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2018-08-16
Justice or judicial overreach: Are Concourt’s declaratory orders cause for concern?


The constitutional court (ConCourt) case of Corruption Watch v the President of the Republic of South Africa (CCT331/17) (hereafter NPA Case), demonstrates how various branches of government can usurp the power of the other.

The Concourt in the NPA Case, not only ordered that the termination of the contract of the former National Director of Public Prosecutions (NDPP) was constitutionally invalid but, amongst others, also declared that the settlement agreement entered into between the former President, Minister of Justice and NDPP entered was unconstitutional and, as a result, the subsequent appointment to the NDPP of Advocate Shaun Abrahams, was constitutionally invalid.

What was eyebrow-raising to me was the declaratory orders of  11 and 12, which are as follows:

“11. During the period of suspension—

(a) a section 12(6)(aA) will be inserted after section 12(6)(a) and it will read:

“The period from the time the President suspends the National Director or a Deputy National Director to the time she or he decides whether or not to remove the National Director or Deputy National Director shall not exceed six months.”

(b) section 12(6)(e) will read (with insertions and deletions reflected within square brackets):

“The National Director or Deputy National Director provisionally suspended from office shall receive, for the duration of such suspension, [no salary or such salary as may be determined by the President] [her or his full salary].”

12. Should Parliament fail to correct the defect referred to in paragraph 9 within the period of suspension, the interim relief contained in paragraph 11 will become final.”

It raises my eyebrows because we must be vigilant as to how decisions by each branch of government are made, whether it is from the legislature, executive or judiciary.

The Constitution does not make specific reference to the principle of separation of powers; however, the doctrine originates from Constitutional Principle VI of the Interim Constitution of 1993 which provided that 'There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.'  The final Constitution adopted in 1996 had to give effect to this principle.

The principle is premised that each branch of government is independent, has a separate function and unique powers that the others cannot infringe upon.  The doctrine therefore recognizes the functional independence of the three branches of government, namely, the legislature, the executive and the judiciary.  In other words, it recognizes that there is a division of tasks between those institutions which make the law, those which implement the law and those which enforce the law.

One should not usurp the functions and responsibilities of the other.  In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another.  No constitutional scheme can reflect a complete separation of powers: the scheme is always one of partial separation.

The constitutionally invalid sections 12 (4) and (6) of the National Prosecuting Act (NPA Act) refer to an extension of office an NDPP who is otherwise eligible to retire on the grounds of age and the other makes provision for an indefinite suspension of an NDPP by the President without pay or with such pay as the President may determine.

This order was sought in abstract, meaning that the request from the Council for the Advancement of the South African Constitution (CASAC) was not based on the facts before the court which was the constitutionality of the termination of the contract of the former NDPP and the settlement agreement that followed therefrom. 

The Concourt, however, entertained the request on the basis of public interest and because the mere existence of the powers created in sections 12 (4) and (6) could subtly create opportunities that could undermine independence of the NPA.  The sections were also susceptible to occurring without detection.  An NDPP may refrain from acting independently because she or he fears indefinite unpaid suspension and a renewal may invite a favour-seeking disposition from the incumbent.

The Concourt therefore confirmed the High Court order in that sections 12(4) and (6) were constitutionally invalid.  It is within the mandate of the Concourt to interpret the Constitution and ensure that any law, such as the NPA Act, complies with it.

What raises my eyebrows is that the Concourt actually usurped the law-making function of Parliament by drafting an inclusion clause of Section 12(6)(aA) and amended section12 (6)(e).  The Concourt further orders that if Parliament fails to amend the NPA Act within 18 months, then its order will stand.  Section 55 of the Constitution provides that Parliament has the law-making function.  The Judiciary therefore usurped this function. 

Sections 59 and 72 of the Constitution prescribes that the public must be involved in the law-making process.  The Concourt itself nullified bills from Parliament on the basis of a lack of public involvement.  One could argue that the Concourt acted in contravention of its own rules.

The Concourt emphasises its motivation is the section 172(1)(b)[1] of the Constitution empowers it – where justice and equity dictate, to go so far as to make orders that are at odds with existing law.  It also typifies the difficult situations that explain why the framers of the Constitution may have decided to avert those situations by expressly including this expansive remedial power.

The issue of one branch usurping the power of another was discussed robustly in the Concourt case of Economic Freedom Fighters v the Speaker of Parliament (CCT 76/17).  Chief Justice Mogoeng Mogoeng, in his dissenting judgement, characterised the ruling or majority judgment as a textbook case of judicial overreach, that is “a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament.  In this case, the Concourt ruled that the National Assembly (NA) failed to make rules regulating the removal of the President in terms of section 89(1) of the Constitution and ordered the NA to make such rules without delay.  Deputy Chief Justice Zondo agreed with the Chief Justice and emphasised that Parliament already had rules in place for the establishment of an ad hoc committee.  The Concourt was clearly split on the issue of how far the it could reach into the terrain of Parliament.

Was this another form of judicial overreach?  Why did the Concourt not refer the drafting of clauses to Parliament as section 172 (1) (b) makes provision for?  Although, these questions can only be answered by the Justices themselves, some of the declaratory orders made by the Concourt should make any constitutional lawyer feel uncomfortable.

 

Zelna Jansen

Director

Zelna Jansen Consultancy

 

[1]Powers of courts in constitutional matters

172. (1) When deciding a constitutional matter within its power, a court—

(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including—

(i) an order limiting the retrospective effect of the declaration of invalidity; and

(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.