When the interim Constitution was crafted it was described by the late Professor Etienne Mureinik as a bridge from a culture of authority to one of justification, where parliament and the legislature could no longer dictate as they pleased, answering to no-one but themselves.

Since 1994 courts are no longer bound to blindly apply ‘black letter law’ as found in legal texts, but judges are obliged in the new dispensation to consider the purpose of laws and to uphold the spirit, purport and values entrenched in the Bill of Rights. The manner of interpreting the law has thus changed substantially and judges can no longer render excuses for the application of unjust laws. This is the benefit of the system of judicial review – testing the constitutional validity of laws and policies - as currently applied in the Constitutional Court.

In short, the supremacy of the Constitution has replaced a corrupt system of apartheid rule, and the values of dignity, equality and freedom have become central to the judicial interpretation of the law. As a new jurisprudence of human rights is emerging, the trend has been to adopt a post-liberal interpretation of rights with an emphasis on socio-economic justice. Constitutional judgments dealing with the legal enforcement of socio-economic rights such as housing have reflected the importance the court places on the imperative of the socio-economic transformation of South African society.

In one of the most written about judgment of the CC, Government of the Republic of South Africa versus Grootboom, the majority of the court adopted a relatively tentative or cautious approach to the interpretation of the right to housing. In this case it was made clear by the judges that they did not intend to take over the functions of the other branches of government, and that they did not have the expertise to draft the state budget nor to develop and implement policies. In this case it was held that government should provide housing within the scope of available resources over a reasonable period of time.

Rather than prescribe to the executive how the objective of providing housing should be achieved, the court held that there should be gradual delivery within budgetary constraints. At that time, and since then, legal academics and commentators have criticised the court for not being activist enough in its interpretation of the enforcement of socio-economic rights, which requires the delivery of services in relation to institutional capacity. For the judges the aim was to ensure the realisation of these rights over time for the common good and not for the benefit of only a few. The reality is that Irene Grootboom, who had brought the case to court, died without a roof over her head a few years after the judgment.

Since the Grootboom case the court has to a certain degree shown more activism when it comes to issues of evicting “squatters” and the remedies available to them. In recent cases the court has argued for the active engagement of municipalities in resolving eviction disputes. In the Olivia Road case the court held that the City of Johannesburg had to find alternative accommodation for approximately 400 people living in two unhealthy and unsafe buildings prior to evicting them. The reasoning, as articulated by former Justice Albie Sachs in an earlier case, is that no-one should be rendered homeless.

From Grootboom to Olivia Road the Constitutional Court has shown its sensitivities to the importance of issues of societal transformation and can be described as having a ‘pro poor’ attitude. Since the inception of the court, commentators have been placing judgments under scrutiny and analyzing the effectiveness (or not) of judicial interventions. When it comes to assessing the impact of judgments, this happens on an almost ongoing basis.

For critics of the court who do not think that the judgments go far enough in ensuring the provision and enforcement of socio-economic rights in order to eliminate poverty and inequality, the judicial activism of the apex court in India could be used as an example of how an activist bench can contribute concretely to the socio-economic transformation of society.

The Indian Constitutional Court has not hesitated in cases of socio-ec0nomic rights to issue Directives that are not enforceable by the courts themselves but which constitute guidelines for the framing of laws and policies by the government. In this sense the court in India has been seen to be a champion and protector of the poor in terms of socio-economic rights litigation.

In South Africa the courts and judiciary are the guardians of the Constitution and therefore must function independently. And when it comes to human rights issues, the Constitution is supreme and cannot be negotiated away in political processes. It may, however, be argued convincingly that the law and the courts cannot be a-political vehicles of transformation. Every aspect of human life has political elements and issues of justice are related to various interpretations of the law.

So, rather than endorse the defensive stance taken against the review of the Constitutional Court, it would perhaps be wise to embrace this as part of the broader process of transformation. In the Minister’s discussion document on “the transformation of the judicial system and the role of the judiciary in the developmental South African state” there is no express mention of a review of the powers of the Constitutional Court, nor any other indication that the executive wishes to unjustifiably influence the judiciary.

In fact, In terms of the mandate for further research and investigation into the impact of the court’s judgments, four issues are highlighted: (a) an analysis of the impact of the court on the transformation of the state and society, especially around the improvement of socio-economic conditions; (b) an analysis of the impact of the decisions on other branches of government and compliance with decisions; (c) an assessment of judicial capacity to build a South African jurisprudence in line with the Constitution as supreme law; and (d) an assessment of the capacity of all spheres of government to give effect to the transformative laws of South Africa and the decisions of the courts.

This kind of “impact assessment” seems logical enough and perhaps it is good that we interrogate what kind of transformation is supported by all branches of government, and whether this transformation is being felt in the lives of all South Africans, especially the poor, marginalized and vulnerable. It is a moot point that rights on paper are worth nothing. But it should also be kept in mind that it is not for politicians to judge the law and the courts in terms of government policy, but for government policy to be informed by the Constitution and its underlying values. Ultimately, in a constitutional democracy all branches of government are accountable to the people, and so the legislature and executive must be placed under scrutiny in the same way as the judiciary.

The 'review' of the courts and judiciary being called for should therefore not be seen as a threat if conducted within legal and constitutional constraints as all aspects of governance are worthy of investigation and debate. But the question will always remain as to who judges the judges of the judges?
Ultimately, holding government to account is not only a civil society matter about where we are right now, but where we want our children to be in future.

Written by Dr Narnia Bohler-Muller
Deputy Executive Director, Democracy, Governance and Delivery (DGSD)
Human Sciences Research Council
E-mail: nbohlermuller@hsrc.ac.za