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The terms of reference for government’s controversial assessment of Constitutional Court judgments (and, now, of judgements by the Supreme Court of Appeal) published on the website of the Department of Justice and Constitutional Development on Monday night still leave the essential questions unanswered.

The terms of reference stipulate that the supremacy of the Constitution and the rule of law are principles which must guide the work of any institution bidding to conduct the review. Doubts about the initiative have been confirmed from the day when Presidential spokesperson Mac Maharaj said that the President’s remarks about a review of the Concourt’s powers should be seen against the background of the proposed assessment. The stipulation of the separation of the powers as one of the principles of the study is therefore a positive development. Without it, no reputable research institution could think of putting in a bid.

The litmus test for the assessment on this score is whether it tries to shift accountability for democratic progress away from the government and towards the courts. Here, too, the terms of reference take the line espoused by Constitutionalists in the ANC, such as Minister Naledi Pandor: the focus in 3.2 of the terms of reference is on the implementation by the state of decisions by the courts “with a view to highlighting the long term benefits to the broader population with regard to, inter alia, legislation, policies and programmes put in place to give effect to the judgements”. Any pretence that judgements in and of themselves are supposed to do a government’s work is thereby dealt with.

However, the assessment on socio-economic rights called for in 3 (1) (b) remains a double-edged sword, and the invitation in 3 (2) (c) to consider the capacity of the state within its available resources to realise outcomes envisaged by court decisions is similarly open to ambiguous interpretation.

The inclusion of the SCA

Given the government and ruling party’s anti-Constitutional pronouncements on the role of the courts, the inclusion of the Supreme Court of Appeals will instantly prompt concern. Only last week, Mr Jackson Mthembu, speaking for the ANC in the wake of the SCA’s decision that the National Prosecuting Authority should make the reduced record leading to its decision to drop charges against Mr Jacob Zuma available to the DA, said: “It is clear that democracy can be undermined by simply approaching the courts to reverse any decision arrived at by a qualified organ of state.” The exact opposite is true: democracy can be served, and sometimes saved, by approaching the courts to reverse decisions of questionable constitutionality.

But the SCA must in fact be part of any serious study: the artificial distinction between constitutional and other matters assigned respectively to the ConCourt and the SCA was dropped in the final Constitution in respect of the SCA’s jurisdiction. Judge Mohammed Navsa’s second clarion call in defence of the rule of law within four months only serves to underscore that fact.

The SCA is also the court with the real experience in developing the common law to come into line with constitutional values. Its ground-breaking work in advancing media freedom in defamation law since transition in 1994 is only one example of the “reform of SA jurisprudence and the law” which the assessment purports to seek in 3 (1) (a) and (d).

Direct access, costs, and other matters

It is more than strange that matters such as direct access to the Constitutional Court are included in this assessment when the Parliamentary Justice Committee is already seized with the question, raised by the DA in the course of deliberation on the 17th Constitutional Amendment Bill. The answer to the question posed – what happens in comparative jurisdictions – is that 96% of the work of the German Constitutional Court, on which ours is modelled, consists of the disposal of direct access cases. The German model, however, as appropriate as it may have been at transition, is not in the long term appropriate to a common law country such as ours. The Constitutional Court also has persuasive answers to the question put, received last week by the Justice Committee. What is it doing in the terms of reference?

As to costs, that is a problem that permeates our legal system and is not limited to these courts. As to the speed of finalisation of cases, that is a problem encountered especially lower down the judicial hierarchy. What is the agenda?

Why do we need this assessment?

The terms of reference still leave a number of essential questions unanswered.

There are plenty of academic/research studies on the contribution of higher court decisions to the reform of South African law under the Constitution. Some are complimentary and some are critical.

Why do we need state-sponsored assessments? What is meant by “debates and simulative views on constitutional rights that advance our democracy which will be gathered in a form of conference”? What are “simulative” views? Simulations? What is a “form of conference”? Form without substance? How does it override the three branches of the state and their respective competences? Where does it fit into the Constitutional scheme which this exercise purports to serve?

It is imperative that these and other questions pertaining to the controversial assessment be probed by the Justice Portfolio Committee. The Justice Minister must provide us with answers.

The terms of reference may be an improvement but why we need this assessment at all still remains unclear. What is the real agenda?