The Institute for Accountability in Southern Africa

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Is the testing right of the courts in South Africa anti-democratic?

South African constitutional law is fascinating and controversial. It is probably the most interesting, challenging and complex jurisprudence of its kind in the world. What epitomises this, to a considerable extent, is the anti-majoritarian or counter-majoritarian dilemma. In countries where there are supreme constitutions, like ours, the courts, whose members are appointed and not elected, are expressly involved in interpreting the provisions of their constitutions and invariably in using a testing right in a process of judicial review, to invalidate legislation or executive conduct conflicting with it, giving rise the anti-majoritarian dilemma. This means that the ultimate and final word on constitutional issues is given to the courts who have the power to declare invalid legislation or conduct of a democratically elected parliament and executive respectively if it is in conflict with the Constitution.

This acute problem of reconciling the testing right of the courts with democracy in the United States is clearly illustrated by the famous judgment in of the United States of the Supreme Court in Brown v Board of Education, in which this Court in 1954 reversed a previous decision validating the policy of 'separate but equal' or segregation, and held that separate facilities for separate races were inherently inferior. This judgment plunged the Supreme Court into the maelstrom of political controversy in relation to race and the policy of segregation, and heralded the emergence of the historic civil rights movements on an inexorable scale in the United States. In this milestone judgment, the Supreme Court assumed a quasi-executive role and in effect initiated a new policy.

Even more so than the Brown case, Roe v Wade, has proved to be explosively divisive. This case related to the invalidation of legislation prohibiting abortion, an issue on which the American public is bitterly morally and politically divided. Judicial review and the testing right of the courts involves a body that is not elected or otherwise responsible in any significant way in telling the people's elected representatives that they cannot govern as they would like to. This is in clear conflict with the cardinal idea of representative democracy practiced in America. This decision has been scathingly and persistently criticized as being perceived as 'a statute in the guise of judicial opinion and therefore in effect, a judicial usurpation of the role and power of the legislature. According to a pre-eminent scholar, Prof Dworkin, this has resulted in a 'war' and has 'not flagged since'. He explains further that 'abortion is tearing America apart. It is distorting its politics, and confounding its constitutional law.' More than any other case, it illustrates the devastatingly controversial nature of the testing right and the anti-majoritarian dilemma, found in American law.

The testing right has also proved highly controversial in South Africa's tempestuous, colourful but troubled constitutional history with the exercise of such right in the Transvaal Republic in the famous case of Brown v Leyds. In this case, Chief Justice Kotze declared a law of the Volksraad (parliament) invalid, thereby bringing about a politically explosive constitutional crisis that led to his ignominious dismissal by President Kruger who, subsequently emphatically and irately declared , 'with appropriate Biblical allusion, that the testing right was a principle invented by the Devil'.

In the nineteen-fifties, the exercise of the testing right by the then Appellate Division of the Supreme Court of South Africa in relation to the entrenched provisions of the South Africa Act, created an unprecedented constitutional crisis and a battle royal relating to the notorious removal of coloured voters from the common voters' roll, between the Appellate Division of the Supreme Court and the Union Parliament that lasted for five years. It involved the controversial and questionable packing of the Appellate Division of the Supreme Court. The Harris and High Court of Parliament cases involved the testing right and was clearly anti-majoritarian, whereas the majority of the Court in last the case in this saga, the Collins case, represented a retreat from the politically problematic consequences of anti-majoritarism. Only the courageous dissenting judgment of Schreiner JA, was anti-majoritarian.

In the 1996 case of Executive Council of the Western Cape Legislature v President of the Republic of South Africa, the Constitutional Court used the testing right and invalidated a law of the democratic parliament of South Africa. This sensational case was brought about when President Mandela, acting in terms of the powers granted to him by proclamation in terms of the Local Government Transition Act, amended the main Act, by giving to him, as the President, the power to mark out local ward boundaries for the municipal elections in a manner favouring the ANC.

A political and constitutional crisis was looming perilously on the scene, which threatened to obstruct the conducting of nation wide, local government elections and stall the process of democratic transformation taking place in South Africa. This was aggravated by the National Party's pledge to take its cause to defend the Western Cape's autonomy to the streets by rolling mass action, if the courts did not defend it.

The Constitutional Court, headed Judge Chaskalson, in a carefully worded and judiciously reasoned judgment invalidated the President's proclamation and Parliament's amendment of the Local Government Transition Act. President Mandela responded to the Courts's judgment with characteristic statesmanship by praising the Constitutional Court's judgment and observing that 'this judgment is not the first, nor the last, in which the Constitutional Court assists both the government and society to ensure constitutionality and effective governance'. The President thereby with manifest maturity and tact, immediately defused a crisis situation which had arisen out of the anti- majoritarian dilemma, inherent in the nature of our Constitution. As a result, both the Court and the Mandela Executive emerged unscathed out of the crisis and had engaged the most fundamental questions of constitutional law and matters of grave public concern. This is in marked contrast to the almost belligerent attitude of the politically aggrieved apartheid government of Dr Malan, in the early 1950's to the seminal decision in Harris case, referred to above.

The Western Cape case represents a great victory for constitutional government, since for the first time the Constitutional Court had invalidated a highly politicized parliamentary statute, passed by a democratically elected and legitimate national legislature and a President, venerated and acclaimed both nationally and internationally for his moral and political courage and sagacity, who responded with characteristic magnanimity to the Court's decision. The great ship of state was thereby navigated by both the Constitutional Court and President Mandela through the turbulent seas of potentially hazardous conflict to reach safe and certain water.

Since 1994 with the new democratic dispensation, as a result of the kind of wise political leadership displayed by President Mandela in the Western Cape, case referred to and discussed above, we have avoided a constitutional crisis caused by judicial review and the anti-majoritarian dilemma, although some statements made by ANC politicians have disparaged the independence and legitimacy of the courts. So for example, at in a statement by the national executive on the occasion of the ANC's 93rd anniversary it was said that some judges see do not see themselves as "part of the masses" and consequently that there a challenge to "transform the collective mind-set of the judiciary to bring it into consonance with the vision and aspiration of millions engaged in the struggle to liberate our country from white minority domination".

In the turbulent times that lie ahead when the courts will, inter alia, have to take controversial decisions relating to President Zuma, Menzi Simelani and Judge-President John Hlophe, it remains to be seen whether the wise and magnanimous approach of President Mandela will continue in the future or whether the anti-majoritarian dilemma will cause a constitutional and political crisis.

Prof George Devenish is a DA Councillor with the Ethekweni Municipality.
He writes in his personal capacity

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