Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the Webber Wentzel Leadership Network
Programme Director,
Ladies and gentlemen.
Thank you for the kind invitation. I am honoured to be part of this exciting initiative, the Leadership Network, as it continues to develop young professionals.
14 November 1977 – the inquest into the death of Steve Biko begins at the Old Synagogue in Pretoria. Presiding is the Chief Magistrate of Pretoria, Marthinus Prins and representing the mother and widow of Biko is Sydney Kentridge, George Bizos and Ernie Wentzel.
The inquest runs for 15 days. The pathologists, both for the State and the family, agree that the cause of death was extensive brain injury caused by blows to the head. But the police deny that Biko was ever assaulted. They claim he bumped his head against a wall during a scuffle with police.
Kentridge writes about how Biko was treated after he had received his injuries. He says that he was stripped naked, his legs shackled and fixed to a grille, handcuffed for most of the time. He writes:
“He staggered, mumbled unintelligibly, did not take food or water, did not ask to go to the toilet, and was left lying on his urine-soaked blanket. The shackling and the nakedness were ordered by the Colonel. When asked why he had given such orders he replied that it was to prevent escape.
When asked why, for decency’s sake this shackled man should not have been allowed to wear a pair of underpants he replied that it was to prevent him from using them to commit suicide. This ludicrous answer was typical both of this officer’s disregard for the truth and of his contempt for the most basic human rights of any person unfortunate enough to fall into his power.”
The verdict came on the morning after the inquest had ended, and contained no reasons. It took at most three minutes to deliver. Marthinus J Prins found that "The available evidence does not prove that death was brought about by an act or omission involving an offence by any person."
I have been asked to discuss the separation of powers. What, you may ask, does the death of Steve Biko have to do with the separation of powers.
The inquest into Biko’s death – and, let me add, others who died in detention in the same year, but who were found to have allegedly hanged themselves or jumped from secure police buildings – starkly exposes the unspeakable horrors when there is no separation of powers, no checks and balances to hold public power to account.
In short, it shows us what goes wrong when the separation of powers goes wrong.
The doctrine of the separation of powers before the dawn of democracy was a farce. The magistracy at the time was not part of the judiciary – the magistracy were public servants, falling under the Department of Justice. They answered to the Minister of Justice – a member of the Executive.
As John F. Burns, writing for the New York Times, recalls about the presiding magistrate in the Biko inquest: “Mr. Prins, who rose to his position through the apartheid bureaucracy, without legal training, appeared at that moment, as he had throughout the inquest, to be disturbingly sincere, yet utterly blinded. Faithful servant of the apartheid system, he had given it the clean bill of health it demanded, and freed the police to continue treating black political detainees as they chose.”
And as for an independent judiciary, that was equally farcical. Judges were often appointed on the basis of political considerations. The bench was overwhelmingly white and male.
As a report by the Centre for the Study of Violence and Reconciliation notes, the judicial branch was not truly independent and did not effectively curb abuses of power by the other branches of government. Instead, says the report, “by upholding blatantly discriminatory and unjust legislation, the judiciary functioned as part of the apartheid legal order and contributed to legitimising and sustaining it.”
In addition, judges were often accused of being “executive-minded”.
In short, under parliamentary sovereignty the doctrine of the separation of powers really was diminished to a hollow legal term, existing in name only - whilst excessive state power continued, unabated, dehumanizing the majority of people of this country.
Our Constitution was to change that.
It is noteworthy that the term “separation of powers” is not expressly used in the constitutional text. As former Chief Justice Pius Langa argued the objective of the separation of powers “is to secure the freedom of every citizen by seeking to avoid an excessive concentration of power, which can lead to abuse, in one person or body”.
The purpose of separating powers between these three branches of state is to prevent an excessive concentration of power in one branch to the detriment of the others.
Our Constitutional Court has held that that in South Africa, as in other well-known constitutional designs, a complete separation of functions between the three branches of government was never intended. The Constitutional Court has confirmed that boundaries of the doctrine of separation of powers are flexible and undetermined, and shaped by each country’s realities, struggles out of which the Constitution, the supreme law, was carved.
Although the broad pattern of instituting some separation is apparent in all democracies, the degree of it differs.
In his landmark judgment on the subject, in the Van Rooyen judgment, Chaskalson CJ confirms this when he contended that different democracies have drawn the boundaries at different places depending on their constitutional framework and socio-political context, while maintaining the universally acknowledged core principles of judicial independence as articulated in the United Nations Basic Principles on the Independence of the Judiciary.
Having said that, judicial power should of necessity, be vested in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influences.
Ultimately, as is the case in most aspects of constitutional adjudication, it is all about striking an appropriate balance.
As Deputy Chief Justice Moseneke recently argued – “The tramlines of state power may be bright but not always certain and clear. Tension between branches of government is neither novel nor infrequent. Like all power struggles, they can be bitter and relentless… The judiciary makes rulings concerning other branches of government. But this does not mean that when judges do so, they automatically overstep their jurisdictional boundaries or are biased.
On the other side of the coin, courts must defer to the appropriate branch of government when they cannot properly decide a matter without invading their terrain. They may not usurp the role of other arms of state and may not compromise their impartiality.”
Discussions on the doctrine of the separation of powers and the so-called counter-majoritarian dilemma - where unelected judges use the power of judicial review to nullify the actions of elected public representatives in the executive or the legislature - are part and parcel of the constitutional law discourse and many legal arguments have been raised in respect thereof.
These arguments are particularly relevant in the area of socio-economic rights jurisprudence.
I would argue that there is nothing wrong, in a constitutional democracy and within the separation of powers, to critically debate perceived judicial overreach.
Such debates should not be viewed as attacks on the judiciary.
At the same time such debates must take place in a spirit of respect for the separation of powers and the integrity of the institutions of state.
The meeting held between the judiciary and the executive in August this year was the first of its kind in our democracy. The meeting has significantly contributed to the strengthening of our constitutional democracy. It is our conviction that such interactions can only advance and deepen our constitutional democracy.
We, the ANC-led government, have gone to great lengths safeguard the independence of the judiciary. We have passed various pieces of legislation, including a constitutional amendment, to further enhance and entrench the independence of the judiciary and the role of the Chief Justice as head of the judiciary.
When we change the Constitution, we do so to strengthen the independence of the courts, not to detract from it. In 2013, the President signed into operation the Constitution Seventeenth Amendment Act, as well as the Superior Courts Act.
These two Acts have fundamentally changed the landscape of our judicial system and our court system. The Constitution Seventeenth Amendment Act further entrenches the independence of the Courts and acknowledges the Chief Justice as the head of the judiciary.
The Superior Courts Act not only rationalises and consolidates the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa, but also recognises the desirability to provide for a uniform framework for the judicial management, by the judiciary, of all courts.
This includes the Magistrates Courts that were, before 1994, not constitutionally recognised as part of the judicial authority and were largely dealt with as an extension of the public service.
The Superior Courts Act further enhances the administration of the magistracy by placing magistrates in every Division of the High Court under the control of the Judge President of the Division concerned.
At the ANC’s last Conference in Mangaung it once again emphasised its commitment to the independence of the judiciary and the separation of powers.
In its 53rd Conference Resolutions, the ANC again reaffirmed the position that the branches of the state are co-equal parties entrusted with distinct constitutional powers in their quest to realize the ideals of a democratic South Africa.
Each branch of the state must therefore observe the inherent constitutional limitations regarding its own power and authority and no branch should undermine the others when exercising its constitutional mandate.
The NDP expressly contains the vision of a Judiciary-led court administration. One of the fundamental development goals of the NDP is to strengthen judicial governance and the Rule of Law by ensuring the independence and accountability of the judicial branch.
With regards to Parliament as the legislature, the Constitutional Court has struck down several pieces of legislation over the past two decades, and making use of different remedies, either referring it back to Parliament to remedy the defect within a specific time period or by way of a “reading in” remedy.
The issue of the separation of powers was once again in the news recently, in November, when the appeal of the matter of the DA v the Speaker of the National Assembly was argued before the Constitutional Court.
The case involves the constitutional validity of section 11 of the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act, which allows the Speaker or Chairperson of Parliament to direct the “security services” (the defence force, the police service and intelligence services) to remove or arrest a person creating or taking part in a disturbance within the Parliamentary precincts.
The case stems from events at the State of the Nation Address, earlier this year, when the Speaker directed police officials to remove the defiant Members of Parliament in terms of section 11 of the Act.
The DA subsequently filed an application in the Western Cape Division of the High Court challenging the constitutional validity of section 11 of the Act on the ground that it was incompatible with a Member of Parliament’s constitutional privilege of free speech and immunity from arrest.
Furthermore, the DA contended that the provision violates the principle of separation of powers by empowering the Speaker or Chairperson to order members of the security forces to arrest members during parliamentary proceedings.
The High Court held that the provision was constitutionally invalid to the extent that it permitted a member to be arrested for conduct that is protected by the immunity against arrest and the privilege protecting free speech.
The Court, however, did not rule on whether the provision violated the principle of separation of powers. It ordered a “notional severance” to bring the provision within constitutional bounds, subjecting it to a condition such that it would no longer permit violations of the privilege against arrest.
It suspended the order of invalidity for a period of 12 months, so as to allow Parliament to remedy the defect.
Before the Constitutional Court, the DA seeks confirmation of the High Court’s order. It also seeks leave to appeal against the remedy ordered by the High Court, as well as the Court’s decision not to address the separation of powers claim.
The applicants argued that the remedy still violates the principle of separation of powers by allowing the Speaker or Chairperson to order the removal or arrest of members of Parliament.
The respondents seek leave to appeal against the judgment and order of the High Court. They argue that the provision does not infringe a member’s constitutional privileges, but instead prohibits conduct or speech by members which stops, or threatens to stop, parliamentary proceedings.
In their view, this type of conduct and speech is not protected by the Constitution.
Additionally, they argue that the provision does not offend the principle of separation of powers because the intervention by security services under the provision does not usurp Parliament’s power, but instead facilitates its proper functioning.
According to reports, Deputy Chief Justice Dikgang Moseneke remarked that even the judiciary relied on the police to remove unruly people from court and allegedly suggested that for a breach of the separation of powers there needed to be some kind of intrusion into the core function of another arm.
He asked whether our model of separation of powers not ‘sufficiently elastic’ to allow one arm to assist another in ‘circumscribed circumstances’.
As judgment is reserved, we shall have to wait for the answer to that question.
This is of course not the first court judgment involving Parliament’s internal processes. Earlier this year, the Court in the Primedia v The Speaker of the National Assembly case, dealt with the issues relating to visual feed that was cut and the signal jamming. In this case the State Security Agency employed a device that jams mobile telecommunication signals. Journalists and MPs attending SONA were rendered unable to use their cellphones.
This, however, lasted for a short period as it was swiftly addressed by the relevant authorities. The applicants in the court case argued that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber.
The Cape High Court held that sections 59 (1) and 72 (1) of the Constitution provide that the NA and the NCOP must conduct their business in an open manner, and hold their sittings in public, but reasonable measures may be taken to regulate public access, including access of the media.
The Court agreed that the public has the right to know what happens in Parliament but said that that right cannot be absolute.
It held that if Parliament has seen it fit in its wisdom to place these limitations the only question is rather whether these limitations are reasonable. The Court held that SONA was classified as major in relation to the risks and security threats. One of the threats to be guarded against was the potential risk of hidden explosive devices which can be activated by the use of a radio signal of a cell-phone.
The Court held that it is important to note that the Agency used signal disrupting devices to ensure that the potential threat posed by such explosive devices (whilst the President, Deputy-President and dignitaries were outside the chamber) was effectively countered.
The Court concluded that Parliament is and remains an institution of State of the highest constitutional importance and that Parliament is constitutionally entitled to ensure its functioning and to protect its own dignity.
In conclusion, next year we will celebrate the 20th anniversary of the Constitution. It will be a time to celebrate, but also a time to reflect.
The separation of powers is one of the constitutional safeguards which ensure that none of our people ever experience human rights violations at the hands of the State. Our courts have delivered an impressive collection of constitutional jurisprudence which seeks to explain and define the parameters of the doctrine.
As we celebrate our Constitution’s second decade, let us all recommit ourselves to its values, aims and aspirations.
I thank you!
