Balancing the separation of powers

In a finely balanced decision handed down on Thursday, 22 June 2017, by a unanimous bench, the Constitutional Court has found that it cannot direct the Speaker of the National Assembly, “to make all the necessary arrangements to ensure that the motion of no confidence . . . is decided by secret ballot, including designating a new date for the motion to be debated”.

Chief Justice Mogoeng found; “that no legal basis exists for that radical and separation of powers-insensitive move. The Speaker has made it abundantly clear that she is not averse to a motion of no confidence in the President being decided upon by a secret ballot.” The court has thus left the decision in the hands of the Speaker.

It is therefore ironic that Meokgo Matuba, the secretary general of the ANC Women’s League, has said in a lengthy interview that “It is like we are co-governing with the courts as the ANC.”

She is of the view that Chapter 9 institutions have over-stepped their authority over the years and decisions of Parliament and the executive were routinely challenged by opposition parties. This view is certainly one the court is aware of. In many interviews for judicial appointment, candidates have been asked what their view is on separation of powers. Most of them have correctly answered that, in the words of one candidate;

“There are three branches of government: the Legislative, Executive, and Judiciary. The Legislature promulgates the rule of law, the Executive enforces the law, and the Judiciary oversees that the laws and the execution of the laws is in line with the Constitution. It is a principle entrenched in our Constitution, which makes a clear distinction between the three functions of government (the legislature, executive and judiciary), supported by a system of checks and balances to ensure accountability and that no arm of government abuses its power.”

To suggest the courts are co-governing implies that they issue judgements in a vacuum. In fact, they are approached by parties who have rights and are in a conflict with another party. Both parties go to court to have the dispute settled.

In a recent piece for the Daily Maverick, Raymond Suttner wrote that:

“The resort to the courts over Nkandla and the social grants issue became vital because Parliament, through the ANC’s majority, was not holding the executive to account. In a sense, the judicial decision was both a legal victory and a political gain, defending hard-won rights of the people of South Africa.”

Ms Matuba expressed frustration at the fact that the Constitutional Court is a court of final instance and its decision can not be overturned.

“They [judges] are human beings; there can be an error in judgment, but when you are unhappy what do you do?” Matuba asked.

Ms Matuba perhaps overlooks the fact that the Court generally has the views of other inferior courts (meaning lower courts, not ones that are less good) in making their decision. The matter has already been appealed. And there must be a final arbiter.

There is certainly a risk that an intense strain is being put upon the courts, in the absence of properly functional political institutions. We have noted before the prescient words of Justice Moseneke in a recent speech;

“Plainly, courts have become sites of resolving disputes on political power and rivalry absent other credible sites for mediating political strife. A properly functioning democracy should eschew lumbering its courts with so much that properly belong at other democratic sites or the streets.

We will over time over-politicise the courts and thereby tarnish their standing and effectiveness.”

The court continues to tread a fine line. They are driven to the decisions that they take by the litigants before them. The notion of problematic “co-governance” is a fig leaf for the fact that the state continues to lose cases, as a result of bad legal advice and bad instructions given to state lawyers.