and sound financially and that has set a record for spending on capital and operating budgets, saying that he was also promising to build on the foundation laid by Sutcliffe.
He mentioned 13 issues that are urgent and need to be prioritised. Those issues were:
* To facilitate participation around the Integrated Development Plan and the Medium-Term Revenue and Expenditure Framework, including Tariffs Model and all Budget Policies
* To develop Project Management Framework for accelerating the implementation of sustainable service delivery and human settlement solutions.
* To embark on a process of reviewing the status of the economy of the City and development proposal s to improve the City’s National and Global competitiveness; and institutional models for investment attraction and retention and branding.
* To develop a concept of a City Region with sister municipalities of KwaDukuza, Msunduzi and Hibiscus Coast in particular with a view to facilitating corridor development along the N2 and N3 gateway.
* To define the City’s role in the expansion of the port.
* To table the 2010/2011 Annual Report, which includes the Auditor-General’s report and to facilitating an oversight report around it.
* To finalise the implementation of the Revenue Management System.
* To act swiftly around the recommendations of the report of Manase and Associates into allegations of supply chain irregularities once the MEC of Cogta, Ms Nomusa Dube, has released its findings.
* To review supply chain management processes with a view to find a sustainable broad based black empowerment model.
* To finalise issues pertaining to Durban Transport within the framework of integrated transport system.
* To conclude decisions about AFD loan application.
* To respond to all pending legal issues and contingent liabilities; and
* To work with the Auditor General and the City’s Audit Committee to strengthen internal controls and the strategic and operational risk management process, towards a clean audit outcomes.
Sithole also promised unity in all the people of the City across racial, religious, political formations.
Introducing Sithole to the media, Nxumalo said he is a man with many accolades in Local Government. “As most of you would know, Mr Sithole is not a new comer to eThekwini, and in the Local Government administration. He worked as the Deputy City Manager between 2001 and 2002, and he spent part of that experience as Acting City Manager for eThekwini following the untimely death of Mr Felix Dlamini,” said Nxumalo.
Sithole joins eThekwini Municipality from the Msunduzi Municipality where he was deployed by the Provincial Cabinet as an Administrator; and he has held similar posts at Indaka and uMhlabuyalingana Municipalities.
His local government experience goes as far back as 1996 when he was Deputy CEO and later CEO of the North and South Central Local Council. Between 2003 and 2008 he did consulting work for both public and private sector; including general consulting on Local Government. He has also worked as General Manager: Corporate Services at Umgeni Water.
Amongst the educational qualifications, he holds a
* Master of Business Leadership (MBL): 2009 (UNISA School of Business Leadership);
* Master of Education (Policy & Planning): 1996 (Manchester University, UK)
* Post-Graduate Diploma Industrial Relations: 1993 (Natal University, Durban)
* B.PROC. (Law) 1991 (Natal University, Durban)
Source: eThekwini Municipality’s Communications Unit
Thursday, December 8, 2011
Upping the ante, 8ta extends 10GB loss leader
The loss-leading broadband special offer from 8ta, its 10GB of data for R199/month package, has been extended until mid-2012, it said on Thursday. The product, which is only available on a 24-month contract, has been in the market since June.
The 10GB package remains the cheapest capped mobile broadband offering in SA, with an effective cost-per-megabyte of less than 2c. For an additional R100/month, users can get an additional 10GB to be used between midnight and 5am.
It had been expected that the special offer would only be in the market for a few months. 8ta, which is owned by Telkom, is able to offer the low-cost package because, unlike its rivals, its network is still relatively empty. The offer only applies to users in 8ta coverage zones and does not extend to those roaming onto the MTN network.
Telkom launched 8ta, SA’s fourth mobile network operator, in 2010.
Source: TechCentral
The 10GB package remains the cheapest capped mobile broadband offering in SA, with an effective cost-per-megabyte of less than 2c. For an additional R100/month, users can get an additional 10GB to be used between midnight and 5am.
It had been expected that the special offer would only be in the market for a few months. 8ta, which is owned by Telkom, is able to offer the low-cost package because, unlike its rivals, its network is still relatively empty. The offer only applies to users in 8ta coverage zones and does not extend to those roaming onto the MTN network.
Telkom launched 8ta, SA’s fourth mobile network operator, in 2010.
Source: TechCentral
Wednesday, December 7, 2011
Court orders release of asylum seekers
The department of home affairs in Cape Town has been issued with a high court order to release asylum seekers who have been detained illegally. According to ProBono.net, home affairs in Durban and Cape Town have been involved in a scheme where asylum seekers are lured to department offices under the pretence that they should collect documents. They are then arrested and detained before facing deportation.
The Cape High Court on Monday issued a ruling that arrested asylum seekers be immediately released. The department's procedure is usually to give those who fail to qualify for asylum in South Africa a 30-day period during which they should leave of their own accord. Only when this is not done would deportation procedures begin.
The department in Durban was given the relevant documents by lawyers acting for the asylum seekers but authorities allegedly failed to bring them to court and have refused to release the group currently housed at Westville Prison.
Source: Mail & Guardian
The Cape High Court on Monday issued a ruling that arrested asylum seekers be immediately released. The department's procedure is usually to give those who fail to qualify for asylum in South Africa a 30-day period during which they should leave of their own accord. Only when this is not done would deportation procedures begin.
The department in Durban was given the relevant documents by lawyers acting for the asylum seekers but authorities allegedly failed to bring them to court and have refused to release the group currently housed at Westville Prison.
Source: Mail & Guardian
Who is on your side?
CONSUMERS had mixed blessings this year, highlighted by the establishment of the Consumer Commissioner, and some service providers defying the new Consumer Protection Act. Some service providers treated consumers as if the Act affected only those who did business with them. But let's face it the Consumer Protection Act is here to stay and it affects us all. And in many ways the Act wants your business to be successful.
The motor industry has been problematic this year. Consumers complained that they were sold defective cars, and service providers refused to exchange the cars for new ones after failing to repair them as required by the Act. Mercedes-Benz disappointed a customer when it refused to service a car that had clocked 120000km.
The car had only exceeded the serviceable kilometres by 671km and the customer knew that he was allowed a leeway of 1500km to benefit from the motor plan. He almost parted with R21385, but after Consumer Line's intervention, the luxury car dealership reconsidered its decision and serviced the vehicle at no cost. In an extreme case, an official at the Rosebank dealership was accused of assaulting a client, Jolin Majmin, who complained about poor service after paying R17000. Majmin also claimed that his car was damaged after the dealership drove it for more than 70km while it was in their care. Mercedes-Benz SA is still investigating the complaint.
Thanks to Absa for refunding pensioner Nikki Diale her R116000 investment that was fraudulently withdrawn from her account in January. Diale was refunded after Consumer Line intervened.
A first-time car buyer, Ayanda Vumazonke, who cancelled her contract to purchase within the 10-day cooling off period, was refunded her R80000, also thanks to intervention by Consumer Line. The director of Velocity Cars in Canal Walk in Athlone, Cape Town, wanted to charge Vumazonke a cancellation fee of R6000 and additional fees of R3000 for a broken windscreen and radio even though they had not been fitted.
Another Consumer Line success yielded a R1-million handover to a road accident victim. Jabulile Mathebula was awarded R1464385 in June last year after a four-year legal battle. Her second hurdle was to get the money from her attorney, who had invested it without notifying her parents or passing it on to the curator of Mathebula's fund.
In another success, FNB refunded Jacky Nkohla his R3000 after initially refusing to do so, claiming it was a phishing scam.
To consumers, stick to your budgets, read your contracts before signing, and those fortunate enough to receive a bonus this December, you should consider putting a portion of your 13th cheque towards paying off your debts before indulging in festive season spending.
From Consumer Line we wish you a warm and joy-filled Christmas and Happy New Year. This Consumer service will re-open on January 11 2012.
Source: Mail & Guardian
The motor industry has been problematic this year. Consumers complained that they were sold defective cars, and service providers refused to exchange the cars for new ones after failing to repair them as required by the Act. Mercedes-Benz disappointed a customer when it refused to service a car that had clocked 120000km.
The car had only exceeded the serviceable kilometres by 671km and the customer knew that he was allowed a leeway of 1500km to benefit from the motor plan. He almost parted with R21385, but after Consumer Line's intervention, the luxury car dealership reconsidered its decision and serviced the vehicle at no cost. In an extreme case, an official at the Rosebank dealership was accused of assaulting a client, Jolin Majmin, who complained about poor service after paying R17000. Majmin also claimed that his car was damaged after the dealership drove it for more than 70km while it was in their care. Mercedes-Benz SA is still investigating the complaint.
Thanks to Absa for refunding pensioner Nikki Diale her R116000 investment that was fraudulently withdrawn from her account in January. Diale was refunded after Consumer Line intervened.
A first-time car buyer, Ayanda Vumazonke, who cancelled her contract to purchase within the 10-day cooling off period, was refunded her R80000, also thanks to intervention by Consumer Line. The director of Velocity Cars in Canal Walk in Athlone, Cape Town, wanted to charge Vumazonke a cancellation fee of R6000 and additional fees of R3000 for a broken windscreen and radio even though they had not been fitted.
Another Consumer Line success yielded a R1-million handover to a road accident victim. Jabulile Mathebula was awarded R1464385 in June last year after a four-year legal battle. Her second hurdle was to get the money from her attorney, who had invested it without notifying her parents or passing it on to the curator of Mathebula's fund.
In another success, FNB refunded Jacky Nkohla his R3000 after initially refusing to do so, claiming it was a phishing scam.
To consumers, stick to your budgets, read your contracts before signing, and those fortunate enough to receive a bonus this December, you should consider putting a portion of your 13th cheque towards paying off your debts before indulging in festive season spending.
From Consumer Line we wish you a warm and joy-filled Christmas and Happy New Year. This Consumer service will re-open on January 11 2012.
Source: Mail & Guardian
Friday, December 2, 2011
Nationalism, not nationalisation
If I were a betting person, which I'm not, I would say that the centrepiece of the ANC's approach to managing the mineral resources of the country will be a resource rent tax (RRT). A research committee investigating the role of the state in the management of the country's mineral resources has completed its study but, according to ANC secretary general Gwede Mantashe, the report has been sent back to the authors to ensure that it is written in accessible language.
The research is in response to calls for the nationalisation of the mines by ANC Youth League revolutionary-turned-cattle-farmer Julius Malema. The committee has studied best practice in 13 countries. Its report has yet to be made public but the outlines of its content have begun to emerge.
At the least, it will seek a more activist role for the state in the management of the country's $2.5-trillion of unmined resources. This continues to be cast as nationalisation but, more accurately, can be thought of as nationalism: the question is how the state can ensure that the country extracts the maximum benefit from its resource base.
Two of the heaviest hitters in the commodities market, Ivan Glasenberg of Glencore and Tom Albanese of Rio Tinto, with combined annual global revenues of $240-billion last year, have in recent months singled out resource nationalism as a key potential risk to their businesses.
My understanding is that a key finding by the ANC's research team is that state intervention in the minerals sector internationally is the norm rather than the exception. This will no doubt challenge conventional market-based theory that holds that the state should limit its role to providing infrastructure and good governance such as in the issuing of mining licences.
You have to note that the ANC-run government has not covered itself in glory on this point. It reformed the old system in which "big mining" grabbed as many of these rights as possible and then, in some cases, sat on them as though they were a God-given right. But the new system has suffered from a lack of transparency and has, apparently, such as is the case in the Kumba/ArcelorMittal deal, been used to take a nice chunk of the Sishen iron-ore mine and transfer it to the first family and its cronies.
The RRT is best known as a controversial tax that former Australian prime minister Kevin Rudd wanted to introduce. It led to his undoing, but his successor, Julia Gillard, has recently passed the tax into law, albeit at a much lower tax rate than that envisaged by Rudd. The Australians intend using the RRT's proceeds, about R88-billion over four years, to build new infrastructure and cut taxes on higher value-added, job-creating secondary industries.
The idea is that this will help to combat the continuing deindustralisation of the Australian economy and help prepare the economy for the days when natural resources have been depleted. The fact that BHP Billiton earlier this year posted a record profit of $24-billion on revenue of $71-billion and taxes of $7-billion no doubt helped the passage of the bill. The RRT is an additional tax imposed on profit over and above all other taxes. As such, it is a kind of a windfall tax. These are much better known. The United Kingdom, for instance, has had such a tax on the North Sea gasfields. Many oil-producing countries have similar taxes, the authorities sometimes taking the lion's share of profit in taxes. Ghana this week announced a windfall tax on minerals, saying it was part of a move to equalise taxes on mining and oil companies. The tax, which Bloomberg reported is supported by the International Monetary Fund, will be set at 10% of profit after company tax, which has recently been raised from 25% to 35%.
"Ghana, Africa's second-biggest gold producer, will set up a publicly traded company to manage the country's revenue from the precious metal, including profit from a planned windfall tax and higher corporate tariffs," Bloomberg reported. "The Ghana Gold company will be majority owned by the West African nation's government and will list shares on the Ghana Stock Exchange," Newman Kusi, an adviser to Finance Minister Kwabena Duffuor, told Bloomberg.
It is understood that the International Monetary Fund is supportive of resource taxes if they are well designed and do not operate as a disincentive to investment. It supported Australian initiatives to implement its resource tax and is likely to take an interest in moves by South Africa to introduce such a tax here. A high-profile supporter of resource taxes is Nobel laureate Joseph Stiglitz, who last year said Australian miners had been too influential in shaping the debate about resource taxes.'"The natural resources belong to the people,'' he said. "You need to have a well-designed competitive auction to have different companies compete so that companies get the necessary returns to do the investment, but the surplus goes to the Australian people," Stiglitz said, as reported by The Age.
Documents published on the ANC's website, including that by Paul Jordaan, a researcher on the panel investigating economic options for the state, have suggested that resource taxes can realise most if not all of the outcomes listed by pro-nationalisation pundits, including increased revenue for the fiscus and greater equity from the proceeds of scarce resources, without exposing the economy to the great risks nationalisation would bring. Also apparently mooted in the yet-to-be-released ANC's economic policy documents are export taxes on some minerals, which could be used to incentivise the local beneficiation of minerals. The idea would be to attract industries to source their inputs domestically at the lower local price.
Word is that the ANC's research indicates that as much as R40-billion could be realised annually from a RRT, that is about 40% of the current R104-billion budget deficit. There is debate about whether local miners would be able to pass on higher taxes to end users, but some of our smartest economists see this in simple terms: we give away our minerals too cheaply, exchanging a declining resource for oil and other imports that we use to fuel our lifestyles. In an ideal world, we would earn more for our resources, at least while the commodity boom fuelled by the rapid growth of China and India continues, perhaps even sufficient to run a trade surplus rather than a deficit. In this scenario, we could move from being a debtor nation to a creditor one, with cheaper money as there would be less need to keep rates high to attract foreign money.
The counter argument, though, is that, should the state get its intervention wrong and mess up key prices, it could put the economy at significant risk. The fact that our parastatals have been poor performers adds weight to this argument. If you cannot run utilities in transport, energy and tele-communications, are you really up for interventionist strategies to raise mineral prices?
Another argument against resource taxes is that the state can get used to the windfalls and will not spend these revenues wisely and sustainably. The counter argument to this, as noted by the Australians, is that the benefits should accrue not to the fiscus but to a stabilisation fund, which then smooths out the dividend flow to the state.
It is understood that the ANC proposals favour establishing a sovereign fund from some of the proceeds, the idea being that these funds are invested offshore to help keep the currency competitive. One of the economic risks is that the state has been unwilling to bring in the private sector to help develop infrastructure. We are yet to hear how the proceeds of possible windfall taxes will be used but, if it means a bigger state with more money to spend rather than lower taxes on jobcreating businesses, we could end up back at square one.
Source: Mail & Guardian
The research is in response to calls for the nationalisation of the mines by ANC Youth League revolutionary-turned-cattle-farmer Julius Malema. The committee has studied best practice in 13 countries. Its report has yet to be made public but the outlines of its content have begun to emerge.
At the least, it will seek a more activist role for the state in the management of the country's $2.5-trillion of unmined resources. This continues to be cast as nationalisation but, more accurately, can be thought of as nationalism: the question is how the state can ensure that the country extracts the maximum benefit from its resource base.
Two of the heaviest hitters in the commodities market, Ivan Glasenberg of Glencore and Tom Albanese of Rio Tinto, with combined annual global revenues of $240-billion last year, have in recent months singled out resource nationalism as a key potential risk to their businesses.
My understanding is that a key finding by the ANC's research team is that state intervention in the minerals sector internationally is the norm rather than the exception. This will no doubt challenge conventional market-based theory that holds that the state should limit its role to providing infrastructure and good governance such as in the issuing of mining licences.
You have to note that the ANC-run government has not covered itself in glory on this point. It reformed the old system in which "big mining" grabbed as many of these rights as possible and then, in some cases, sat on them as though they were a God-given right. But the new system has suffered from a lack of transparency and has, apparently, such as is the case in the Kumba/ArcelorMittal deal, been used to take a nice chunk of the Sishen iron-ore mine and transfer it to the first family and its cronies.
The RRT is best known as a controversial tax that former Australian prime minister Kevin Rudd wanted to introduce. It led to his undoing, but his successor, Julia Gillard, has recently passed the tax into law, albeit at a much lower tax rate than that envisaged by Rudd. The Australians intend using the RRT's proceeds, about R88-billion over four years, to build new infrastructure and cut taxes on higher value-added, job-creating secondary industries.
The idea is that this will help to combat the continuing deindustralisation of the Australian economy and help prepare the economy for the days when natural resources have been depleted. The fact that BHP Billiton earlier this year posted a record profit of $24-billion on revenue of $71-billion and taxes of $7-billion no doubt helped the passage of the bill. The RRT is an additional tax imposed on profit over and above all other taxes. As such, it is a kind of a windfall tax. These are much better known. The United Kingdom, for instance, has had such a tax on the North Sea gasfields. Many oil-producing countries have similar taxes, the authorities sometimes taking the lion's share of profit in taxes. Ghana this week announced a windfall tax on minerals, saying it was part of a move to equalise taxes on mining and oil companies. The tax, which Bloomberg reported is supported by the International Monetary Fund, will be set at 10% of profit after company tax, which has recently been raised from 25% to 35%.
"Ghana, Africa's second-biggest gold producer, will set up a publicly traded company to manage the country's revenue from the precious metal, including profit from a planned windfall tax and higher corporate tariffs," Bloomberg reported. "The Ghana Gold company will be majority owned by the West African nation's government and will list shares on the Ghana Stock Exchange," Newman Kusi, an adviser to Finance Minister Kwabena Duffuor, told Bloomberg.
It is understood that the International Monetary Fund is supportive of resource taxes if they are well designed and do not operate as a disincentive to investment. It supported Australian initiatives to implement its resource tax and is likely to take an interest in moves by South Africa to introduce such a tax here. A high-profile supporter of resource taxes is Nobel laureate Joseph Stiglitz, who last year said Australian miners had been too influential in shaping the debate about resource taxes.'"The natural resources belong to the people,'' he said. "You need to have a well-designed competitive auction to have different companies compete so that companies get the necessary returns to do the investment, but the surplus goes to the Australian people," Stiglitz said, as reported by The Age.
Documents published on the ANC's website, including that by Paul Jordaan, a researcher on the panel investigating economic options for the state, have suggested that resource taxes can realise most if not all of the outcomes listed by pro-nationalisation pundits, including increased revenue for the fiscus and greater equity from the proceeds of scarce resources, without exposing the economy to the great risks nationalisation would bring. Also apparently mooted in the yet-to-be-released ANC's economic policy documents are export taxes on some minerals, which could be used to incentivise the local beneficiation of minerals. The idea would be to attract industries to source their inputs domestically at the lower local price.
Word is that the ANC's research indicates that as much as R40-billion could be realised annually from a RRT, that is about 40% of the current R104-billion budget deficit. There is debate about whether local miners would be able to pass on higher taxes to end users, but some of our smartest economists see this in simple terms: we give away our minerals too cheaply, exchanging a declining resource for oil and other imports that we use to fuel our lifestyles. In an ideal world, we would earn more for our resources, at least while the commodity boom fuelled by the rapid growth of China and India continues, perhaps even sufficient to run a trade surplus rather than a deficit. In this scenario, we could move from being a debtor nation to a creditor one, with cheaper money as there would be less need to keep rates high to attract foreign money.
The counter argument, though, is that, should the state get its intervention wrong and mess up key prices, it could put the economy at significant risk. The fact that our parastatals have been poor performers adds weight to this argument. If you cannot run utilities in transport, energy and tele-communications, are you really up for interventionist strategies to raise mineral prices?
Another argument against resource taxes is that the state can get used to the windfalls and will not spend these revenues wisely and sustainably. The counter argument to this, as noted by the Australians, is that the benefits should accrue not to the fiscus but to a stabilisation fund, which then smooths out the dividend flow to the state.
It is understood that the ANC proposals favour establishing a sovereign fund from some of the proceeds, the idea being that these funds are invested offshore to help keep the currency competitive. One of the economic risks is that the state has been unwilling to bring in the private sector to help develop infrastructure. We are yet to hear how the proceeds of possible windfall taxes will be used but, if it means a bigger state with more money to spend rather than lower taxes on jobcreating businesses, we could end up back at square one.
Source: Mail & Guardian
ANC's resource nationalism
The ANC will push for a new interventionist economic nationalism, rather than a simplistic nationalisation of the country's $2.5-trillion in resources not yet mined, which was what ANC Youth League leader Julius Malema had wanted.
The Mail & Guardian has learned from various sources that central to this plan is to force competitive input prices through taxes and other penalties and for state institutions to take bigger stakes in companies that hold key strategic infrastructure minerals. Every producer or miner of critical feeder stocks that are used in manufacturing -- from steel, fertiliser, coal, platinum, polymers and copper to cement will be targeted for these types of intervention.
The radical proposals are contained in three discussion reports that the researchers handed to ANC secretary general Gwede Mantashe and the head of the ANC economic transformation committee, Enoch Godongwana, two weeks ago. The documents are still to be debated and vetted by the ANC national executive committee before the party can showcase it at its policy conference in June next year.
The first discussion document deals with economic policy and globalisation; the second discusses how state-owned enterprises and development finance institutions can partner with savings industry funds for new infrastructure; and the third investigates nationalisation as an option for ways the state can intervene to benefit from mineral wealth.
Although resource nationalism is seen by some economists as a killer of investment, the ANC's research team that looked at the option indicates that state intervention in the minerals sector internationally is the norm rather than the exception. The team visited 13 countries around the globe as part of their research. Its idea is to use South Africa's resources sector to spur the creation of a thriving manufacturing industry that can drive growth and create jobs.
An option mooted is for state institutions and unions collectively to increase their shareholding in companies such as petrochemicals giant Sasol and steel conglomerate ArcelorMittal South Africa. The view is that these companies, which were once state entities, have strategic input assets that are used in manufacturing, but they are now engaging in predatory pricing and monopolistic activity that stifles competition and growth. "It's more about the alternatives to nationalisation and greater state intervention," Godongwana told the M&G this week. "The state needs to get a better share of these very high prices being charged."
The Public Investment Corporation, which has R1-trillion in assets, and the Industrial Development Corporation together own 26% of Sasol. The proposal is that union investment funds should be used to increase this stake to 51%. As controlling shareholders the state-cum-union would then be able to fix Sasol's prices at rates more beneficial to the economy.
To nationalise, on the other hand, would be highly expensive. Sasol, for example, could cost the state more than R50-billion and ArcelorMittal about R8-billion.
Some of the other options on the table in terms of state interventions on mineral assets are:
* An exports tax on raw minerals as an incentive for companies to beneficiate in South Africa and grow the country's manufacturing capacity. It is a more protectionist approach, one which many other countries have followed, especially in these uncertain economic conditions. But the export tax is exactly the same as the royalties tax, which is based on revenues. The suggestion then is for the royalties tax to be either adjusted or scrapped.
* A resources rent tax, similar to the Australian model, which is based on profits.
* All strategic minerals will have pricing conditions. There is a recommendation to amend the Minerals and Petroleum Resources Development Act to give the minister power to attach conditions to existing and new licences that will force companies such as Sasol to charge a lower export parity-related price than downstream producers would pay in China, for example. These price conditions would have to be imposed by Sasol on their buyers to which they on-sell.
* Strengthen the Competition Act further to allow for stiffer penalties.
* Increase competition in sectors by bringing in an Asian competitor, for example, that will be partly funded by state institutions, such as the Industrial Development Corporation, to challenge monopolies. The same price conditions, however, will apply to the new player.
* Use electricity, rail and port tariffs to force monopolies to lower prices. One recommendation is that Eskom introduce a surcharge on electricity tariffs for Sasol, for example, as a way of disciplining the petrochemicals giant in terms of its higher prices.
* Instead of nationalising Kumba Iron Ore, a proposal is to introduce a user-pay concession on the rail link from its main Sishen mine in the Northern Cape to allow it to export more iron ore. Kumba could build and operate the line for about 15 years and then transfer it to Transnet.
* In the copper industry there are reserves for only another eight years. The state, through the Industrial Development Corporation, is already bidding to buy Rio Tinto's Phalaborwa Mining Company -- South Africa's only refined-copper producer -- which it could merge with state-owned Foskor.
Many of the proposals tie in with the government's broader goals to stimulate the country's industrial base as a way to meet the national growth path's target of five million jobs by 2020. But last weekend Mantashe sent the report on state interventions back to the drawing board, saying it needed to be rewritten in simpler language and case studies of other countries included.
Said Godongwana: "The report must capture the experiences of the 13 countries that were visited and reflect what is good and bad so that we can decide which lessons are useful for our own conditions. We need the best possible recommendations on how we can restructure the economy [to] make us more competitive."
But a number of ANC insiders led the M&G to believe that the report was sent back because it was too strongly against nationalisation and should eventually go down the "nationalisation-lite" route.
Peter Attard Montalto from research firm Nomura International said such interventions created only more investor uncertainty. "It has long been our view that the ANC would take a line of greater state control rather than nationalisation, but in the very long run it will lead us to the same place with the same cost as nationalisation."
Source: Mail & Guardian
The Mail & Guardian has learned from various sources that central to this plan is to force competitive input prices through taxes and other penalties and for state institutions to take bigger stakes in companies that hold key strategic infrastructure minerals. Every producer or miner of critical feeder stocks that are used in manufacturing -- from steel, fertiliser, coal, platinum, polymers and copper to cement will be targeted for these types of intervention.
The radical proposals are contained in three discussion reports that the researchers handed to ANC secretary general Gwede Mantashe and the head of the ANC economic transformation committee, Enoch Godongwana, two weeks ago. The documents are still to be debated and vetted by the ANC national executive committee before the party can showcase it at its policy conference in June next year.
The first discussion document deals with economic policy and globalisation; the second discusses how state-owned enterprises and development finance institutions can partner with savings industry funds for new infrastructure; and the third investigates nationalisation as an option for ways the state can intervene to benefit from mineral wealth.
Although resource nationalism is seen by some economists as a killer of investment, the ANC's research team that looked at the option indicates that state intervention in the minerals sector internationally is the norm rather than the exception. The team visited 13 countries around the globe as part of their research. Its idea is to use South Africa's resources sector to spur the creation of a thriving manufacturing industry that can drive growth and create jobs.
An option mooted is for state institutions and unions collectively to increase their shareholding in companies such as petrochemicals giant Sasol and steel conglomerate ArcelorMittal South Africa. The view is that these companies, which were once state entities, have strategic input assets that are used in manufacturing, but they are now engaging in predatory pricing and monopolistic activity that stifles competition and growth. "It's more about the alternatives to nationalisation and greater state intervention," Godongwana told the M&G this week. "The state needs to get a better share of these very high prices being charged."
The Public Investment Corporation, which has R1-trillion in assets, and the Industrial Development Corporation together own 26% of Sasol. The proposal is that union investment funds should be used to increase this stake to 51%. As controlling shareholders the state-cum-union would then be able to fix Sasol's prices at rates more beneficial to the economy.
To nationalise, on the other hand, would be highly expensive. Sasol, for example, could cost the state more than R50-billion and ArcelorMittal about R8-billion.
Some of the other options on the table in terms of state interventions on mineral assets are:
* An exports tax on raw minerals as an incentive for companies to beneficiate in South Africa and grow the country's manufacturing capacity. It is a more protectionist approach, one which many other countries have followed, especially in these uncertain economic conditions. But the export tax is exactly the same as the royalties tax, which is based on revenues. The suggestion then is for the royalties tax to be either adjusted or scrapped.
* A resources rent tax, similar to the Australian model, which is based on profits.
* All strategic minerals will have pricing conditions. There is a recommendation to amend the Minerals and Petroleum Resources Development Act to give the minister power to attach conditions to existing and new licences that will force companies such as Sasol to charge a lower export parity-related price than downstream producers would pay in China, for example. These price conditions would have to be imposed by Sasol on their buyers to which they on-sell.
* Strengthen the Competition Act further to allow for stiffer penalties.
* Increase competition in sectors by bringing in an Asian competitor, for example, that will be partly funded by state institutions, such as the Industrial Development Corporation, to challenge monopolies. The same price conditions, however, will apply to the new player.
* Use electricity, rail and port tariffs to force monopolies to lower prices. One recommendation is that Eskom introduce a surcharge on electricity tariffs for Sasol, for example, as a way of disciplining the petrochemicals giant in terms of its higher prices.
* Instead of nationalising Kumba Iron Ore, a proposal is to introduce a user-pay concession on the rail link from its main Sishen mine in the Northern Cape to allow it to export more iron ore. Kumba could build and operate the line for about 15 years and then transfer it to Transnet.
* In the copper industry there are reserves for only another eight years. The state, through the Industrial Development Corporation, is already bidding to buy Rio Tinto's Phalaborwa Mining Company -- South Africa's only refined-copper producer -- which it could merge with state-owned Foskor.
Many of the proposals tie in with the government's broader goals to stimulate the country's industrial base as a way to meet the national growth path's target of five million jobs by 2020. But last weekend Mantashe sent the report on state interventions back to the drawing board, saying it needed to be rewritten in simpler language and case studies of other countries included.
Said Godongwana: "The report must capture the experiences of the 13 countries that were visited and reflect what is good and bad so that we can decide which lessons are useful for our own conditions. We need the best possible recommendations on how we can restructure the economy [to] make us more competitive."
But a number of ANC insiders led the M&G to believe that the report was sent back because it was too strongly against nationalisation and should eventually go down the "nationalisation-lite" route.
Peter Attard Montalto from research firm Nomura International said such interventions created only more investor uncertainty. "It has long been our view that the ANC would take a line of greater state control rather than nationalisation, but in the very long run it will lead us to the same place with the same cost as nationalisation."
Source: Mail & Guardian
Thursday, December 1, 2011
SCA: Simelane's appointment as NPA boss 'invalid'
The Supreme Court of Appeal has ruled that Menzi Simelane's appointment by President Jacob Zuma as the director of public prosecutions at the National Prosecuting Authority (NPA), was invalid. The case was brought to the appeals court by the Democratic Alliance, after its bid to have Zuma's decision to appoint Simelane as the NPA boss set aside failed in the North Gauteng High Court in Pretoria last year.
On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".
Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."
The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
Source: Mail & Guardian
On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".
Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."
The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
Source: Mail & Guardian
Wednesday, November 23, 2011
The role of the ConCourt in our democracy
Kate O'Regan, Judge of the Constitutional Court (1994 - 2009), Helen Suzman Memorial Lecture, Johannesburg, November 22 2011
A Forum for reason: Reflections on the role and work of the Constitutional Court
It is a signal honour to be asked to deliver this lecture in memory of Helen Suzman. There are many reasons why we should remember and honour Helen: her great courage, her principled and unwavering opposition to the policy of apartheid, her undoubted and consistent integrity, and her quick wit and dry sense of humour.
But the quality I should like to remind you of this evening is one less often mentioned: the extraordinary diligence and meticulous attention to detail with which she approached every task in her life, but particularly her responsibility as Member of Parliament. This personal quality had, according to Helen, a rather surprising source.
In her memoir, In No Uncertain Terms, she comments that whenever she felt like shirking something she knew she ought to do, she could hear Sr Columba, the head nun at Parktown Convent, where she went to school, whispering in her ear (with an Irish accent and no doubt firmly) "Do it child!" and, according to Helen, she always did.[1] I imagine that Sr Columba was perhaps the first and last person that Helen ever obeyed automatically.
In her years as an MP, she was a regular and informed speaker in the House -- she notes in her autobiography that she generally "tackled" (her word) fifteen ministers per session and that each speech took hours to prepare.[2] In addition, she put an average of 200 questions a year.[3] The answers to these questions provided information that would not have otherwise been available.
Reading through the volumes of the SA Institute of Race Relations Annual Survey of her years in Parliament, it is striking how often information provided, was sourced in answers to questions put by Helen. Famously, when chided by a Nationalist Cabinet Minister in the House for asking questions, as he put it, simply to embarrass South Africa overseas, she retorted "it is not my questions that embarrass South Africa, it is your answers".[4]
The seriousness of purpose that underlay Helen's approach to her work as a parliamentarian was exemplary. It recognised that the work of governance and politics is a serious business which needs to be undertaken with vigour, dedication and integrity. Helen was not a practitioner of what might be called the broad brush approach to factual or policy questions.
Instead, she recognised that good governance requires a mastery of detail as well as attention to principle. Accordingly, she took seriously the work of gathering and synthesising information and considering arguments from a range of angles, before taking a view on any problem. It is this serious-minded and painstaking approach to the exercise of public power, despite all the challenges she faced, especially as a lone member of the Progressive Party in Parliament for thirteen years, from 1961 to 1974 during the darkest days of apartheid, that I would particularly like to memorialise today,
Recent months have seen an increasing number of comments by ruling party politicians, critical of the role of the courts in our constitutional democracy.[5] Two of the most important have been by the President, Mr Zuma. In July, at the Access to Justice conference, hosted by the Chief Justice Ngcobo, the President stated in his speech that:
"Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms."[6]
Some concern was raised in the media about these remarks on the basis that they misconstrued the role of the courts in our constitutional democracy. But again, on 1 November 2011, in a speech given by President Zuma at the parliamentary hearing to say farewell to Chief Justice Ngcobo and welcome Chief Justice Mogoeng the President repeated the same concern:
"... we also wish to reiterate our view that there is a need to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation. Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government. I know that the last time we raised this point, we generated a heated debate within the legal fraternity, some of whom did not see that it is actually an affirmation of the separation of powers. This challenge is perhaps articulated clearly by Justice VR Krishma Lyer of India who observed that: Legality is within the court's province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule.""[7]
There are two themes underlying the President's remarks. The first is that the power of the Executive and the Legislature is being curtailed by the courts, and in particular, that the courts are interfering with the power of the executive and legislature to make what is referred to as "policy". The second is that "those who do not agree with the ruling party" are using the courts to help them "co-govern" the country. I am going to address both these concerns in my remarks today.
But first, I am briefly going to describe the role conferred upon courts, and particularly the Constitutional Court, by the Constitution; and provide a description of the way in which the Court has gone about its work in the first seventeen years of our democracy. Then I will consider what is meant by "policy" and what the role of the courts, and particularly, the Constitutional Court, is in relation to reviewing "policy". Finally, I shall briefly consider the question of the right of citizens to use the courts to protect the Constitution.
Before going further though, I should observe that the relationship between the judiciary and the executive and legislative arms of government in a democracy is often tense. This is, in part, because in a constitutional democracy the relationship between these arms of government is structured in a way to ensure that the power of each is checked or restrained by the other. This is what we mean by the separation of powers. There is no sovereign, unlimited power in a constitutional democracy. Instead, all power is constrained - for obvious reasons, for, as Lord Acton famously said: "All power tends to corrupt, and absolute power tends to corrupt absolutely" or as I have also heard it formulated, "all power is delicious, and absolute power is absolutely delicious".
The fact that many different democracies use the phrase "separation of powers" to describe the regulation of the relationship between the three arms of government can mask the fact that each constitutional framework has its own understanding of the relationship between the arms of government. The particular conception of the "separation of powers" in any particular constitutional democracy requires a careful analysis of its constitutional text as well as its constitutional practice.
Moreover, the precise contours of the doctrine of the separation of powers are, arguably everywhere, somewhat uncertain. As a result, the question, in effect, raised by the President - "what is the proper domain of the Courts?" - is a question which gives rise to sharply divided answers, not only in our democracy, but in many others as well.
Take the United Kingdom, for example, where parliament has historically been considered to be sovereign in that it is free to make any law it likes. Even there, the debate over the role of courts in the British democracy is vigorous. Just two weeks ago, Jonathan Sumption QC, the newest appointment to the British Supreme Court (as the Appellate Committee of the House of Lords was recently renamed), argued that the European Convention has required judges to deal with "matters (namely the merits of policy decisions) which in a democracy are the proper function of parliament and of ministers answerable to parliament and the electorate".[8]
He continued "parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy making. It is also the only way of doing so that carries any democratic legitimacy." You can see the startling similarity between these remarks and those made by President Zuma.
Accordingly, we should not immediately be alarmed when debates about the proper ambit of judicial power arises. It is a debate that is endemic in democracies. But the question of the proper role of the courts, and the Constitutional Court in relation to policy is a recurring question in our democracy. It is a serious question and, Mrs Suzman would have agreed, it warrants considered analysis and a serious response.
The role of the Constitutional Court
The Constitutional Court is the final court of appeal in constitutional matters. Although somewhat resistant to precise definition, a constitutional matter is a matter that involves the interpretation or enforcement of a provision of the Constitution. One of the key chapters of the Constitution is chapter 2 which contains the Bill of Rights and the ambit of the Bill of Rights in our Constitution is particularly broad. First, it includes not only the civil and political rights traditionally protected in a bill of rights, but also a wide range of additional rights such as environmental rights,[9] the right to just administrative action,[10] the right of access to information[11] and, of course, social and economic rights.[12]
Secondly, the bearers of obligations under the Bill of Rights are not limited to the state and its organs. Provisions of the Bill of Rights bind the judiciary in the exercise of its duties,[13] and also bind private individuals and corporations to the extent that the relevant right "is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."[14] Given the breadth of the scope of the Bill of Rights in our Constitution, the range of constitutional matters is far broader than it would be were the Bill of Rights to be less expansive.
But in addition to the Bill of Rights, it is the task of the Courts, and the Constitutional Court in particular, to protect and enforce the other thirteen chapters of the Constitution as well. To give you some idea of the scope of this jurisdiction, a brief description of the contents of those chapters will be useful. The first chapter contains the founding values of the Constitution, the supremacy clause, the clauses on citizenship, the national anthem and flag as well as the language clause. Chapter 2, as I have mentioned, contains the Bill of Rights. The third chapter sets out the principles of co-operative governance which regulate the manner in which the three spheres of government must interact. The fourth provides for the composition, powers and procedures of Parliament. The fifth covers the Presidency and the National Executive. The sixth deals with provinces, the seventh, with local government, the eighth with the judiciary and the prosecuting authority. Chapter 9 provides for the state institutions supporting constitutional democracy such as the Public Protector, the SA Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. Chapter 10 regulates the public administration, chapter 11 the security services, including the SANDF and SAPS; chapter 12 the institution of traditional leadership and chapter 13 deals with finance. The final chapter deals with international law, and various other matters. All of these chapters dealing with constitutional structure are protected and enforced by the judiciary, and especially the Constitutional Court.
One of the founding values of the Constitution is the principle that the Constitution is supreme. It follows from this principle, as section 2 of the Constitution makes plain, that law or conduct inconsistent with the Constitution is invalid, and that obligations imposed by the Constitution must be fulfilled. Accordingly, the Constitution sets the parameters for the exercise of public (and to a lesser extent, private) power. No organ of state or arm of government has the power to act in a manner that is inconsistent with the Constitution.
The corollary of constitutional supremacy is a strong form of judicial review which permits courts, and again particularly the Constitutional Court, to determine what conduct is consistent with the Constitution. A further logical consequence of the supremacy clause is that a court, "when deciding a constitutional matter within its power" must declare law or conduct that is inconsistent with the Constitution to be invalid to the extent of its inconsistency.[15]
The Constitution ameliorates any inequitable consequences that may flow from this prescription by providing that the court may, in addition, make any "just and equitable" order including an order suspending the order of invalidity for any period and on any conditions to allow the competent authority which may be Parliament or a provincial legislature or an administrator an opportunity to correct the defect. The court may also limit the retrospective effect of the order of invalidity.
The special role of the Constitutional Court is recognised by a rule that an order of constitutional invalidity in respect of an Act of Parliament, provincial legislation or conduct of the President, will have no force unless it is confirmed by the Constitutional Court:[16] so it is only the Constitutional Court that can, in effect, declare legislation or conduct of the President invalid. The reservation of this power for the Court marks the Court's special place in our doctrine of the separation of powers, and no doubt, is the reason for the special rules relating to the appointment and terms of office of members of the Court.[17]
The work of the Constitutional Court
The Constitutional Court has handed down 422 judgments in its first 17 years of existence, a rate of just under 25 per year. This is not a prodigious judicial output, compared to other senior courts around the world. But that relatively low output needs to be assessed in the light of three considerations.
The first is that the Court has eleven members and the general rule is that all eleven judges sit in every case. Although there is no doubt that the size of the Court is valuable in many respects, it probably slows down the process of decision-making and writing. Just for example, to go round the table and permit every judge to air his or her views on a case, will often take an hour.
Secondly, the Court receives far more applications for access to the Court than it actually enrols for hearing. Each of these applications, which in the last four years that I was at the Court exceeded the number of cases heard on a ratio of between 3 and 4 to one (that is, an additional 75 to 100 cases per annum to those that are actually enrolled for hearing) are considered by all the judges of the Court, unlike other senior appellate courts which often delegate this decision making responsibilty to a few judges. As our Constitution stipulates that a quorum of the Court is eight, no one can be turned away from the court without at least eight judges having considered the matter.[18]
Finally, the issues that have come before the court in its first 17 years have been some of the most difficult considered by courts anywhere. They have ranged from issues that have attracted much public comment, such as the constitutionality of the death penalty, gay marriage and some high profile criminal matters, to grappling with issues relating to the interpretation and protection of social and economic rights, where there is no tried and tested path, to the questions of constitutional structure and relationship that involve interpretation of the provisions of the Constitution other than the Bill of Rights.
The fact that the Court has not been unduly burdened by cases, unlike the situation in other jurisdictions such as India or Germany, has meant that the Court has had the ability to spend time on each case it hears. Once a case has been heard, a post hearing conference of the judges is held at which the issues raised in the case are preliminarily debated and discussed. The practice has varied somewhat over the years: in early years the Court met immediately after the case was concluded, then more recently, one judge prepares a note identifying the issues for discussion, often suggesting a solution to them, and that note serves as the basis for the discussion. Once that discussion has been held, a draft is prepared, and then it is discussed again. At that stage dissents or concurrences may be prepared and then all the judgments are read through at a meeting by all the judges, where substance can be debated, and editing questions of style and formulation are also considered. The advantage of this full collegial engagement on each judgment has been the development of a shared collegial understanding of the jurisprudence which has been of great value to the court, in my view.
On my count, 147 of the 422 cases before the Court have required the Court to determine whether a provision in an Act of Parliament is inconsistent with the Constitution. Of those 147 cases, the Court found in 90 of them that the legislative provision under review was inconsistent with the Constitution, that is an average of just over five times a year. Interestingly, the average has not declined markedly over the period.
In the first five years, 29 legislative provisions were declared to be invalid. In the following five years, another 29 legislative provisions were declared invalid and since then (a period of not quite seven years), 32 have been declared invalid. In the seventeen years, 57 challenges to legislative provisions have been upheld.
It is important to note here that the provision may be a very small part of a legislative scheme. For example, in one case the Court held that section 28(1)(a) of the Medicines and Related Substances Control Act was inconsistent with the Constitution because it granted inspectors very wide powers to enter and search any place that the inspector reasonably believed medicines would be found.[19] The Court held that the powers of search were too wide to be consistent with the Constitution and struck them down. The remainder of the Act, of course, remained in place.
Of the 90 declarations of legislative invalidity made by the Court, the largest number, 22 have been in the field of criminal law and procedure. Perhaps the most well-known of these decisions is the decision declaring the implementation of death sentences to be inconsistent with the Constitution.[20] The court has also declared the corporal punishment of juveniles to be inconsistent with the Constitution[21] as well as the provisions for declaring people habitual criminals to the extent that such declarations imposed prison sentences of an indeterminate period.[22]
Approximately ten of the 22 cases related to rules that impose burdens of proof upon the accused which the court has held to be in conflict with the presumption of innocence. The most noteworthy of these was the very first judgment handed down by the Court which related to section 217 of the Criminal Procedure Act, a notorious provision during the apartheid years, which presumed that confessions that had been sworn to before a magistrate had been freely and voluntarily made and required the accused to prove the contrary.[23]
The second most common ground for declarations of constitutional invalidity has been inequality. Section 9 of the Constitution prohibits unfair discrimination on a range of grounds, including race, gender, sexual orientation, age and disability. The list of grounds is not closed, so that discrimination on another ground may be held to be unfair. The Court has upheld 20 challenges to the validity of legislation in the area of equality. Four of these have concerned discrimination on the ground of gender, 9 discrimination on the ground of sexual orientation, and 3 on the ground of race.
The third most common ground for declarations of invalidity have been the right of access to courts (section 34 of the Constitution). The Court has upheld 10 challenges in this area. As far as other provisions in the Bill of Rights are concerned, there has been 1 successful challenge on the ground of section 25, the property clause, (I should add that given current public debate about the role of the property clause in our Constitution, there have been 9 unsuccessful challenges based on this clause, a greater rate of failure than in relation to any other right), as well as 4 successful challenges relating to speech, 4 relating to the right of access to housing, 2 to freedom and security of the person, 3 to privacy, 3 to the rights of children and 4 to the right to vote.
There have been 13 successful challenges to legislative provisions regulating what might be described as constitutional structure issues: that is powers of the President, Parliament, provincial and local government.
Often the declaration of constitutional invalidity is not controversial, nor does it touch on what I think the President means when he refers to "policy", a matter to which I shall return in a moment. Many of the legislative provisions that have been struck down have been technical provisions rather than substantive provisions. It has been rare that large portions of legislation have been found to be invalid. Accordingly, it is not infrequent that the Minister responsible for the administration of the legislative provision under challenge appears in the Constitutional Court only to indicate that the government does not wish to argue that the legislation is constitutional, but only wishes to make submissions as to the appropriate order to be made by the Court to regulate the effect of the declaration of invalidity.
Sometimes, of course, the declaration of invalidity is controversial. The source of controversy can differ. Sometimes it is the public that does not like the declaration. The leading example of this, perhaps, is the death penalty case. At other times, the source of controversy can be with government.
In nearly seventeen years, the Court has had to consider challenges to the constitutional validity of conduct of the President, on my count, seven times. Four of these challenges were against President Mandela. Two of these were successful and two were not. The earliest concerned the legislation regulating the restructuring of local government (the Local Government Transition Act, 209 of 1993).[24] This legislation purported to confer powers on the President to amend the legislation which President Mandela purported to do in two proclamations, which were the subject of an urgent constitutional court challenge just before the first democratic local government elections were to be held. The challenge to this conduct was that the legislature may not empower the President to legislate and to the extent that the President had purported to do so, he had acted in conflict with the Constitution.
The court held unanimously though for different reasons that the empowering provision in the legislation was inconsistent with the Constitution. A majority of nine held that the Presidential proclamations were also invalid. Because of the imminent local government elections, the Court suspended the orders of invalidity for a period of a month to enable Parliament to be recalled to rectify the legislation. That evening, 22 September 1995, President Mandela went on national television to say that he accepted the decisions of the Court, that Parliament would be recalled, and that the constitutional defects in the legislation and proclamations would be rectified.
A presidential pardon made by President Mandela to single mothers who had committed less serious crimes was challenged on the grounds of sex discrimination but was not successful,[25] although the Court held that the pardons process was subject to the Bill of Rights and was constitutionally reviewable by the Courts. Similarly, President Mandela's appointment of a commission of inquiry into rugby was challenged, again, on appeal to the Court, unsuccessfully.[26] The final challenge related to the premature bringing into force of legislation regulating pharmaceuticals and medicines in April 1999[27] which was upheld.[28]
There were two direct challenges to conduct taken by President Mbeki during his term of office. The first concerned the termination of employment of the head of the national intelleigence agency.[29] This application failed and the second related to the process regulating presidential pardons which succeeded.[30] Under President Zuma, there has been one challenge, which was successful: it related to the purported extension of the term of Chief Justice Ngcobo.[31]
Challenges to presidential conduct are therefore rare. The principles that inform the determination of such challenges are relatively straightforward: the President must act lawfully, rationally and consistently with the Bill of Rights. I shall return to examine these requirements more fully in a moment.
Having looked briefly at the role and work of the Court, I am going to turn now to consider more closely the role of the Court in relation to policy-making, an issue raised in the speeches of the President that I referred to at the outset and one that has given rise to controversy in recent years.
"Policy" and the Constitution
The Constitution does not define "policy," although it does stipulate that "the development and implementation of national policy" is a task for the executive.[32] The Shorter OED gives a useful definition of policy as "a course of action adopted and pursued by a government." This is, I think, the sense in which the President used the word "policy" in the two speeches referred to above.
The Constitution does not define "policy" probably because policy is not a distinct legal category. Different legal tools can be used to implement "policy." So policy may be encapsulated in legislation, or through regulations made in terms of legislation, or it may take the form of executive instructions to bureaucrats or it may be pursued through the conduct of officials. These different tools have different constitutional and legal implications. Time does not permit me fully to elaborate these different consequences. At a general level, all policy, however pursued, must comply with the three constitutional constraints that I have already mentioned: the requirements of legality and rationality, and compliance with the Bill of Rights. Where policy is pursued through the tool of what is called "administrative action" in the Constitution, there are additional requirements of procedural fairness and reasonableness. The two questions -- what constitutes administrative action? and what does procedural fairness and reasonableness require? -- are questions beyond the scope of my address today.
The first constraint: Legality and the Rule of Law
The first constraint on the implementation of policy is that all government conduct must have a legal foundation: in the Constitution or in legislation. As the Constitutional Court formulated this principle in an early case: "it is central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law."[33] This principle, referred to in our jurisprudence as the principle of legality, is based on the rule of law -- a founding principle in our democracy. The rule of law, at its most straightforward, means that power must be exercised in accordance with the Constitution and the law. Its implication is that legislation must be passed in accordance with the provisions of the Constitution and powers exercised by the President or government ministers must be conferred upon them by the Constitution or legislation.
The first question then is whether the tool selected to pursue a policy is authorised by law and the Constitution. An example of a recent case where the conduct of the President was held not to meet this requirement was the case of Justice Alliance of South Africa v President, RSA (which I have mentioned earlier).[34] This case concerned the purported extension of Chief Justice Ngcobo's term of office. The Court held that section 8(1) of the Judges Remuneration and Conditions of Employment Act[35] that purported to confer a power upon the President to request a Chief Justice who has become eligible for discharge from active service to continue to perform active service as Chief Justice of South Africa "for a period determined by the President". The Constitutional Court concluded that "... section 8(a) violates the principle of judicial independence. This kind of open-ended discretion may raise a reasonable apprehension or perception that the independence of the Chief Justice and by corollary the judiciary may be undermined by external interference from the executive. The truth may be different, but it matters not. What matters is that the judiciary is seen to be free from external interference."[36] The consequence of this conclusion was that both the legislation and the President's decision to extend the term of office of the Chief Justice, were held to be invalid.
The second constraint: rationality or the "some rhyme or reason" rule
The second requirement, that of rationality is, perhaps, the most misunderstood of the three requirements I am describing this evening. It is not onerous, for it requires only that there be some nexus or link between the purpose sought to be achieved by the relevant action or legislation and the terms of the legislation or character of the conduct. It perhaps might be called the "some rhyme or reason" rule. 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.
The first case dealing with this principle illustrates the point. In the Pharmaceutical Manufacturers case,[37] new legislation regulating the manufacture, sale and possession of medicines for human and animal use had been enacted by Parliament and brought into force by the President. But when it was brought into force, the necessary regulations that would make the Act effective had not yet been made and the result was that the new Act, which had repealed the old Act, was almost completely ineffective. The case therefore challenged the President's decision to bring the Act into force. The Court found that "the decision to bring the Act into force before the regulatory framework was in place, viewed objectively, is explicable only on the grounds of error".[38]
Accordingly, the court concluded that "[t]he President's decision to bring the Act into operation ... cannot be found to be objectively rational on any basis whatsoever. The fact that the President mistakenly believed that it was appropriate to bring the Act into force, and acted in good faith in doing so, does not put the matter beyond the reach of the Court's powers of review."[39]
The Court described the requirement of rationality as "a minimum threshold requirement applicalbe to exercise of all public power by members of the executive and other functionaries"[40] but emphasised that the standard of rationality does not permit courts to substitute their opinions as to what would be appropriate for that of the government . Given the requirement that any link between the decision or legislation and the underlying purpose, the Court noted that "[a] decision that is objectively irrational is likely to be made only rarely ...".
This "no rhyme or reason" test does not significantly impair the ability of the government to perform its necessary tasks. It does not permit a court to interfere with a decision of the government simply because it disagrees with it or considers that government acted in appropriately.[41] Instead, the Court has on several occasions emphasised that it "should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively ... As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the Executive to act efficiently and promptly."[42]
It is important that the test of rationality remains a "no rhyme or reason test" and is not tightened to require a closer connection between the government purpose and the legislation or action in question. Setting a tighter test for rationality might well constitute an unwarranted intrusion into the legitimate constitutional space accorded to the legislature and the executive.
The third constraint: the Bill of Rights
All governmental policy, whether implemented through legislation, executive or presidential action or administrative law may not infringe the rights entrenched in the Bill of Rights. The legislature and executive as well as the courts are all bearers of obligations under the Bill of Rights, which means that they must respect, protect and fulfil the rights in the Bill of Rights. In a real sense, it is the provisions of the Bill of Rights that most sharply constrain the conduct of government, including the process of policy-making.
Yet the rights in the Bill of Rights are not absolute constraints. Under our constitutional order, rights are not "trump cards" that always take precedence over other concerns. Our constitutional order recognises that there will be times when one right in the Bill of Rights will be in tension with another, or where important public interests may require the limitation of rights and it accordingly permits the limitation of rights. In this regard our Constitution is similar to the German Constitution. The remarks of Professor Dieter Grimm, a respected former member of the German Constitutional Court in relation to the German Constitution are of equal application to ours:
"From the beginning, limitations of fundamental rights were regarded as normal, because all rights and freedoms can collide or can be misused. Harmonization of colliding rights and prevention of abuses of liberty are normal tasks of the legislature. The function of constitutional guarantees of rights is not to make limitations as difficult as possible but to require special justifications for limitations that make them compatible with the general principles of individual autonomy and dignity."[43]
Accordingly, a challenge to legislation based on a right in chapter 2 follows a two-stage process and a court, when considering a constitutional challenge to legislation, asks two questions: the first is does the legislation limit a right entrenched in the Bill of Rights? Should the court decide that the legislation does indeed limit a right, the next question that arises is whether the limitation is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom"?[44] This affords the executive defending the constitutionality of legislation an opportunity both to lead evidence and present argument as to why the legislation is not unconstitutional.
How does the Court decide whether an infringement will nevertheless pass the test of justification? It considers whether the reason given by the government for limiting the right is sufficiently important to outweigh the impact it causes in limiting the right. This is essentially a proportionality analysis. The approach was summarised in an early decision of the Court as follows:
"In sum, therefore, the Court places the purpose, effect and importance of the infringing legislation on one side of the scales and the nature and effect of the infringement caused by the legislation on the other. The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be."[45]
The process of limitations analysis therefore permits the Court to consider the reasons proffered by government for the legislation under attack. In so doing, it affords a government an opportunity to set out its reasons for the limitation to persuade the Court, and the broader society, of the legitimacy of both its purpose and method. The function of the Court when determining challenges to legislation based on the Bill of Rights is thus twofold: most obviously, it serves as the guardian of fundamental rights; less obviously, but as importantly, it serves to create a forum for public debate about the reasons for the exercise of power. This role carries with it a conception of democracy which requires the exercise of public power to be accountable.
Thus government may enact legislation to pursue a policy it has adopted even if the legislation will limit rights. But if it chooses to do so, government must consider whether the purpose and scope of the provision that limits rights is reasonable and justifiable in the light of the invasion of the right. That is a question that should be considered both by the Minister introducing the legislation, and by Parliament during the parliamentary process.
The role of the Courts is thus not to thwart or frustrate the democratic arms of government, but is rather to hold them accountable for the manner in which they exercise public power. In Etienne Mureinik's celebrated formulation: our new constitutional order establishes a "culture of justification"[46] and "must lead to a culture of justification - a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion."[47] Nowhere in our constitutional order is the insistence on justification more visible than in the jurisprudence of rights. Our Constitution asks government to justify what limitations they wish to impose on rights, and empowers the courts to consider whether those justifications are convincing.
But it is not only relation to justification that the Court gives scope for flexibility to government. Our Constitution, unlike many others, protects not only civil and political rights, but also social and economic rights. In understanding the meaning of rights, the key question for lawyers is the parameters of the obligations imposed by the right. So, if I have a right of access to health care, against whom do I have that right, and what must that person do in relation to my right? The most difficult jurisprudential aspect of social and economic rights is determining the extent of the positive obligation they impose upon government to act to achieve the realisation of the right. A full consideration of this question is beyond the scope of my remarks today. A brief outline of the Court's approach is all that is possible.
The Constitutional Court has held that, at least in relation to the rights entrenched in section 26 and 27 of the Constitution, the scope of government's positive obligation to take steps to achieve the realisation of the rights of access to housing, health care and sufficient food and water, amongst others, is delineated by matching provisions in the Constitution which state that "the state must take reasonable legislative and other measures, within its available resources, progressively to achieve the realisation" of these rights.[48] The question in such cases, therefore, is whether the government has acted reasonably.
This aspect of the Constitution has required the Court on several occasions to assess policy adopted by the government. In the seminal early case, Government of the RSA and Others v Grootboom and Others,[49] the Court held that the government's housing policy was in breach of the obligations imposed upon government by section 26 of the Constitution in that it failed to "provide for any form of relief to those desperately in need of access to housing"[50] and ordered the government to to amend its program "to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations."[51]
Similarly, in the Treatment Action Campaign case,[52] the Court held that the policy of the government whereby Nevirapine would be administered to pregnant mothers living with HIV at only two clinics per province was in breach of section 27 of the Bill of Rights, and specifically the positive obligation imposed upon government by that provision to take reasonable steps within its available resources to progressively achieve the right of access to health care. The policy was not formulated in legislation, but had been adopted by the Department of Health, despite the fact that Boehringer Ingelheim, the manufacturers of Nevirapine, had offered Nevirapine to the government free of charge for a period of two years; and despite the fact that the World Health Organisation had issued guidelines stipulating that Nevirapine was an appropriate intervention to prevent mother to child transmission of HIV, and so should be administered without limitation.
The Court held that in the circumstances the policy adopted by government was not a reasonable policy and stipulated that the policy should be expanded to include all clinics in all provinces where adequate counselling and testing facilities existed for the administration of Nevirapine. The Court concluded, however, by noting that government would be free to introduce a different policy to reduce the risk of mother to child transmission of HIV "if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV".[53]
In sum, the approach of the Court has been to require government to explain why its policies in the field of social and economic rights are reasonable. Government must disclose to the Court "what it has done to formulate the policy, its investigation and research, the alternatives considered and the reasons why the option underlying the policy was selected".[54] This approach permits citizens to hold the democratic arms of government to account through litigation, but does not require government "to be held to an impossible standard of perfection".[55]
The effect of this approach is that the courts do not take over the task of making policy but they do require government to account to citizens for its policy decisions in the field of social and economic rights. The process of accounting for decisions in the field should improve the quality of decision-making without improperly restricting the choices available to government.
The right of access to courts
It is fitting now to turn briefly to the second question underlying the remarks of the President, and that is the suggestion that the approach of the courts has permitted "those who do not agree with the ruling party" to use the courts to help them "co-govern" the country. Section 34 of the Constitution guarantees that citizens have the right of access to courts. It follows that citizens may approach courts to protect rights where they consider that "policy" that has been adopted by government, whether in legislation or in other ways, infringes rights. If the "policy" meets the requirements of legality and rationality, and does not unjustifiably infringe rights, then such litigation will, of course, fail.
If, on the other hand, the "policy" (whatever form it may take) does not comply with the constitutional requirements, then the consequence will be that an order of invalidity will follow. What is clear, however, is that these are the only grounds upon which citizens may challenge government's actions. The grounds for constitutional review are therefore narrow. There is a clear public interest in ensuring that government's actions comply with the principles of legality, rationality and do not unjustifiably infringe rights. If government's actions are compliant with these constitutional requirements, government will succeed. Citizens' entitlement to ensure that government complies with these constitutional requirements does not diminish government's capacity to govern, nor does it entitle citizens to co-govern the country. It is only if courts were improperly to intrude on the legitimate domain of legislative and executive power that citizens' use of the courts would improperly diminish the powers of the legislature and executive. And it is that concern that I now consider.
The importance of judicial modesty and restraint
The scheme that I have outlined above illustrates the manner in which the actions of government are constrained by the principles of the Constitution. It would not be complete without a final comment about the need for judicial modesty and restraint. It is unarguable that South Africa remains a society deeply scarred by its history. The deep inequalities that persist are visible reminders of the effects of apartheid and colonialism. Until these scars are healed, the vision of our Constitution will not have been achieved. There is a great burden on government, in particular, to address this historic legacy.
Courts need to be modest about the judicial role in addressing the legacy of our history. They must recognise that their responsibility is primarily to ensure that government works within the threefold framework of legality, rationality and compliance with the bill of rights. Outside of this framework, it is not for courts to impede the functioning of government. There are reasons for this: the first is that the legislature, and indirectly, the executive are democratically elected arms of government, whose office is determined by popular vote. In South Africa, where democracy has only recently been achieved, the vote is precious and the principle of democracy dear. Courts must, and do, acknowledge this.
Secondly, courts are institutionally ill placed to make the complex decisions that policy requires. Why is this? First, judges have no experience in the field of policy formulation. Secondly, courts cannot dictate the issues they address, they are responsive to cases that come before them and often the picture they obtain is incomplete. Thirdly, the doctrine of precedent means that when the Constitutional Court decides cases, the principle that founds their decision binds all courts in the future. The doctrine of precedent is an important aspect of the rule of law, but it is peculiarly unsuited to application in the field of social and economic policy where governments often need to act expeditiously and even experimentally to seek to identify solutions to the pressing problems faced by the country.
In many cases, there is reasonable disagreement in our society as to what policies will best achieve the destruction of the apartheid legacy. Courts should take care not to limit unduly, government's ability to make the decisions as to which policies it chooses. Given the great challenges we face, and the lack of clear and agreed answers as to how they should best be tackled, courts should not tie government's hands more than the Constitution requires.
Courts must accordingly avoid what a respected Indian commentator has termed the jurisprudence of exasperation:[56] the tendency to reach decisions or make statements that are an expression of judges' exasperation with the state of affairs in the country, rather than on the basis of "carefully thought out arguments based on the law's possibilities and limits." [57]Reasoned arguments. In South Africa a jurisprudence of exasperation might result in the requirements of rationality being unduly tightened or in courts being too slow to accept that government's policies in achieving social economic rights are reasonable, or in insisting that government adopt the court's own views as to what is an appropriate government policy.
Such a result would be damaging, as Pratap Bhanu Mehta has observed. "Often judicial interventions, unless disciplined by law and carefully crafted, produce worse outcomes [than bad government policy]. In some ways judicial policy-making magnifies rather than corrects the deficiencies of executive policy-making. ... Ad hominem interventions based on nothing more than confidence in the judges' good intentions, are no substitute for a policy-making process."[58]
By and large, courts in South Africa have avoided a jurisprudence of exasperation. Government action is scrutinised to ensure that it is lawful, rational and in compliance with the Bill of Rights as the Constitution requires. Beyond these parameters, government must be, and is, free to act. It is important for courts to continue to be disciplined in this regard despite criticism that may come not only from government, but also from other sources.
In this regard, it is interesting to note that in India, public opinion and non-governmental organisations have often applauded judicial incursions into the sphere of legislative and executive power. Partly, this may be due to exasperation shared by citizens as well as judges with the actions of government. But these will be short-term gains, for courts cannot run a country effectively. Instead of a jurisprudence of exasperation, we should insist on a jurisprudence of accountability that ensures that the responsibility for government remains that of the legislature and executive, but insists that those two arms of government must account for their conduct, where required to do so, through the courts.
Conclusion
The challenges that face South Africa in building the society envisaged in the Constitution's Preamble are many and complex. Until the deep inequality that is a legacy of apartheid is eradicated, these challenges will persist.
I hope that in the course of my address, I have explained why our courts have an important role under our constitutional order to ensure that the provisions of the Constitution are honoured, and that includes the responsibility of ensuring that governmental action, including policy making, is consistent with the Constitution: it must be lawful, rational and in compliance with the Bill of Rights. As both Mrs Suzman and Sr Columba would have asserted, this is not a task that may be shirked. Courts must carry out their important constitutional role with integrity and with seriousness of purpose. Neither legislation, nor conduct of the President, nor the making of policy are immune from the three core constitutional requirements of legality, rationality and compliance with the Bill of Rights.
Where courts consider that governmental action falls short of these standards, they are obliged to make appropriate orders of invalidity and to give reasons for their decisions. Inevitably, there will be times when government, and other parties that appear before the courts, disagree with the decisions of the courts and the reasons given for them. They are entitled to air their reasonable disagreement. And in my experience they do so, quite often, vociferously. But I conclude with the firm and simple proposition that the fact of such disagreement, whatever its source, cannot and should not deter the courts from performing their constitutional mandate.
FOOTNOTES:
[1] Helen Suzman In No Uncertain Terms (1993: Jonathan Ball, Johannesburg) at 7.
[2] Id at 114.
[3] Id.
[4] Id.
[5] See, for other examples, the interview with Mr Gwede Mantashe published in The Sowetan in which Mr Mantashe stated that: "the judiciary is actually consolidating opposition to government", that "there is a great deal of hostility that comes through from the judiciary towards the Executive and Parliament", and that judges were "reversing the gains of transformation through precedents." The full interview is be found on the constitutionally speaking website at: http://constitutionallyspeaking.co.za/full-sowetan-interview-with-gwede-mantashe/
As well as an article published by Adv Ngoako Ramatlhodi, chairperson of the parliamentary Portolio Committee on Justice, as well as a member of the Judicial Service Commission, where he stated that our constitutional framework reflects "a compromise tilted heavily in favour of forces against change" and "power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party." For the full text, see http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessions/
[6] See, the full text of the speech, at http://www.justice.gov.za/access-to-justice-conference-2011/20110708_ajc_zuma-speech.pdf
[7] Speech of President Zuma in Parliament, 1 November 2011, full text available at http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=22876&tid=47864.
[8] Jonathan Sumption QC, address delivered at Lincolns Inn, November 2011, reported in The Guardian. See the report at http://www.guardian.co.uk/law/2011/nov/08/supreme-court-appointee-judges-politicised.
[9] Section 24 of the Constitution provides:
'Everyone has the right -
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -
(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.'
[10] Section 33 of the Constitution provides:
‘(1) everyone has the right to administrative action that is lawful, reasonable and procedurally fair;
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights ...'.
[11] Section 32 of the Constitution provides:
'Everyone has the right of access to - (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise of protection of any rights.'
[12] See, for example, section 26 of the Constitution, which provides:
‘(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
(3) No one may b e evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.'
Section 27 of the Constitution also entrenches the right to have access to health care services; sufficient food and water; and social security.
[13] Cf the provisions of the interim Constitution of 1993 (Republic of South Africa Constitution, Act 200 of 1993) which did not bind the judiciary. The implications of that for the application of the Bill of Rights to common law are discussed in the various judgments in Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC).
[14] Section 8(2) of the Constitution.
[15] Section 172(1) of the Constitution.
[16] Section 172(2)(a) of the Constitution.
[17] See section 174(4) of the Constitution which regulates the appointment of Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice.
[18] See section 167(2) of the Constitution.
[19] See Mistry v Interim National Medical and Dental Council and Others 1998 (4) SA 1127 (CC).
[20] See S v Makwanyane and Another 1995 (3) SA 391 (CC).
[21] See S v Williams 1995 (3) SA 632 (CC).
[22] See S v Niemand 2002 (1) SA 21 (CC).
[23] See 1995 (2) SA 642 (CC).
[24] Executive Council, Western Cape Legislature and Others v President of the RSA and Others 1995 (4) SA 877 (CC).
[25] See President of the RSA and Another v Hugo 1997 (4) SA 1 (CC).
[26] See President of the RSA and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC).
[27] South African Medicines and Medical Devices Regulatory Act, 132 of 1998
[28] See Pharmaceutical Manufacturers Association of SA in re: ex parte President of the RSA and Others 2000 (2) SA 674 (CC).
[29] See Masetlha v President of the RSA and Another 2008 (1) SA 566 (CC).
[30] See Albutt v Centre for Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC).
[31] See Justice Alliance of SA v President of RSA 2011 (5) SA 388 (CC).
[32] Section 85(2)(b) of the Constitution.
[33] See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at para 58.
[34] Cited above n 30.
[35] Act 47 of 2001.
[36] Id at para 68.
[37] Cited above n 27.
[38] Id at para 68.
[39] Id at para 89.
javascript:;
[40] Id at para 90.
[41] id
[42] Premier, Mpumalanga and Another v Executive Committee, Association of state-aided schools, Eastern Transvaal 1999 (2) SA 91 (CC) at para 41; Masetlha v Presdient of the RSA and another 2006 (1) SA 566 (CC0 at para 77.
[43] See Dieter Grimm "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto LJ 383 at 391.
[44] Section 36(1) of the Constitution.
[45] S v Bhulwana 1996 (1) SA 464 (CC) at para 14.
[46] Etienne Mureinik "A Bridge to Where? Introducing the interim Bill of Rights" (1994) 10 SA Journal on Human Rights 31 - 48 at 32.
[47] Id.
[48] See sections 26(2) and 27(2) of the Constitution.
[49] 2001 (1) SA 46 (CC).
[50] Id at para 95.
[51] Id at para 99 (para 2(b) of the Order made by the Court).
[52] Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC).
[53] Id at para 135, para 4 of the Court's order.
[54] See Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) at para 161.
[55] Id at para 160.
[56] Pratap Bhanu Mehta coined this phrase. See its use, for example, in his oped article in the Indiian Express "Constitutional skirmish" of 10 December 2006.
[57] Mehta "With due respect, Lordships" in Indian Express March 11, 2007. http://www.indianexpress.com/news/with-due-respect-lordships/25375/2
[58] Mehta "With due respect, Lordships" in Indian Express March 11, 2007. http://www.indianexpress.com/news/with-due-respect-lordships/25375/2
Source: Politicsweb
A Forum for reason: Reflections on the role and work of the Constitutional Court
It is a signal honour to be asked to deliver this lecture in memory of Helen Suzman. There are many reasons why we should remember and honour Helen: her great courage, her principled and unwavering opposition to the policy of apartheid, her undoubted and consistent integrity, and her quick wit and dry sense of humour.
But the quality I should like to remind you of this evening is one less often mentioned: the extraordinary diligence and meticulous attention to detail with which she approached every task in her life, but particularly her responsibility as Member of Parliament. This personal quality had, according to Helen, a rather surprising source.
In her memoir, In No Uncertain Terms, she comments that whenever she felt like shirking something she knew she ought to do, she could hear Sr Columba, the head nun at Parktown Convent, where she went to school, whispering in her ear (with an Irish accent and no doubt firmly) "Do it child!" and, according to Helen, she always did.[1] I imagine that Sr Columba was perhaps the first and last person that Helen ever obeyed automatically.
In her years as an MP, she was a regular and informed speaker in the House -- she notes in her autobiography that she generally "tackled" (her word) fifteen ministers per session and that each speech took hours to prepare.[2] In addition, she put an average of 200 questions a year.[3] The answers to these questions provided information that would not have otherwise been available.
Reading through the volumes of the SA Institute of Race Relations Annual Survey of her years in Parliament, it is striking how often information provided, was sourced in answers to questions put by Helen. Famously, when chided by a Nationalist Cabinet Minister in the House for asking questions, as he put it, simply to embarrass South Africa overseas, she retorted "it is not my questions that embarrass South Africa, it is your answers".[4]
The seriousness of purpose that underlay Helen's approach to her work as a parliamentarian was exemplary. It recognised that the work of governance and politics is a serious business which needs to be undertaken with vigour, dedication and integrity. Helen was not a practitioner of what might be called the broad brush approach to factual or policy questions.
Instead, she recognised that good governance requires a mastery of detail as well as attention to principle. Accordingly, she took seriously the work of gathering and synthesising information and considering arguments from a range of angles, before taking a view on any problem. It is this serious-minded and painstaking approach to the exercise of public power, despite all the challenges she faced, especially as a lone member of the Progressive Party in Parliament for thirteen years, from 1961 to 1974 during the darkest days of apartheid, that I would particularly like to memorialise today,
Recent months have seen an increasing number of comments by ruling party politicians, critical of the role of the courts in our constitutional democracy.[5] Two of the most important have been by the President, Mr Zuma. In July, at the Access to Justice conference, hosted by the Chief Justice Ngcobo, the President stated in his speech that:
"Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms."[6]
Some concern was raised in the media about these remarks on the basis that they misconstrued the role of the courts in our constitutional democracy. But again, on 1 November 2011, in a speech given by President Zuma at the parliamentary hearing to say farewell to Chief Justice Ngcobo and welcome Chief Justice Mogoeng the President repeated the same concern:
"... we also wish to reiterate our view that there is a need to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation. Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government. I know that the last time we raised this point, we generated a heated debate within the legal fraternity, some of whom did not see that it is actually an affirmation of the separation of powers. This challenge is perhaps articulated clearly by Justice VR Krishma Lyer of India who observed that: Legality is within the court's province to pronounce upon, but canons of political propriety and democratic dharma are polemic issues on which judicial silence is the golden rule.""[7]
There are two themes underlying the President's remarks. The first is that the power of the Executive and the Legislature is being curtailed by the courts, and in particular, that the courts are interfering with the power of the executive and legislature to make what is referred to as "policy". The second is that "those who do not agree with the ruling party" are using the courts to help them "co-govern" the country. I am going to address both these concerns in my remarks today.
But first, I am briefly going to describe the role conferred upon courts, and particularly the Constitutional Court, by the Constitution; and provide a description of the way in which the Court has gone about its work in the first seventeen years of our democracy. Then I will consider what is meant by "policy" and what the role of the courts, and particularly, the Constitutional Court, is in relation to reviewing "policy". Finally, I shall briefly consider the question of the right of citizens to use the courts to protect the Constitution.
Before going further though, I should observe that the relationship between the judiciary and the executive and legislative arms of government in a democracy is often tense. This is, in part, because in a constitutional democracy the relationship between these arms of government is structured in a way to ensure that the power of each is checked or restrained by the other. This is what we mean by the separation of powers. There is no sovereign, unlimited power in a constitutional democracy. Instead, all power is constrained - for obvious reasons, for, as Lord Acton famously said: "All power tends to corrupt, and absolute power tends to corrupt absolutely" or as I have also heard it formulated, "all power is delicious, and absolute power is absolutely delicious".
The fact that many different democracies use the phrase "separation of powers" to describe the regulation of the relationship between the three arms of government can mask the fact that each constitutional framework has its own understanding of the relationship between the arms of government. The particular conception of the "separation of powers" in any particular constitutional democracy requires a careful analysis of its constitutional text as well as its constitutional practice.
Moreover, the precise contours of the doctrine of the separation of powers are, arguably everywhere, somewhat uncertain. As a result, the question, in effect, raised by the President - "what is the proper domain of the Courts?" - is a question which gives rise to sharply divided answers, not only in our democracy, but in many others as well.
Take the United Kingdom, for example, where parliament has historically been considered to be sovereign in that it is free to make any law it likes. Even there, the debate over the role of courts in the British democracy is vigorous. Just two weeks ago, Jonathan Sumption QC, the newest appointment to the British Supreme Court (as the Appellate Committee of the House of Lords was recently renamed), argued that the European Convention has required judges to deal with "matters (namely the merits of policy decisions) which in a democracy are the proper function of parliament and of ministers answerable to parliament and the electorate".[8]
He continued "parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy making. It is also the only way of doing so that carries any democratic legitimacy." You can see the startling similarity between these remarks and those made by President Zuma.
Accordingly, we should not immediately be alarmed when debates about the proper ambit of judicial power arises. It is a debate that is endemic in democracies. But the question of the proper role of the courts, and the Constitutional Court in relation to policy is a recurring question in our democracy. It is a serious question and, Mrs Suzman would have agreed, it warrants considered analysis and a serious response.
The role of the Constitutional Court
The Constitutional Court is the final court of appeal in constitutional matters. Although somewhat resistant to precise definition, a constitutional matter is a matter that involves the interpretation or enforcement of a provision of the Constitution. One of the key chapters of the Constitution is chapter 2 which contains the Bill of Rights and the ambit of the Bill of Rights in our Constitution is particularly broad. First, it includes not only the civil and political rights traditionally protected in a bill of rights, but also a wide range of additional rights such as environmental rights,[9] the right to just administrative action,[10] the right of access to information[11] and, of course, social and economic rights.[12]
Secondly, the bearers of obligations under the Bill of Rights are not limited to the state and its organs. Provisions of the Bill of Rights bind the judiciary in the exercise of its duties,[13] and also bind private individuals and corporations to the extent that the relevant right "is applicable, taking into account the nature of the right and the nature of any duty imposed by the right."[14] Given the breadth of the scope of the Bill of Rights in our Constitution, the range of constitutional matters is far broader than it would be were the Bill of Rights to be less expansive.
But in addition to the Bill of Rights, it is the task of the Courts, and the Constitutional Court in particular, to protect and enforce the other thirteen chapters of the Constitution as well. To give you some idea of the scope of this jurisdiction, a brief description of the contents of those chapters will be useful. The first chapter contains the founding values of the Constitution, the supremacy clause, the clauses on citizenship, the national anthem and flag as well as the language clause. Chapter 2, as I have mentioned, contains the Bill of Rights. The third chapter sets out the principles of co-operative governance which regulate the manner in which the three spheres of government must interact. The fourth provides for the composition, powers and procedures of Parliament. The fifth covers the Presidency and the National Executive. The sixth deals with provinces, the seventh, with local government, the eighth with the judiciary and the prosecuting authority. Chapter 9 provides for the state institutions supporting constitutional democracy such as the Public Protector, the SA Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. Chapter 10 regulates the public administration, chapter 11 the security services, including the SANDF and SAPS; chapter 12 the institution of traditional leadership and chapter 13 deals with finance. The final chapter deals with international law, and various other matters. All of these chapters dealing with constitutional structure are protected and enforced by the judiciary, and especially the Constitutional Court.
One of the founding values of the Constitution is the principle that the Constitution is supreme. It follows from this principle, as section 2 of the Constitution makes plain, that law or conduct inconsistent with the Constitution is invalid, and that obligations imposed by the Constitution must be fulfilled. Accordingly, the Constitution sets the parameters for the exercise of public (and to a lesser extent, private) power. No organ of state or arm of government has the power to act in a manner that is inconsistent with the Constitution.
The corollary of constitutional supremacy is a strong form of judicial review which permits courts, and again particularly the Constitutional Court, to determine what conduct is consistent with the Constitution. A further logical consequence of the supremacy clause is that a court, "when deciding a constitutional matter within its power" must declare law or conduct that is inconsistent with the Constitution to be invalid to the extent of its inconsistency.[15]
The Constitution ameliorates any inequitable consequences that may flow from this prescription by providing that the court may, in addition, make any "just and equitable" order including an order suspending the order of invalidity for any period and on any conditions to allow the competent authority which may be Parliament or a provincial legislature or an administrator an opportunity to correct the defect. The court may also limit the retrospective effect of the order of invalidity.
The special role of the Constitutional Court is recognised by a rule that an order of constitutional invalidity in respect of an Act of Parliament, provincial legislation or conduct of the President, will have no force unless it is confirmed by the Constitutional Court:[16] so it is only the Constitutional Court that can, in effect, declare legislation or conduct of the President invalid. The reservation of this power for the Court marks the Court's special place in our doctrine of the separation of powers, and no doubt, is the reason for the special rules relating to the appointment and terms of office of members of the Court.[17]
The work of the Constitutional Court
The Constitutional Court has handed down 422 judgments in its first 17 years of existence, a rate of just under 25 per year. This is not a prodigious judicial output, compared to other senior courts around the world. But that relatively low output needs to be assessed in the light of three considerations.
The first is that the Court has eleven members and the general rule is that all eleven judges sit in every case. Although there is no doubt that the size of the Court is valuable in many respects, it probably slows down the process of decision-making and writing. Just for example, to go round the table and permit every judge to air his or her views on a case, will often take an hour.
Secondly, the Court receives far more applications for access to the Court than it actually enrols for hearing. Each of these applications, which in the last four years that I was at the Court exceeded the number of cases heard on a ratio of between 3 and 4 to one (that is, an additional 75 to 100 cases per annum to those that are actually enrolled for hearing) are considered by all the judges of the Court, unlike other senior appellate courts which often delegate this decision making responsibilty to a few judges. As our Constitution stipulates that a quorum of the Court is eight, no one can be turned away from the court without at least eight judges having considered the matter.[18]
Finally, the issues that have come before the court in its first 17 years have been some of the most difficult considered by courts anywhere. They have ranged from issues that have attracted much public comment, such as the constitutionality of the death penalty, gay marriage and some high profile criminal matters, to grappling with issues relating to the interpretation and protection of social and economic rights, where there is no tried and tested path, to the questions of constitutional structure and relationship that involve interpretation of the provisions of the Constitution other than the Bill of Rights.
The fact that the Court has not been unduly burdened by cases, unlike the situation in other jurisdictions such as India or Germany, has meant that the Court has had the ability to spend time on each case it hears. Once a case has been heard, a post hearing conference of the judges is held at which the issues raised in the case are preliminarily debated and discussed. The practice has varied somewhat over the years: in early years the Court met immediately after the case was concluded, then more recently, one judge prepares a note identifying the issues for discussion, often suggesting a solution to them, and that note serves as the basis for the discussion. Once that discussion has been held, a draft is prepared, and then it is discussed again. At that stage dissents or concurrences may be prepared and then all the judgments are read through at a meeting by all the judges, where substance can be debated, and editing questions of style and formulation are also considered. The advantage of this full collegial engagement on each judgment has been the development of a shared collegial understanding of the jurisprudence which has been of great value to the court, in my view.
On my count, 147 of the 422 cases before the Court have required the Court to determine whether a provision in an Act of Parliament is inconsistent with the Constitution. Of those 147 cases, the Court found in 90 of them that the legislative provision under review was inconsistent with the Constitution, that is an average of just over five times a year. Interestingly, the average has not declined markedly over the period.
In the first five years, 29 legislative provisions were declared to be invalid. In the following five years, another 29 legislative provisions were declared invalid and since then (a period of not quite seven years), 32 have been declared invalid. In the seventeen years, 57 challenges to legislative provisions have been upheld.
It is important to note here that the provision may be a very small part of a legislative scheme. For example, in one case the Court held that section 28(1)(a) of the Medicines and Related Substances Control Act was inconsistent with the Constitution because it granted inspectors very wide powers to enter and search any place that the inspector reasonably believed medicines would be found.[19] The Court held that the powers of search were too wide to be consistent with the Constitution and struck them down. The remainder of the Act, of course, remained in place.
Of the 90 declarations of legislative invalidity made by the Court, the largest number, 22 have been in the field of criminal law and procedure. Perhaps the most well-known of these decisions is the decision declaring the implementation of death sentences to be inconsistent with the Constitution.[20] The court has also declared the corporal punishment of juveniles to be inconsistent with the Constitution[21] as well as the provisions for declaring people habitual criminals to the extent that such declarations imposed prison sentences of an indeterminate period.[22]
Approximately ten of the 22 cases related to rules that impose burdens of proof upon the accused which the court has held to be in conflict with the presumption of innocence. The most noteworthy of these was the very first judgment handed down by the Court which related to section 217 of the Criminal Procedure Act, a notorious provision during the apartheid years, which presumed that confessions that had been sworn to before a magistrate had been freely and voluntarily made and required the accused to prove the contrary.[23]
The second most common ground for declarations of constitutional invalidity has been inequality. Section 9 of the Constitution prohibits unfair discrimination on a range of grounds, including race, gender, sexual orientation, age and disability. The list of grounds is not closed, so that discrimination on another ground may be held to be unfair. The Court has upheld 20 challenges to the validity of legislation in the area of equality. Four of these have concerned discrimination on the ground of gender, 9 discrimination on the ground of sexual orientation, and 3 on the ground of race.
The third most common ground for declarations of invalidity have been the right of access to courts (section 34 of the Constitution). The Court has upheld 10 challenges in this area. As far as other provisions in the Bill of Rights are concerned, there has been 1 successful challenge on the ground of section 25, the property clause, (I should add that given current public debate about the role of the property clause in our Constitution, there have been 9 unsuccessful challenges based on this clause, a greater rate of failure than in relation to any other right), as well as 4 successful challenges relating to speech, 4 relating to the right of access to housing, 2 to freedom and security of the person, 3 to privacy, 3 to the rights of children and 4 to the right to vote.
There have been 13 successful challenges to legislative provisions regulating what might be described as constitutional structure issues: that is powers of the President, Parliament, provincial and local government.
Often the declaration of constitutional invalidity is not controversial, nor does it touch on what I think the President means when he refers to "policy", a matter to which I shall return in a moment. Many of the legislative provisions that have been struck down have been technical provisions rather than substantive provisions. It has been rare that large portions of legislation have been found to be invalid. Accordingly, it is not infrequent that the Minister responsible for the administration of the legislative provision under challenge appears in the Constitutional Court only to indicate that the government does not wish to argue that the legislation is constitutional, but only wishes to make submissions as to the appropriate order to be made by the Court to regulate the effect of the declaration of invalidity.
Sometimes, of course, the declaration of invalidity is controversial. The source of controversy can differ. Sometimes it is the public that does not like the declaration. The leading example of this, perhaps, is the death penalty case. At other times, the source of controversy can be with government.
In nearly seventeen years, the Court has had to consider challenges to the constitutional validity of conduct of the President, on my count, seven times. Four of these challenges were against President Mandela. Two of these were successful and two were not. The earliest concerned the legislation regulating the restructuring of local government (the Local Government Transition Act, 209 of 1993).[24] This legislation purported to confer powers on the President to amend the legislation which President Mandela purported to do in two proclamations, which were the subject of an urgent constitutional court challenge just before the first democratic local government elections were to be held. The challenge to this conduct was that the legislature may not empower the President to legislate and to the extent that the President had purported to do so, he had acted in conflict with the Constitution.
The court held unanimously though for different reasons that the empowering provision in the legislation was inconsistent with the Constitution. A majority of nine held that the Presidential proclamations were also invalid. Because of the imminent local government elections, the Court suspended the orders of invalidity for a period of a month to enable Parliament to be recalled to rectify the legislation. That evening, 22 September 1995, President Mandela went on national television to say that he accepted the decisions of the Court, that Parliament would be recalled, and that the constitutional defects in the legislation and proclamations would be rectified.
A presidential pardon made by President Mandela to single mothers who had committed less serious crimes was challenged on the grounds of sex discrimination but was not successful,[25] although the Court held that the pardons process was subject to the Bill of Rights and was constitutionally reviewable by the Courts. Similarly, President Mandela's appointment of a commission of inquiry into rugby was challenged, again, on appeal to the Court, unsuccessfully.[26] The final challenge related to the premature bringing into force of legislation regulating pharmaceuticals and medicines in April 1999[27] which was upheld.[28]
There were two direct challenges to conduct taken by President Mbeki during his term of office. The first concerned the termination of employment of the head of the national intelleigence agency.[29] This application failed and the second related to the process regulating presidential pardons which succeeded.[30] Under President Zuma, there has been one challenge, which was successful: it related to the purported extension of the term of Chief Justice Ngcobo.[31]
Challenges to presidential conduct are therefore rare. The principles that inform the determination of such challenges are relatively straightforward: the President must act lawfully, rationally and consistently with the Bill of Rights. I shall return to examine these requirements more fully in a moment.
Having looked briefly at the role and work of the Court, I am going to turn now to consider more closely the role of the Court in relation to policy-making, an issue raised in the speeches of the President that I referred to at the outset and one that has given rise to controversy in recent years.
"Policy" and the Constitution
The Constitution does not define "policy," although it does stipulate that "the development and implementation of national policy" is a task for the executive.[32] The Shorter OED gives a useful definition of policy as "a course of action adopted and pursued by a government." This is, I think, the sense in which the President used the word "policy" in the two speeches referred to above.
The Constitution does not define "policy" probably because policy is not a distinct legal category. Different legal tools can be used to implement "policy." So policy may be encapsulated in legislation, or through regulations made in terms of legislation, or it may take the form of executive instructions to bureaucrats or it may be pursued through the conduct of officials. These different tools have different constitutional and legal implications. Time does not permit me fully to elaborate these different consequences. At a general level, all policy, however pursued, must comply with the three constitutional constraints that I have already mentioned: the requirements of legality and rationality, and compliance with the Bill of Rights. Where policy is pursued through the tool of what is called "administrative action" in the Constitution, there are additional requirements of procedural fairness and reasonableness. The two questions -- what constitutes administrative action? and what does procedural fairness and reasonableness require? -- are questions beyond the scope of my address today.
The first constraint: Legality and the Rule of Law
The first constraint on the implementation of policy is that all government conduct must have a legal foundation: in the Constitution or in legislation. As the Constitutional Court formulated this principle in an early case: "it is central to the conception of our constitutional order that the Legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law."[33] This principle, referred to in our jurisprudence as the principle of legality, is based on the rule of law -- a founding principle in our democracy. The rule of law, at its most straightforward, means that power must be exercised in accordance with the Constitution and the law. Its implication is that legislation must be passed in accordance with the provisions of the Constitution and powers exercised by the President or government ministers must be conferred upon them by the Constitution or legislation.
The first question then is whether the tool selected to pursue a policy is authorised by law and the Constitution. An example of a recent case where the conduct of the President was held not to meet this requirement was the case of Justice Alliance of South Africa v President, RSA (which I have mentioned earlier).[34] This case concerned the purported extension of Chief Justice Ngcobo's term of office. The Court held that section 8(1) of the Judges Remuneration and Conditions of Employment Act[35] that purported to confer a power upon the President to request a Chief Justice who has become eligible for discharge from active service to continue to perform active service as Chief Justice of South Africa "for a period determined by the President". The Constitutional Court concluded that "... section 8(a) violates the principle of judicial independence. This kind of open-ended discretion may raise a reasonable apprehension or perception that the independence of the Chief Justice and by corollary the judiciary may be undermined by external interference from the executive. The truth may be different, but it matters not. What matters is that the judiciary is seen to be free from external interference."[36] The consequence of this conclusion was that both the legislation and the President's decision to extend the term of office of the Chief Justice, were held to be invalid.
The second constraint: rationality or the "some rhyme or reason" rule
The second requirement, that of rationality is, perhaps, the most misunderstood of the three requirements I am describing this evening. It is not onerous, for it requires only that there be some nexus or link between the purpose sought to be achieved by the relevant action or legislation and the terms of the legislation or character of the conduct. It perhaps might be called the "some rhyme or reason" rule. 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.
The first case dealing with this principle illustrates the point. In the Pharmaceutical Manufacturers case,[37] new legislation regulating the manufacture, sale and possession of medicines for human and animal use had been enacted by Parliament and brought into force by the President. But when it was brought into force, the necessary regulations that would make the Act effective had not yet been made and the result was that the new Act, which had repealed the old Act, was almost completely ineffective. The case therefore challenged the President's decision to bring the Act into force. The Court found that "the decision to bring the Act into force before the regulatory framework was in place, viewed objectively, is explicable only on the grounds of error".[38]
Accordingly, the court concluded that "[t]he President's decision to bring the Act into operation ... cannot be found to be objectively rational on any basis whatsoever. The fact that the President mistakenly believed that it was appropriate to bring the Act into force, and acted in good faith in doing so, does not put the matter beyond the reach of the Court's powers of review."[39]
The Court described the requirement of rationality as "a minimum threshold requirement applicalbe to exercise of all public power by members of the executive and other functionaries"[40] but emphasised that the standard of rationality does not permit courts to substitute their opinions as to what would be appropriate for that of the government . Given the requirement that any link between the decision or legislation and the underlying purpose, the Court noted that "[a] decision that is objectively irrational is likely to be made only rarely ...".
This "no rhyme or reason" test does not significantly impair the ability of the government to perform its necessary tasks. It does not permit a court to interfere with a decision of the government simply because it disagrees with it or considers that government acted in appropriately.[41] Instead, the Court has on several occasions emphasised that it "should be slow to impose obligations upon government which will inhibit its ability to make and implement policy effectively ... As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the Executive to act efficiently and promptly."[42]
It is important that the test of rationality remains a "no rhyme or reason test" and is not tightened to require a closer connection between the government purpose and the legislation or action in question. Setting a tighter test for rationality might well constitute an unwarranted intrusion into the legitimate constitutional space accorded to the legislature and the executive.
The third constraint: the Bill of Rights
All governmental policy, whether implemented through legislation, executive or presidential action or administrative law may not infringe the rights entrenched in the Bill of Rights. The legislature and executive as well as the courts are all bearers of obligations under the Bill of Rights, which means that they must respect, protect and fulfil the rights in the Bill of Rights. In a real sense, it is the provisions of the Bill of Rights that most sharply constrain the conduct of government, including the process of policy-making.
Yet the rights in the Bill of Rights are not absolute constraints. Under our constitutional order, rights are not "trump cards" that always take precedence over other concerns. Our constitutional order recognises that there will be times when one right in the Bill of Rights will be in tension with another, or where important public interests may require the limitation of rights and it accordingly permits the limitation of rights. In this regard our Constitution is similar to the German Constitution. The remarks of Professor Dieter Grimm, a respected former member of the German Constitutional Court in relation to the German Constitution are of equal application to ours:
"From the beginning, limitations of fundamental rights were regarded as normal, because all rights and freedoms can collide or can be misused. Harmonization of colliding rights and prevention of abuses of liberty are normal tasks of the legislature. The function of constitutional guarantees of rights is not to make limitations as difficult as possible but to require special justifications for limitations that make them compatible with the general principles of individual autonomy and dignity."[43]
Accordingly, a challenge to legislation based on a right in chapter 2 follows a two-stage process and a court, when considering a constitutional challenge to legislation, asks two questions: the first is does the legislation limit a right entrenched in the Bill of Rights? Should the court decide that the legislation does indeed limit a right, the next question that arises is whether the limitation is "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom"?[44] This affords the executive defending the constitutionality of legislation an opportunity both to lead evidence and present argument as to why the legislation is not unconstitutional.
How does the Court decide whether an infringement will nevertheless pass the test of justification? It considers whether the reason given by the government for limiting the right is sufficiently important to outweigh the impact it causes in limiting the right. This is essentially a proportionality analysis. The approach was summarised in an early decision of the Court as follows:
"In sum, therefore, the Court places the purpose, effect and importance of the infringing legislation on one side of the scales and the nature and effect of the infringement caused by the legislation on the other. The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be."[45]
The process of limitations analysis therefore permits the Court to consider the reasons proffered by government for the legislation under attack. In so doing, it affords a government an opportunity to set out its reasons for the limitation to persuade the Court, and the broader society, of the legitimacy of both its purpose and method. The function of the Court when determining challenges to legislation based on the Bill of Rights is thus twofold: most obviously, it serves as the guardian of fundamental rights; less obviously, but as importantly, it serves to create a forum for public debate about the reasons for the exercise of power. This role carries with it a conception of democracy which requires the exercise of public power to be accountable.
Thus government may enact legislation to pursue a policy it has adopted even if the legislation will limit rights. But if it chooses to do so, government must consider whether the purpose and scope of the provision that limits rights is reasonable and justifiable in the light of the invasion of the right. That is a question that should be considered both by the Minister introducing the legislation, and by Parliament during the parliamentary process.
The role of the Courts is thus not to thwart or frustrate the democratic arms of government, but is rather to hold them accountable for the manner in which they exercise public power. In Etienne Mureinik's celebrated formulation: our new constitutional order establishes a "culture of justification"[46] and "must lead to a culture of justification - a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion."[47] Nowhere in our constitutional order is the insistence on justification more visible than in the jurisprudence of rights. Our Constitution asks government to justify what limitations they wish to impose on rights, and empowers the courts to consider whether those justifications are convincing.
But it is not only relation to justification that the Court gives scope for flexibility to government. Our Constitution, unlike many others, protects not only civil and political rights, but also social and economic rights. In understanding the meaning of rights, the key question for lawyers is the parameters of the obligations imposed by the right. So, if I have a right of access to health care, against whom do I have that right, and what must that person do in relation to my right? The most difficult jurisprudential aspect of social and economic rights is determining the extent of the positive obligation they impose upon government to act to achieve the realisation of the right. A full consideration of this question is beyond the scope of my remarks today. A brief outline of the Court's approach is all that is possible.
The Constitutional Court has held that, at least in relation to the rights entrenched in section 26 and 27 of the Constitution, the scope of government's positive obligation to take steps to achieve the realisation of the rights of access to housing, health care and sufficient food and water, amongst others, is delineated by matching provisions in the Constitution which state that "the state must take reasonable legislative and other measures, within its available resources, progressively to achieve the realisation" of these rights.[48] The question in such cases, therefore, is whether the government has acted reasonably.
This aspect of the Constitution has required the Court on several occasions to assess policy adopted by the government. In the seminal early case, Government of the RSA and Others v Grootboom and Others,[49] the Court held that the government's housing policy was in breach of the obligations imposed upon government by section 26 of the Constitution in that it failed to "provide for any form of relief to those desperately in need of access to housing"[50] and ordered the government to to amend its program "to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations."[51]
Similarly, in the Treatment Action Campaign case,[52] the Court held that the policy of the government whereby Nevirapine would be administered to pregnant mothers living with HIV at only two clinics per province was in breach of section 27 of the Bill of Rights, and specifically the positive obligation imposed upon government by that provision to take reasonable steps within its available resources to progressively achieve the right of access to health care. The policy was not formulated in legislation, but had been adopted by the Department of Health, despite the fact that Boehringer Ingelheim, the manufacturers of Nevirapine, had offered Nevirapine to the government free of charge for a period of two years; and despite the fact that the World Health Organisation had issued guidelines stipulating that Nevirapine was an appropriate intervention to prevent mother to child transmission of HIV, and so should be administered without limitation.
The Court held that in the circumstances the policy adopted by government was not a reasonable policy and stipulated that the policy should be expanded to include all clinics in all provinces where adequate counselling and testing facilities existed for the administration of Nevirapine. The Court concluded, however, by noting that government would be free to introduce a different policy to reduce the risk of mother to child transmission of HIV "if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV".[53]
In sum, the approach of the Court has been to require government to explain why its policies in the field of social and economic rights are reasonable. Government must disclose to the Court "what it has done to formulate the policy, its investigation and research, the alternatives considered and the reasons why the option underlying the policy was selected".[54] This approach permits citizens to hold the democratic arms of government to account through litigation, but does not require government "to be held to an impossible standard of perfection".[55]
The effect of this approach is that the courts do not take over the task of making policy but they do require government to account to citizens for its policy decisions in the field of social and economic rights. The process of accounting for decisions in the field should improve the quality of decision-making without improperly restricting the choices available to government.
The right of access to courts
It is fitting now to turn briefly to the second question underlying the remarks of the President, and that is the suggestion that the approach of the courts has permitted "those who do not agree with the ruling party" to use the courts to help them "co-govern" the country. Section 34 of the Constitution guarantees that citizens have the right of access to courts. It follows that citizens may approach courts to protect rights where they consider that "policy" that has been adopted by government, whether in legislation or in other ways, infringes rights. If the "policy" meets the requirements of legality and rationality, and does not unjustifiably infringe rights, then such litigation will, of course, fail.
If, on the other hand, the "policy" (whatever form it may take) does not comply with the constitutional requirements, then the consequence will be that an order of invalidity will follow. What is clear, however, is that these are the only grounds upon which citizens may challenge government's actions. The grounds for constitutional review are therefore narrow. There is a clear public interest in ensuring that government's actions comply with the principles of legality, rationality and do not unjustifiably infringe rights. If government's actions are compliant with these constitutional requirements, government will succeed. Citizens' entitlement to ensure that government complies with these constitutional requirements does not diminish government's capacity to govern, nor does it entitle citizens to co-govern the country. It is only if courts were improperly to intrude on the legitimate domain of legislative and executive power that citizens' use of the courts would improperly diminish the powers of the legislature and executive. And it is that concern that I now consider.
The importance of judicial modesty and restraint
The scheme that I have outlined above illustrates the manner in which the actions of government are constrained by the principles of the Constitution. It would not be complete without a final comment about the need for judicial modesty and restraint. It is unarguable that South Africa remains a society deeply scarred by its history. The deep inequalities that persist are visible reminders of the effects of apartheid and colonialism. Until these scars are healed, the vision of our Constitution will not have been achieved. There is a great burden on government, in particular, to address this historic legacy.
Courts need to be modest about the judicial role in addressing the legacy of our history. They must recognise that their responsibility is primarily to ensure that government works within the threefold framework of legality, rationality and compliance with the bill of rights. Outside of this framework, it is not for courts to impede the functioning of government. There are reasons for this: the first is that the legislature, and indirectly, the executive are democratically elected arms of government, whose office is determined by popular vote. In South Africa, where democracy has only recently been achieved, the vote is precious and the principle of democracy dear. Courts must, and do, acknowledge this.
Secondly, courts are institutionally ill placed to make the complex decisions that policy requires. Why is this? First, judges have no experience in the field of policy formulation. Secondly, courts cannot dictate the issues they address, they are responsive to cases that come before them and often the picture they obtain is incomplete. Thirdly, the doctrine of precedent means that when the Constitutional Court decides cases, the principle that founds their decision binds all courts in the future. The doctrine of precedent is an important aspect of the rule of law, but it is peculiarly unsuited to application in the field of social and economic policy where governments often need to act expeditiously and even experimentally to seek to identify solutions to the pressing problems faced by the country.
In many cases, there is reasonable disagreement in our society as to what policies will best achieve the destruction of the apartheid legacy. Courts should take care not to limit unduly, government's ability to make the decisions as to which policies it chooses. Given the great challenges we face, and the lack of clear and agreed answers as to how they should best be tackled, courts should not tie government's hands more than the Constitution requires.
Courts must accordingly avoid what a respected Indian commentator has termed the jurisprudence of exasperation:[56] the tendency to reach decisions or make statements that are an expression of judges' exasperation with the state of affairs in the country, rather than on the basis of "carefully thought out arguments based on the law's possibilities and limits." [57]Reasoned arguments. In South Africa a jurisprudence of exasperation might result in the requirements of rationality being unduly tightened or in courts being too slow to accept that government's policies in achieving social economic rights are reasonable, or in insisting that government adopt the court's own views as to what is an appropriate government policy.
Such a result would be damaging, as Pratap Bhanu Mehta has observed. "Often judicial interventions, unless disciplined by law and carefully crafted, produce worse outcomes [than bad government policy]. In some ways judicial policy-making magnifies rather than corrects the deficiencies of executive policy-making. ... Ad hominem interventions based on nothing more than confidence in the judges' good intentions, are no substitute for a policy-making process."[58]
By and large, courts in South Africa have avoided a jurisprudence of exasperation. Government action is scrutinised to ensure that it is lawful, rational and in compliance with the Bill of Rights as the Constitution requires. Beyond these parameters, government must be, and is, free to act. It is important for courts to continue to be disciplined in this regard despite criticism that may come not only from government, but also from other sources.
In this regard, it is interesting to note that in India, public opinion and non-governmental organisations have often applauded judicial incursions into the sphere of legislative and executive power. Partly, this may be due to exasperation shared by citizens as well as judges with the actions of government. But these will be short-term gains, for courts cannot run a country effectively. Instead of a jurisprudence of exasperation, we should insist on a jurisprudence of accountability that ensures that the responsibility for government remains that of the legislature and executive, but insists that those two arms of government must account for their conduct, where required to do so, through the courts.
Conclusion
The challenges that face South Africa in building the society envisaged in the Constitution's Preamble are many and complex. Until the deep inequality that is a legacy of apartheid is eradicated, these challenges will persist.
I hope that in the course of my address, I have explained why our courts have an important role under our constitutional order to ensure that the provisions of the Constitution are honoured, and that includes the responsibility of ensuring that governmental action, including policy making, is consistent with the Constitution: it must be lawful, rational and in compliance with the Bill of Rights. As both Mrs Suzman and Sr Columba would have asserted, this is not a task that may be shirked. Courts must carry out their important constitutional role with integrity and with seriousness of purpose. Neither legislation, nor conduct of the President, nor the making of policy are immune from the three core constitutional requirements of legality, rationality and compliance with the Bill of Rights.
Where courts consider that governmental action falls short of these standards, they are obliged to make appropriate orders of invalidity and to give reasons for their decisions. Inevitably, there will be times when government, and other parties that appear before the courts, disagree with the decisions of the courts and the reasons given for them. They are entitled to air their reasonable disagreement. And in my experience they do so, quite often, vociferously. But I conclude with the firm and simple proposition that the fact of such disagreement, whatever its source, cannot and should not deter the courts from performing their constitutional mandate.
FOOTNOTES:
[1] Helen Suzman In No Uncertain Terms (1993: Jonathan Ball, Johannesburg) at 7.
[2] Id at 114.
[3] Id.
[4] Id.
[5] See, for other examples, the interview with Mr Gwede Mantashe published in The Sowetan in which Mr Mantashe stated that: "the judiciary is actually consolidating opposition to government", that "there is a great deal of hostility that comes through from the judiciary towards the Executive and Parliament", and that judges were "reversing the gains of transformation through precedents." The full interview is be found on the constitutionally speaking website at: http://constitutionallyspeaking.co.za/full-sowetan-interview-with-gwede-mantashe/
As well as an article published by Adv Ngoako Ramatlhodi, chairperson of the parliamentary Portolio Committee on Justice, as well as a member of the Judicial Service Commission, where he stated that our constitutional framework reflects "a compromise tilted heavily in favour of forces against change" and "power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party." For the full text, see http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessions/
[6] See, the full text of the speech, at http://www.justice.gov.za/access-to-justice-conference-2011/20110708_ajc_zuma-speech.pdf
[7] Speech of President Zuma in Parliament, 1 November 2011, full text available at http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=22876&tid=47864.
[8] Jonathan Sumption QC, address delivered at Lincolns Inn, November 2011, reported in The Guardian. See the report at http://www.guardian.co.uk/law/2011/nov/08/supreme-court-appointee-judges-politicised.
[9] Section 24 of the Constitution provides:
'Everyone has the right -
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -
(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.'
[10] Section 33 of the Constitution provides:
‘(1) everyone has the right to administrative action that is lawful, reasonable and procedurally fair;
(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
(3) National legislation must be enacted to give effect to these rights ...'.
[11] Section 32 of the Constitution provides:
'Everyone has the right of access to - (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise of protection of any rights.'
[12] See, for example, section 26 of the Constitution, which provides:
‘(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
(3) No one may b e evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.'
Section 27 of the Constitution also entrenches the right to have access to health care services; sufficient food and water; and social security.
[13] Cf the provisions of the interim Constitution of 1993 (Republic of South Africa Constitution, Act 200 of 1993) which did not bind the judiciary. The implications of that for the application of the Bill of Rights to common law are discussed in the various judgments in Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC).
[14] Section 8(2) of the Constitution.
[15] Section 172(1) of the Constitution.
[16] Section 172(2)(a) of the Constitution.
[17] See section 174(4) of the Constitution which regulates the appointment of Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice.
[18] See section 167(2) of the Constitution.
[19] See Mistry v Interim National Medical and Dental Council and Others 1998 (4) SA 1127 (CC).
[20] See S v Makwanyane and Another 1995 (3) SA 391 (CC).
[21] See S v Williams 1995 (3) SA 632 (CC).
[22] See S v Niemand 2002 (1) SA 21 (CC).
[23] See 1995 (2) SA 642 (CC).
[24] Executive Council, Western Cape Legislature and Others v President of the RSA and Others 1995 (4) SA 877 (CC).
[25] See President of the RSA and Another v Hugo 1997 (4) SA 1 (CC).
[26] See President of the RSA and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC).
[27] South African Medicines and Medical Devices Regulatory Act, 132 of 1998
[28] See Pharmaceutical Manufacturers Association of SA in re: ex parte President of the RSA and Others 2000 (2) SA 674 (CC).
[29] See Masetlha v President of the RSA and Another 2008 (1) SA 566 (CC).
[30] See Albutt v Centre for Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC).
[31] See Justice Alliance of SA v President of RSA 2011 (5) SA 388 (CC).
[32] Section 85(2)(b) of the Constitution.
[33] See Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at para 58.
[34] Cited above n 30.
[35] Act 47 of 2001.
[36] Id at para 68.
[37] Cited above n 27.
[38] Id at para 68.
[39] Id at para 89.
javascript:;
[40] Id at para 90.
[41] id
[42] Premier, Mpumalanga and Another v Executive Committee, Association of state-aided schools, Eastern Transvaal 1999 (2) SA 91 (CC) at para 41; Masetlha v Presdient of the RSA and another 2006 (1) SA 566 (CC0 at para 77.
[43] See Dieter Grimm "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto LJ 383 at 391.
[44] Section 36(1) of the Constitution.
[45] S v Bhulwana 1996 (1) SA 464 (CC) at para 14.
[46] Etienne Mureinik "A Bridge to Where? Introducing the interim Bill of Rights" (1994) 10 SA Journal on Human Rights 31 - 48 at 32.
[47] Id.
[48] See sections 26(2) and 27(2) of the Constitution.
[49] 2001 (1) SA 46 (CC).
[50] Id at para 95.
[51] Id at para 99 (para 2(b) of the Order made by the Court).
[52] Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC).
[53] Id at para 135, para 4 of the Court's order.
[54] See Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) at para 161.
[55] Id at para 160.
[56] Pratap Bhanu Mehta coined this phrase. See its use, for example, in his oped article in the Indiian Express "Constitutional skirmish" of 10 December 2006.
[57] Mehta "With due respect, Lordships" in Indian Express March 11, 2007. http://www.indianexpress.com/news/with-due-respect-lordships/25375/2
[58] Mehta "With due respect, Lordships" in Indian Express March 11, 2007. http://www.indianexpress.com/news/with-due-respect-lordships/25375/2
Source: Politicsweb
Tuesday, November 22, 2011
The bifurcated legal profession, an archaic and elite based system not compatible with our new constitutional ethos
The Minister of Justice has announced a Legal Practice Bill to restructure the legal profession and ease restrictions on entry into the profession to make it more representative.
The Bill contains important provisions including mandating one governing body for the legal profession. Absent from the proposals is the need for institutional transformation, better legal education and access to legal education.
Institutional changes namely the dismantling of the quaint and antiquated split profession and the elitism that accompanies the Bar and its attendant system of silk are essential. The Bar provides advocates a degree of freedom such as not maintaining a trust account nor adhering to accounting practices which attorneys are required to adhere to. Its historical origins and the grave collateral damage from this system are too serious to ignore. If ever a death was desirable, it's time to pull the plug on the split profession coupled with the implementation of a better legal education model. The current system benefits a few, produces consequences and incubates a mindset, which are not tethered to our constitutional ethos.
Institutions are important in channeling human behavior in certain directions and achieving certain results. The advocate's profession historically was not anchored in moral bearings and played a supportive role in apartheid. If one chronicles its past, it produced many shallow leaders and a blighted history of acting against struggle lawyers, who were struck off the roll of advocates at the behest of the Bar. Black lawyers had difficulty-obtaining pupilage.
The Bar has not dealt with its demons nor adjusted to the realities of our new constitutional order. The addict cannot self-medicate nor is it going to self-heal. The attorney's profession is not without its demons and fusion ultimately needs to address transformation within the entire profession. The structural impediments at the Bar are more intractable. The idiosyncrasies and oddities of the Bar is a relic from the British system suited to perpetuating an elite and class based system. In England, it has been chronicled that entry into and success at the Bar largely depends upon social connections. The Bar in South Africa partakes largely of white and male elite. These elites have historically reaped great financial rewards. The Bar sets its own fee guidelines in an opaque way without any public consultation. The traditional albeit suspect justification for the split profession is an independent barrister/advocate provides the client a separate independent opinion. There is substantial evidence that this ends up costing clients more money, which was highlighted by Sir David Clementi in his review of the legal profession in England. In England, there is a trend of solicitors keeping litigation work in-house employing in-house counsel, which saves clients legal costs.
Even though the Bar is not a statutory body, the legal culture has created a de facto situation, produced over a century, which evaluates and validates trial lawyering skills through the established Bar. Those that practice at the alternate Bar/s are relegated to a second-class status. Professional associations like trade unions are prone to group advancement even if this is at the expense of the needs of the larger society. Our Constitution has discarded the British Westminster system. Our bill of rights has both horizontal and vertical application. Freedom of association or autonomy has no talismanic quality that allows for a system of subordination, particularly when it impacts on access to justice or the rights of others to practice their profession based on equality.
The Bar is not about the bright and savvy succeeding where others fail, and the less accomplished at the bottom of the food chain fighting over scraps. It is about those driven by self-interest who by virtue of dubious historical factors, who are invested in certain outcomes. They are able to control who enters the profession and who benefits in an optimal way, wanting to keep things the way they are. Vestiges of the past, even from private actors, which perpetuate subordination, need to be dismantled.
There is nothing wrong with a program for specialists, implemented rationally under uniform conditions as could be the case with the medical profession. Under the current system, a law graduate might be refused entry into the establishment Bar (which is the first level to practice as an advocate), given that the Bar controls the number of pupils and the placement of the pupils in any given year. This might be alright in the elite based British system but not in a constitutional state that values equality and the right to practice one's profession. The German Constitutional Court in the Pharmacy Case held that a limit on the number of practicing pharmacists was unconstitutional because this amounts to a limitation on the freedom to choose an occupation. In that case, qualified pharmacists were prevented from practicing their trade in order to control competition. The court held this also violates the principle of equality. The case of the Bar is more egregious because a private association, which has acquired a status because of dubious historical factors, is enforcing the validation and numerical limitations.
The Bar also controls who is recognized as a "super advocate" to merit being called a "senior counsel" which entitles them to charge higher fees. Our Constitution demands rationality. There is a great opaqueness, which surrounds the awarding of senior counsel status leading many to believe it is an old boy "buddy buddy" network.
After the appointment of the new Chief Justice, the General Council of the Bar asked the respective Bar Councils to scrutinize judicial nominees more closely. Elites from the Bar are not getting onto the bench in the numbers they were accustomed to. There has been an outcry from arguably the most untransformed Bar, the Cape Bar Council because several of their members were passed over for judicial appointments. It is at its core an incursion and attempt to influence the selection of judges from a special interest group. One cannot help but gawk at the spectacle of a group that collaborated and benefited from a repressive system and which remains largely untransformed, performing the role of the unapproving and self appointed head master, to vet and certify suitable judicial nominees.
At the JSC hearings, a lot of frustration has been vented on individual nominees that came out of the hierarchal system. Of late, the hearings have become demonstratively nastier. Those that came through and benefit from the opiate of the Bar are prone to defend their privileges and the mantra of the Bar's virtues in validating who are the "best and brightest" advocates. This mind set can infect white and the few people of colour within the Bar alike. We cannot afford to go through years of JSC hearings scapegoating individual nominees, usually white males. Progressives need to engage in deconstruction of the racial, gender and power tilt, which produces the hierarchies and the form of subordination and mind set that is incubated within the Bar. Ultimately, our democracy requires dismantling institutions, which do not capture and frame the deep paradigm and normative shift of our constitutional order.
The supreme irony is the Bar operates in the worse tradition of the British class and elite based system, and sanctions its members if they deal with the public directly. One cannot fathom the absurdity of this and how can this be in conformity with our new constitutional ethos? It is from this isolated group, which operates under a rarified existence, the Bar would want appointments to the bench to be made. Democracy involves a connection between institutions and people. The courts represent the third branch of government. Under most legal systems, lawyers are considered as officers of the court. Interaction between lawyers and the broader society has to produce a better understanding of people's struggles, emotions, euphoria, aspirations or hard luck. Even in England, the Public Access Scheme introduced in 2004 allows Barristers under certain circumstances to deal directly with the public. Ultimately, our struggle for social justice will benefit from a change in the institutions of the profession. A judge that comes from the ranks of a legal profession connected with the community and client they served is more likely to have the profile the new social contract mandates.
It is incongruous that we have kicked this can down the road for so long. The timidity and failure to deal with the elite based legal profession, which does not comport with the paradigm and normative values of our constitutional order, is no longer an option. The challenge is how to truly transform the universities and the legal profession into instruments of change, which serve the South African population as a whole. That is what a new Legal Practice Bill must address.
By Ziyad Motala, Professor of Law Howard Law School and Extraordinary Professor of Law University of Western Cape.
Source: Legalbrief
The Bill contains important provisions including mandating one governing body for the legal profession. Absent from the proposals is the need for institutional transformation, better legal education and access to legal education.
Institutional changes namely the dismantling of the quaint and antiquated split profession and the elitism that accompanies the Bar and its attendant system of silk are essential. The Bar provides advocates a degree of freedom such as not maintaining a trust account nor adhering to accounting practices which attorneys are required to adhere to. Its historical origins and the grave collateral damage from this system are too serious to ignore. If ever a death was desirable, it's time to pull the plug on the split profession coupled with the implementation of a better legal education model. The current system benefits a few, produces consequences and incubates a mindset, which are not tethered to our constitutional ethos.
Institutions are important in channeling human behavior in certain directions and achieving certain results. The advocate's profession historically was not anchored in moral bearings and played a supportive role in apartheid. If one chronicles its past, it produced many shallow leaders and a blighted history of acting against struggle lawyers, who were struck off the roll of advocates at the behest of the Bar. Black lawyers had difficulty-obtaining pupilage.
The Bar has not dealt with its demons nor adjusted to the realities of our new constitutional order. The addict cannot self-medicate nor is it going to self-heal. The attorney's profession is not without its demons and fusion ultimately needs to address transformation within the entire profession. The structural impediments at the Bar are more intractable. The idiosyncrasies and oddities of the Bar is a relic from the British system suited to perpetuating an elite and class based system. In England, it has been chronicled that entry into and success at the Bar largely depends upon social connections. The Bar in South Africa partakes largely of white and male elite. These elites have historically reaped great financial rewards. The Bar sets its own fee guidelines in an opaque way without any public consultation. The traditional albeit suspect justification for the split profession is an independent barrister/advocate provides the client a separate independent opinion. There is substantial evidence that this ends up costing clients more money, which was highlighted by Sir David Clementi in his review of the legal profession in England. In England, there is a trend of solicitors keeping litigation work in-house employing in-house counsel, which saves clients legal costs.
Even though the Bar is not a statutory body, the legal culture has created a de facto situation, produced over a century, which evaluates and validates trial lawyering skills through the established Bar. Those that practice at the alternate Bar/s are relegated to a second-class status. Professional associations like trade unions are prone to group advancement even if this is at the expense of the needs of the larger society. Our Constitution has discarded the British Westminster system. Our bill of rights has both horizontal and vertical application. Freedom of association or autonomy has no talismanic quality that allows for a system of subordination, particularly when it impacts on access to justice or the rights of others to practice their profession based on equality.
The Bar is not about the bright and savvy succeeding where others fail, and the less accomplished at the bottom of the food chain fighting over scraps. It is about those driven by self-interest who by virtue of dubious historical factors, who are invested in certain outcomes. They are able to control who enters the profession and who benefits in an optimal way, wanting to keep things the way they are. Vestiges of the past, even from private actors, which perpetuate subordination, need to be dismantled.
There is nothing wrong with a program for specialists, implemented rationally under uniform conditions as could be the case with the medical profession. Under the current system, a law graduate might be refused entry into the establishment Bar (which is the first level to practice as an advocate), given that the Bar controls the number of pupils and the placement of the pupils in any given year. This might be alright in the elite based British system but not in a constitutional state that values equality and the right to practice one's profession. The German Constitutional Court in the Pharmacy Case held that a limit on the number of practicing pharmacists was unconstitutional because this amounts to a limitation on the freedom to choose an occupation. In that case, qualified pharmacists were prevented from practicing their trade in order to control competition. The court held this also violates the principle of equality. The case of the Bar is more egregious because a private association, which has acquired a status because of dubious historical factors, is enforcing the validation and numerical limitations.
The Bar also controls who is recognized as a "super advocate" to merit being called a "senior counsel" which entitles them to charge higher fees. Our Constitution demands rationality. There is a great opaqueness, which surrounds the awarding of senior counsel status leading many to believe it is an old boy "buddy buddy" network.
After the appointment of the new Chief Justice, the General Council of the Bar asked the respective Bar Councils to scrutinize judicial nominees more closely. Elites from the Bar are not getting onto the bench in the numbers they were accustomed to. There has been an outcry from arguably the most untransformed Bar, the Cape Bar Council because several of their members were passed over for judicial appointments. It is at its core an incursion and attempt to influence the selection of judges from a special interest group. One cannot help but gawk at the spectacle of a group that collaborated and benefited from a repressive system and which remains largely untransformed, performing the role of the unapproving and self appointed head master, to vet and certify suitable judicial nominees.
At the JSC hearings, a lot of frustration has been vented on individual nominees that came out of the hierarchal system. Of late, the hearings have become demonstratively nastier. Those that came through and benefit from the opiate of the Bar are prone to defend their privileges and the mantra of the Bar's virtues in validating who are the "best and brightest" advocates. This mind set can infect white and the few people of colour within the Bar alike. We cannot afford to go through years of JSC hearings scapegoating individual nominees, usually white males. Progressives need to engage in deconstruction of the racial, gender and power tilt, which produces the hierarchies and the form of subordination and mind set that is incubated within the Bar. Ultimately, our democracy requires dismantling institutions, which do not capture and frame the deep paradigm and normative shift of our constitutional order.
The supreme irony is the Bar operates in the worse tradition of the British class and elite based system, and sanctions its members if they deal with the public directly. One cannot fathom the absurdity of this and how can this be in conformity with our new constitutional ethos? It is from this isolated group, which operates under a rarified existence, the Bar would want appointments to the bench to be made. Democracy involves a connection between institutions and people. The courts represent the third branch of government. Under most legal systems, lawyers are considered as officers of the court. Interaction between lawyers and the broader society has to produce a better understanding of people's struggles, emotions, euphoria, aspirations or hard luck. Even in England, the Public Access Scheme introduced in 2004 allows Barristers under certain circumstances to deal directly with the public. Ultimately, our struggle for social justice will benefit from a change in the institutions of the profession. A judge that comes from the ranks of a legal profession connected with the community and client they served is more likely to have the profile the new social contract mandates.
It is incongruous that we have kicked this can down the road for so long. The timidity and failure to deal with the elite based legal profession, which does not comport with the paradigm and normative values of our constitutional order, is no longer an option. The challenge is how to truly transform the universities and the legal profession into instruments of change, which serve the South African population as a whole. That is what a new Legal Practice Bill must address.
By Ziyad Motala, Professor of Law Howard Law School and Extraordinary Professor of Law University of Western Cape.
Source: Legalbrief
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