FALLS THE SHADOW - THE ROLE OF OUR COURTS AND OTHER INSTITUTIONS IN THE ONGOING STRUGGLE FOR DEMOCRACY - General Council of the Bar of South ...
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FALLS THE
FALLS THE SHADOW
SHADOW
THE ROLE OF OUR COURTS AND OTHER INSTITUTIONS
IN THE ONGOING STRUGGLE FOR DEMOCRACY
by Max du Plessis SC, Andreas Coutsoudis and Jabu Thobela-Mkhulisi1
‘Between the idea
And the reality,
Between the motion
And the act
Falls the Shadow’2
I s Democracy Dying? This is the title of the May/June 2018 issue
of Foreign Affairs Magazine3 in which its editor, Gideon Rose,
poses the question whether democracy is dying in the United
and a world order founded on the rule of law and respect for
human rights are under threat.8 This anxiety is felt worldwide,
including on the African continent in general and in South
States. In one of the articles featured in this issue, Walter Russell Africa in particular.
Mead observes that “it is, in many ways, a stressful and anxious In this article, we consider the challenges to democracy and
time to be alive. And that anxiety has prompted a pervasive sense of the world order it underpins from a South African perspec-
despair about American democracy—a fear that it has reached a point tive. We discuss the signs of democratic regression that have
of dysfunction and decay from which it will never recover”.4 punctuated the last ten years and draw from the South African
In the context of increasing numbers of international mi- experience, particularly under the regime of President Zuma,
grants (reported to be 258 million in 2017),5 a world where a to highlight the pressures that were brought to bear on South
few are extremely wealthy while billions live in extreme pov- Africa as a young democracy. We argue, with reference to cer-
erty,6 the rise of authoritarian, nativist and even fascist, regimes tain representative cases, that it is because of constitutionally
and movements,7 and the scourge of corporate and govern- entrenched democratic principles and institutions and an active
ment corruption, there is an anxious sense that democracy citizenry that South Africa has withstood the challenges faced
22 Advocate August 2018
falls the shadow forum
by its democracy over the last decade. Finally, we emphasise been put to the test, and not only because the new ANC gov-
that it is precisely at moments of threat to democratic ideals, ernment that came to power in 1994 under President Mandela
that it has proved (and remains) essential for South Africa to had to deal with the legacy of centuries of racial discrimination
live up to the aspirational demands of its own Constitution, and socio-economic exclusion under apartheid and colonial-
and to seek, together with other States, to meet challenges ism before that. Particularly over the past ten years under the
with a principled and courageous foreign policy, guided by administration of former President Zuma South Africa has wit-
human rights and the rule of law. At a time when the world nessed numerous concerning affronts to its constitutional and
is in need of leadership that is inclusive, mature, and which democratic ideals, leading to anxiety, frustration and increased
confirms – rather than rejects – the values of multilateralism, tensions amongst South Africans. Corruption, the poor man-
accountability, and strength by unity, Africa stands poised to
make a significant contribution to international affairs. With the
Zuma years in the rearview mirror, there remains much to be
redone and rebuilt with the benefit of lessons learnt. Eyes will
be on our leadership for positive pointers about South Africa’s
future role on the global stage, not just being open to business
and trade, but as a trusted partner to other countries who want
to build a more sustainable, fair and tolerant future – to tackle
together issues like climate change, migration, trade, terrorism,
and international accountability, as obvious examples of global
issues that impact locally.
Writing in 1993, Nelson Mandela emphasised that South
Africa’s foreign relations would henceforth be based on the
belief that “human rights should be the core concern of international
relations”.9 He made clear that South Africa was “ready to play a
role in fostering peace and prosperity in the world we share with the
community of nations.” He committed South Africa to being at
the “forefront of global efforts to promote and foster democratic sys-
tems of government” and emphasised that “accountable government
is good government”.
After the elections of 1994 that signalled a peaceful transi-
tion from oppression to democracy, the country and indeed the
world was thrown into a sense of euphoria over the potential
South Africa had and the lessons to be extracted from her ex-
perience. “Rainbow nation” and “miracle nation” are phrases that
were frequently used to encapsulate the hope that South Africa
brought to the world.
Front and centre to that hope was the Constitution of the
Republic of South Africa. The Constitution recognised that the
advent of democracy in 1994 was not the endpoint in the long
Yolanda Booyzen
struggle for social justice, equality, and democratic freedom. It
was simply the beginning. Thus, the Constitution was intended
to be a transformative instrument, no mere entrencher of a
status quo already achieved. As the interim Constitution noted
in its epilogue, the Constitution was “a historic bridge between the
“A constitution that e nshrines
past of a deeply divided society characterised by strife, conflict, untold
suffering and injustice, and a future founded on the recognition of democracy, human rights and the rule
human rights, democracy and peaceful co-existence and development of law, demonstrates its true value and
opportunities for all South Africans, irrespective of colour, race, class, necessity, like all pre-commitment
belief or sex”. The Constitution set as its core values, and the devices, precisely when the siren calls
leitmotif of its transformative agenda, human dignity, equality, of political expediency and avarice are
freedom, constitutional supremacy, the rule of law, and ac-
at their loudest.”
countable democratic government.
Thus, the Constitution was the fledgling democracy’s bul-
wark to ensure that, as Mandela passionately proclaimed at
his inauguration, “never, never and never again shall it be that this
beautiful land will again experience the oppression of one by another
and suffer the indignity of being the skunk of the world”.10
Despite all the euphoria of the transition to democracy, and
in some respects because of it, the constitutional project has
Advocate August 2018 23
forum falls the shadow
agement of state resources and the systematic attempt to dis- ruption threatens to fell at the knees virtually everything we hold dear
able and dismantle independent state institutions (particularly and precious in our hard-won constitutional order. It blatantly under-
in an attempt to ensure that Zuma and his cronies did not face mines the democratic ethos, the institutions of democracy, the rule of
accountability for corruption) had left many South Africans, law and the foundational values of our nascent constitutional project.”
and indeed international observers, feeling that the dream of The Court ordered Parliament to amend the legislation to rem-
the rainbow nation was no longer achievable.11 edy the deficiencies so as to ensure that the independence of
But constitutions, conceived in hope, show their mettle in the corruption fighting unit was properly secured, so that it
times when democracy and the rule of law are under threat. could fulfil its mandate to investigate corruption, including in
And, indeed, a constitution that enshrines democracy, human government, without fear or favour. When Parliament, despite
rights and the rule of law, demonstrates its true value and ne- being ordered by the Constitutional Court to amend the un-
cessity, like all pre-commitment devices, precisely when the si- constitutional legislation, still failed to make sufficient amend-
ren calls of political expediency and avarice are at their loudest. ments to ensure the independence of the new institution, in a
At a time characterised by “structural disintegration, social subsequent case, brought by a public interest NGO, the Court
fraying and predatory looting”,12 the underlying democratic itself ultimately amended the legislation itself to ensure that
principles encapsulated in the Constitution were tested in the independence was guaranteed.14
crucible of numerous cases that were brought against President The government then, in what could only be seen as a bra-
Zuma and his government, often by public interest litigants. zen and deeply cynical move, proceeded to appoint a new head
Much litigation focused on rampant corruption, perhaps the of the independent corruption unit, who was clearly unfit for
most significant cause of declining optimism in the country’s office. This attempt by the government to stifle the institution
potential and the greatest attempt at eroding South Africa’s and its primary mandate (the investigation and uprooting of
democratic gains. These cases included a challenge to the the cancerous corruption at the heart of government and public
legislation that sought to replace South Africa’s independent institutions), was again challenged by public interest NGOs.
and highly regarded corruption fighting unit with an institu- Ultimately, the Court set aside the appointment.15
tion which lacked independence from the government which Another successful court challenge resulted, by way of ex-
it was tasked with investigating.13 The Constitutional Court ample, in former President Zuma being ordered to repay public
upheld the challenge and found that the failure to provide an funds that were used to effect upgrades to his private Nkan-
adequately independent corruption fighting unit violated both dla homestead.16 The case was effectively based on the Court
the Constitution and South Africa’s international obligations. confirming a finding by the Public Protector (whose role we
In compelling and emotive language the Court noted that “cor- discuss further below) that Zuma was liable for publicly funded
“The Constitutional Court’s judgment in graphic and powerful
terms began by sounding a clarion call for accountability and the
rule of law, while issuing a stinging rebuke to the avarice of the
Zuma-administration.”
24 Advocate August 2018
falls the shadow forum
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Page 2
During the Zuma-era, the courts were also confronted with
cases arising from the government’s attempts to bypass Parlia- “The South African nuclear case
ment (and simultaneously avoiding the public consultation
that Parliament is constitutionally mandated to ensure when
is thus a small but important ex-
it acts). One case stands out for particular discussion, at a time ample of a country – through its
when the world faces repeated news of evidence that the Rus- courts, and civil society – standing
sian government of President Putin is engaged in efforts to up to insidious attempts to under-
undermine and interfere in the democratic processes of other mine democracy.”
nations.17 The Western Cape High Court was faced with a chal-
lenge to the conclusion of an intergovernmental agreement
in relation to nuclear cooperation and procurement between
the Russian and South African Governments.18 The agree-
ment formed part of the Zuma government’s reckless pursuit ment’s massive secret nuclear deal with Russia – a deal that
of the trillion-rand procurement of new nuclear power plants would have threatened the country’s health, environment and
that was neither necessary nor affordable, and where concerns finances.”19 As the Guardian reported the court victory was a
had been raised that the agreement was the result of corrupt major setback for Putin’s plans to increase Russia’s income and
practices. The South Africa-Russia agreement made a number influence, and may have contributed to the fall of Zuma after
of substantive commitments in relation to nuclear procurement nine years in power.20 The South African nuclear case is thus a
(including granting the Russian government full indemnity small but important example of a country – through its courts,
from any liability and the right to veto the involvement of any and civil society – standing up to insidious attempts to under-
other country in the construction of the plants). The Zuma- mine democracy.
government sought to bypass the constitutional requirement In another attempt to bypass constitutional and democratic
that parliamentary approval must be sought and obtained to safeguards in relation to the conducting of foreign affairs, the
make international agreements binding on the Republic. The Zuma-government sought to withdraw from the International
Government had sought to achieve this by improperly tabling Criminal Court (ICC). This followed criticism levelled against
the agreement before Parliament under a section which did South Africa for failing to arrest Sudanese President Omar al-
not require parliamentary approval but merely notificatory Bashir pursuant to two arrest warrants issued by the ICC. This
tabling (which section was only applicable to run-of-the-mill occurred notwithstanding an interim Court order requiring the
agreements of no substantive moment, which did not war- government to prevent President al-Bashir’s departure from
rant parliamentary and public scrutiny). The Court, in an ap- the country, where he had been attending an African Union
plication brought by two environmental NGOs, set aside the summit, pending the determination of urgent litigation to com-
unconstitutional actions of government, and required that if pel the government to arrest him.21 Ultimately, the Supreme
the government wished to bind South Africa to the agreement Court of Appeal held that the government had violated its
it would have to obtain parliamentary approval (which would domestic legislation which implemented South Africa’s obliga-
involve a public consultation process). The case (which also tions under the Rome Statute by failing to arrest President al-
set aside certain domestic actions necessary for new nuclear Bashir.22 In October 2016, the government without any public
procurement) was widely viewed as the effective death knell of notice or consultation, and, importantly, absent parliamentary
the Zuma government’s pernicious nuclear build programme, approval, summarily deposited a notice of withdrawal from
broadly criticised as primarily aimed at the corrupt enrichment the Rome Statute with the UN Secretary General. This decision
of Zuma and his associates. was urgently and successfully challenged in the courts by the
The victory is not to be underestimated. The two activist official opposition party and numerous public interest NGOs.23
women behind the case were recently awarded the Goldman The Pretoria High Court found that government had violated
Environmental Prize, the world’s largest award honouring the Constitution by bypassing Parliament and simply deposit-
grassroots environmental activists, for “stopping their govern- ing a notice of withdrawal absent parliamentary approval (and,
Advocate August 2018 25
forum falls the shadow
Antoine de Ras
PIC TO BE SOURCED OR REPLACED
thus, short-circuiting the concomitant public consultation proc- the rot at the heart of the South African state. Indeed, as the
ess that a proper parliamentary approval process would have Economist noted, “[w]hat is unusual about South Africa is not
involved). The government was ordered to rescind its notice of that corruption thrives, but that it does so in plain sight. Thanks to
withdrawal, which it duly did, depositing the embarrassingly a history of civic activism, a free press and a robust judiciary, South
titled ‘Withdrawal of Notice of Withdrawal’ with the UN Secre- Africans are aware of the wholesale theft. Investigative journalists have
tary General.24 catalogued corruption at all levels of government.”25 For instance,
More recently, litigation has resulted from the Zuma gov- investigative journalists at different media houses collaborated
ernment’s decision in August 2017 to grant Grace Mugabe, the to analyse and break stories, over many months, arising from
wife of the then Zimbabwean President, Robert Mugabe, immu- hundreds of thousands of leaked emails (provided by whistle-
nity from prosecution following her, alleged, vicious assault of a blowers) that related to the Guptas, a family of businessmen at
young woman in South Africa. The decision to grant immunity the centre of the state capture allegations, who stand accused of
was taken, after a criminal case had been opened against Ms extensive corruption and the manipulation of state institutions
Mugabe for assault with the intent to do grievous bodily harm, and departments for their own enrichment.26
and notwithstanding that (and perhaps, precisely because) the Beyond merely engaging in public interest litigation, civil
prosecuting authorities had formerly advised the government society has actively sought to hold the Zuma-administration to
that there was a prima facie case against Ms Mugabe. This de- account and bring to an end a culture of impunity and the loot-
cision was recently challenged in the Pretoria High Court on ing of state resources. Various civil society organisations made
the basis that it was unconstitutional, unlawful, and violated sure that they could not be ignored. They demanded that their
rights in the Bill of Rights. The challenge was brought by an concerns be addressed, through rallies, protests and numerous
opposition political party, a public interest NGO, and the young engagements with government.27
woman who was allegedly assaulted, and is supported by a It is precisely because courts do not operate in a vacuum,
number of public interest NGOs (acting as friends of the court). and are, and must be, responsive to the political and societal
Judgment is awaited. moment in which they find themselves, that South Africa’s
But courts, and public interest litigants, do not operate in a irrepressible civil society and press also played another impor-
vacuum. Nor were they alone in holding the Zuma government tant role. In holding the Zuma-administration to account and
to account. ensuring transparency in the public square, the press and civil
South Africa has a free and vigorous press, staffed by coura- society effectively created the necessary space and context for
geous journalists. Throughout the Zuma-era the press, through the courts to make many of their brave decisions in defence of
conscientious investigative journalism, laid bare the extent of democracy, constitutional rights and principles: setting aside
26 Advocate August 2018
falls the shadow forum
“The South African
Constitution is
autochthonous.
It was not imposed
from afar. It is the
manifestation and
cornerstone of South
Africa’s peaceful and
negotiated transition
to democracy after
long years of struggle
against apartheid and
colonialism.”
government decisions at the highest level (including in rela- edies to deal with the resulting invalidity.34 Third, because of
tion to the staffing of constitutional institutions and the con- the guardian role that South Africa’s home-grown Constitution
ducting of foreign affairs), rewriting legislation, and stalling a envisages for the courts, at times of crisis and when constitu-
nuclear procurement program with the Russian government. tional principles and rights, including socio-economic rights,
In other times, and in different contexts, many of these deci- are under threat, it is to the courts that citizens have turned for
sions may have been criticised as unacceptable encroachments assistance. People defend institutions which defend them. A
upon executive power. Despite efforts by outsiders and some dramatic example of this is that in the midst of a social grants
within government to cast certain of the Court’s decisions as crisis in 2017, where it appeared that the provision of social
unacceptable judicial intrusion into the executive realm,28 and grants to some 17 million recipients35 was threatened with col-
with certain courts cautioning that not every political dispute lapse due to admitted maladministration by the government,
could be resolved by the judges,29 on the whole the judgments civil society organisations turned to the Constitutional Court.
were rightly lauded by a society that had lost trust in the Zuma- An urgent hearing was convened and a full judgment delivered
administration. a mere two days later.36 As the Court pointed out in its opening
This, of course, raises interesting and important jurispru- paragraph of its judgment, “[o]ne of the signature achievements of
dential questions about the role of courts in times of social our constitutional democracy is the establishment of an inclusive and
and constitutional turmoil; and how the South African courts effective programme of social assistance. It has had a material impact
were able to continue to make bold decisions, not only openly in reducing poverty and inequality and in mitigating the consequences
critical of government but even prescriptive of how it should of high levels of unemployment. In so doing it has given some content
act, while managing to retain their institutional authority and to the core constitutional values of dignity, equality and freedom. This
credibility, and with government still implementing30 and pub- judgment is, however, not an occasion to celebrate this achievement.
licly acknowledging that it will respect those decisions.31 We To the contrary, it is necessitated by the extraordinary conduct of the
cannot hope to do those issues justice in this article. However, Minister of Social Development (Minister) and of the South African
part of the answer may lie in three interwoven points. First, Social Security Agency (SASSA) that have placed that achievement in
the South African Constitution is autochthonous. It was not jeopardy.” In the judgment the Court crafted an order to ensure
imposed from afar. It is the manifestation and cornerstone of that social grants (the right to social assistance being a consti-
South Africa’s peaceful and negotiated transition to democracy tutionally protected right) would continue to be paid,37 under
after long years of struggle against apartheid and colonialism. a special regime which included not only regular reporting
It represents the hopes and aspirations, as well as the fears, of by government to the Court but also the creation of an expert
the disparate but united people of the new South Africa. It is panel to oversee the process and report to the Court. Yet, the
owned by them and claimed by them.32 Second, the Constitu- Court was mindful that the urgent national crisis confronting
tion itself recognises the role of the courts as the guardians of it and the country, while requiring it to step into the breach
the Constitution, and empowers them with the broad remedial created by government neglect, was testing the limits of its
powers they have used. The courts did not aggregate this role legitimate remedial power. In defending its order it pointed out
to themselves, rather the Constitution itself demanded it of that, “[i]t is necessary to be frank about this exercise of our just and
them. It emphatically states that the courts “must declare that any equitable remedial power. That power is not limitless and the order we
law or conduct that is inconsistent with the Constitution is invalid to make today pushes at its limits. It is a remedy that must be used with
the extent of its inconsistency”,33 and it then requires the courts to caution and only in exceptional circumstances. But these are excep-
exercise the broad discretion to devise “just and equitable” rem- tional circumstances.”38 Also, of note, in a first for the Court, and
Advocate August 2018 27
forum falls the shadow
Dumisani Sibeko
PIC TO BE SOURCED OR REPLACED
“Constitutionally
created and
empowered
institutions, such
as the Public
Protector, also
played their part.
Thuli Madonsela, the
public protector for
much of the Zuma-
era, was active
and effective in
investigating abuses
of power.”
as a mark of the Court’s displeasure at the apparent inaction Public Protector’s report),42 the Commission on State Capture,
by the Minister of Social Development, it sought to ensure that headed by the Deputy Chief Justice (as selected by the Chief
the Minister, who was ultimately responsible for the payment Justice) has been established and has begun its investigations.
of social grants, was, to the extent necessary, held personally During the Zuma-era, it was not only the courts, and
accountable: in its judgment it ordered the Minister to file an other constitutional institutions such as the Public Protector,
affidavit to show cause why she should not be joined in her that played their part in protecting our constitutional democ-
personal capacity to the litigation and ordered to pay the costs racy, human rights and the rule of law. Parliament (including
of the litigation personally.39 government-party MPs) has, albeit belatedly, in the face of
The above discussion of key cases and their implications is numerous admonitions by the courts and the groundswell
necessarily selective and brief. But it leaves us here: in the last of negative public opinion in relation to corruption, stopped
ten years South Africa has seen the����������������������������
importance of constitution- rubber-stamping decisions of state owned enterprises and gov-
ally entrenched independent institutions and mechanisms for ernment departments and has taken on a more robust role in
accountability and transparency, and, perhaps most important, scrutinising such decisions. And, in the 2016 local government
the need for an active and engaged citizenry and civil society, elections, given the widespread corruption and maladministra-
who are given proper constitutional agency. As Justice Cameron tion that had been allowed to flourish under the Zuma admin-
of the Constitutional Court, recently remarked, “Courts can give istration, voters began to turn away from the ANC. It lost con-
a constitution air and breath. The legislature and the executive can trol of the major metros, thus confronting, for the first time, the
give it muscle. But its lifeblood depends on an active citizenry.”40 risk of being relegated to a rural political party, and facing the
Constitutionally created and empowered institutions, such real possibility of a humiliating performance in the upcoming
as the Public Protector, also played their part. Thuli Madonsela, 2019 national elections. The 2016 election results and what they
the public protector for much of the Zuma-era, was active and betoken for the ANC played no small part in seeing the ANC,
effective in investigating abuses of power. In addition to the at its internal conference at the end of December 2017, elect-
investigation and report which ultimately forced Zuma to repay ing the pragmatic and principled Cyril Ramaphosa as its new
the public money improperly spent on his private residence, President, defeating President Zuma’s favoured successor (his
the Public Protector’s other reports range from a minister’s former wife). Within three months, President Zuma was forced
splurge on trips to Switzerland to visit his girlfriend using state to resign by the ANC, and Ramaphosa was sworn in as the new
resources,41 to the report on “state capture” which implicated President of South Africa. A few weeks thereafter, Jacob Zuma
former President Zuma and other public officials in illicit rela- sat humbled in a courtroom in Durban, facing over 700 charges
tionships with certain business associates aimed at the looting in relation to racketeering, corruption, money laundering and
of public funds on a grand scale. This report required President fraud. These charges had been reinstated by the prosecuting
Zuma to exercise his power to establish a commission of inquiry authority due mostly to the persistent litigation of the official
to investigate the state capture. The former President was re- opposition party. In October 2017, it eventually prevailed and
quired to appoint a judge chosen by the Chief Justice (this par- the decision by the Acting National Director of Public Pros-
ticular innovation by the Public Protector was included to pro- ecution in April 2009 to discontinue the prosecution of Zuma
tect against any attempt by President Zuma to compromise the on over 700 corruption charges was set aside by the Supreme
independence of any inquiry into corrupt activities in which Court of Appeal on the basis that the decision to stop the pros-
he was implicated). After more litigation (including a failed ecution was irrational and unconstitutional.43
attempt by former President Zuma to review and set aside the It is too early yet to predict whether President Ramaphosa
28 Advocate August 2018falls the shadow forum
will restore and rebuild all that was physically and meta- over democracy, and the once self-evident commitments to hu-
phorically broken in what may come to be thought of as South man rights, social justice, and the rule of law seem under threat,
Africa’s lost-decade. But there are already many reasons for South Africa has an important leadership role to regain. It has
optimism (including the appointment of two widely respected an opportunity to heed the demands of its own Constitution,
former Ministers of Finance, both of whom had been summar- and “take up its rightful and responsible place in the community of
ily fired by President Zuma from the position, 44 allegedly to nations.”47 A
further the aims of state capture, to head the National Treasury
and the Department of Public Enterprises respectively), and
hopes run high for the man that famously Nelson Mandela Notes
1 Du Plessis S.C. (KZN Bar, Ubunye Chambers; associate fellow at Chatham House,
wanted to succeed him as President. London and associate member of Doughty Street Chambers, London); Coutsoudis
One of the areas that is in need of urgent restoration is and Thobela-Mkhulisi (KZN Bar, Ubunye Chambers). This is a shortened version
South Africa’s international relations. Under the Zuma ad- of an article due to be published in the European Human Rights Law Review by
the same authors (“Falls the Shadow – Defending Democracy in South Africa and
ministration, South Africa lost its way, and its voice, in foreign Across the World”, 3 EHRLR 2018).
affairs. Vision and principle were replaced by the haphazard, 2 TS Eliot, The Hollow Men.
expedient, and short-sighted – perhaps best exemplified by the 3 Published by the Council on Foreign Relations, an independent, nonpartisan member
organisation, think tank, and publisher.
ill-fated attempt to withdraw from the ICC.45 4 Mead, Walter Russell. “The Big Shift.” Foreign Affairs. April 22, 2018. Accessed
As South Africa enters a new era its international relations April 22, 2018. https://www.foreignaffairs.com/articles/united-states/2018-04-16/
aims and engagements must once again be guided by the core big-shift.
5 United Nations, International Migration Report, 2017. Refugees and asylum seekers
values of its Constitution (human dignity, equality, freedom and make up approximately 10 percent of this number.
the rule of law) and the Constitution’s transformative commit- 6 Oxfam, Reward Work Not Wealth, January 2018.
ment and character – actively seeking to ensure a better future 7 See former US Secretary of State, Madelaine Albright’s recent article in the New
York Times, where she notes that “fascism — and the tendencies that lead toward
while fully cognisant of the injustice-riven realities of the pres- fascism — pose a more serious threat now than at any time since the end of World
ent. As a matter of domestic commitment and focus, the Consti- War II”. ‘Will We Stop Trump Before It’s Too Late?’, New York Times, 6 April 2018,
tution demands nothing less of the Ramaphosa administration https://www.nytimes.com/2018/04/06/opinion/sunday/trump-fascism-madeleine-
albright.html.
when it acts globally.46 8 See e.g. Haass, Richard N. “Liberal World Order, R.I.P.” Council on Foreign Relations,
Through its own weathering of the democratic storm over 21 Mar. 2018. Accessed April 21, 2018. https://www.cfr.org/article/liberal-world-
the last decade, and its once-thought-impossible peaceful tran- order-rip; The Economist, “Blessed are the peacemongers: The liberal order of the
past 70 years is under threat”, 21 Sept 2017 print edition. https://www.economist.
sition to democracy in the decade and a half before that, South com/news/books-and-arts/21729415-it-was-underpinned-movement-make-
Africa has both practical insights and a moral resilience gained waging-aggressive-war-illegal-and
the hard way. South Africa’s democratic lessons were forged in 9 Nelson Mandela, South Africa’s Future Foreign Policy, Foreign Affairs Vol. 72 (1993),
No.5
the crucible of a bruising past and its transition from apartheid 10 From Nelson Mandela’s inauguration speech, 10 May 1994.
to constitutional democracy, and - we believe - have been stress- 11 See e.g. The Economist, 9 December 2017, where the lead article and cover was
tested and strengthened in the last ten years under a venal and “The Corruption of South Africa”, which suggested a country broken by corruption
and ‘state capture’ - https://www.economist.com/news/leaders/21732114-avoid-
avaricious President. But its democratic future, as with all other dire-two-decade-dynasty-dysfunction-south-africas-ruling-anc-should-ditch and
nations, is not to be taken for granted, particularly at this time https://www.economist.com/news/briefing/21732086-ruling-african-national-
in world history. A stronger and inclusive democracy remains congress-ponders-choice-between-dynasty-and-reform-how-jacob-zuma
12 Edwin Cameron, ‘The Constitution is still our best practical hope’, Keynote, Sunday
vital for South Africa to achieve its Constitution’s transforma- Times Literary Awards, 1 July 2013, http://www.politicsweb.co.za/news-and-
tive commitments domestically. And as a member of the com- analysis/the-constitution-is-still-our-best-practical-hope-.
munity of nations, a stronger and safer world for South Africa 13 Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347
(CC).
lies in seeking joint solutions for the problems of a connected 14 Helen Suzman Foundation v President of the Republic of South Africa and Others;
world. Glenister v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC).
Perhaps most importantly, in an era of authoritarians and 15 Helen Suzman Foundation and Another v Minister of Police and Others) [2017]
ZAGPPHC 68; 2017 (1) SACR 683 (GP) (17 March 2017)
demagogues, when there is a sense that a shadow has fallen 16 Economic Freedom Fighters v Speaker of the National Assembly and Others; Demo-
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cratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11; coming to its end, precipitated the social grants crisis. See Black Sash Trust v Minister
2016 (3) SA 580 (CC). of Social Development supra at paras 40 – 52, and the previous judgment, AllPay
17 See, for example, the 24 February 2018, Economist, with the cover and Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of
lead story being “The Meddler: How Putin meddles in Western democracies” the South African Social Security Agency and Others (No 2) [2014] ZACC 12; 2014
https://www.economist.com/news/leaders/21737276-and-why-wests-response- (4) SA 179 (CC). For a full discussion of AllPay see Max du Plessis and Andreas
inadequate-how-putin-meddles-western-democracies Coutsoudis, ‘Considering corruption through the AllPay lens: on the limits of judicial
18 Earthlife Africa and Another v Minister of Energy and Others 2017 (5) SA 227 (WCC). review, strengthening accountability, and the long arm of the law’ (2016) 4 SALJ
19 https://newint.org/features/web-exclusive/2018/04/23/women-stopped-nuclear- 755.
deal 38 Black Sash supra para 51. The Court went on to point out that: “Everyone stressed
20 https://www.theguardian.com/world/2018/apr/23/goldman-prize-awarded-to- that what has happened has precipitated a national crisis. The order we make
south-african-women-who-stopped-an-international-nuclear-deal imposes constitutional obligations on the parties that they did not in advance agree
21 Southern Africa Litigation Centre v Minister of Justice and Constitutional Development to. But we are not ordering something that they could not themselves have agreed to
and Others [2015] ZAGPPHC 402; 2015 (5) SA 1 (GP). under our supervision had an application been brought earlier, either by seeking an
22 Minister of Justice and Constitutional Development and Others v Southern African extension to the contract that would have expired on 31 March 2017 or by entering
Litigation Centre and Others [2016] ZASCA 17; 2016 (3) SA 317 (SCA). into a new one.”
23 Democratic Alliance v Minister of International Relations and Cooperation and 39 Given the conflicting versions in the Minister’s personal costs affidavit and those
Others (Council for the Advancement of the South African Constitution Intervening) of the CEO of the social grants agency and the former Director General of the
[2017] ZAGPPHC 53; 2017 (3) SA 212 (GP). For fuller discussion see Max du Ples- Minister’s department (who had, unexpectedly, both filed affidavits questioning
sis Guénaël Mettraux, “South Africa’s Failed Withdrawal from the Rome Statute: aspects of the Minister’s affidavit), the Court, in a separate judgment, ordered a
Politics, Law, and Judicial Accountability”, Journal of International Criminal Justice, judicial enquiry to resolve the disputes of fact so that the Court could determine
Volume 15, Issue 2, 1 May 2017, Pages 361–370. whether the Minister had acted in good faith. See Black Sash Trust v Minister of
24 Currently the government is still reconsidering its position in respect of the ICC, Social Development and Others (Freedom Under Law NPC Intervening) 2017 (9)
and has not yet sought to approach parliament for approval to once again seek to BCLR 1089 (CC).
withdraw. 40 Edwin Cameron, Safeguarding the Constitution and the Rule of Law, 4th Congress
25 The Economist ‘The choice that could save South Africa, or wreck it’ Dec 9, 2017. of the Conference of Constitutional Jurisdictions of Africa, April 2017,
26 See generally http://www.gupta-leaks.com/, where much of this journalism has http://www.judiciary.org.za/images/phocadownload/ccja/CCJA-24-April-2017_
conveniently been collected. Justice-Edwin-Cameron.pdf.
27 By way of example, see https://www.savesouthafrica.org/. 41 The late Mr Sicelo Shiceka.
28 For example, in 2015, after the High Court judgment in the Al Bashir case discussed 42 President of the Republic of South Africa v Office of the Public Protector and
above, the Minister of Higher Education complained that the ‘judiciary tend to Others [2017] ZAGPPHC 747; 2018 (2) SA 100 (GP) (13 December 2017)
somehow overreach’ into areas that were for the executive and that there was a 43 Zuma v Democratic Alliance and Others; Acting National Director of Public Pros-
danger of Parliament and the executive being run by the courts (see https://www. ecutions and Another v Democratic Alliance and Another [2017] ZASCA 146;
iol.co.za/news/politics/sacp-calls-for-summit-on-judiciary-1882432). 2018 (1) SA 200 (SCA).
29 See the judgment by Davis J in Mazibuko and others v Sisulu and Others 2013 44 In December 2015, President Zuma fired Nhlanhla Nene as Minister of Finance.
(4) SA 243 (WCC) at 256E-H, warning that “Courts do not run the country, nor President Zuma appointed as Nene’s successor an unheard-of parliamentarian
were they intended to govern the country. Courts exist to police the constitutional with no relevant experience, which created such political and societal outrage,
boundaries, as I have sketched them. … There is a danger in South Africa however and economic turmoil, that was he forced mere days later to appoint the highly
of the politicisation of the judiciary, drawing the judiciary into every and all politi- regarded Pravin Gordhan, who had been Minister of Finance before Nene, to
cal disputes, as if there is no other forum to deal with a political impasse relating the position again. Then in March 2017, President Zuma fired Pravin Gordhan.
to policy, or disputes which clearly carry polycentric consequences beyond the scope Since taking over the Presidency, President Ramaphosa has restored sanity by
of adjudication.” appointing Nene as the Minister of Finance and Gordhan as the Minister of
30 By and large, that is. There were instance where orders were not implemented. Public Enterprises.
See ‘A Review of Concourt and SCA Decisions: Undermining or Empowering the 45 On this, see further Max du Plessis, “South Africa’s latest threat to withdraw from
Rule of Law?’ published on http://hsf.org.za/resource-centre/hsf-briefs/a-review- the ICC, or, How to Squander Leadership”. 11 December 2017, https://www.
of-concourt-decisions-undermining-or-empowering-the-rule-of-law on 6 September dailymaverick.co.za/article/2017-12-11-south-africas-latest-threat-to-withdraw-
2013. Oftentimes the failure to comply may have been attributed to lack of resources from-the-icc-or-how-to-squander-leadership/#.WuPzsy-B2gw
or skills. But there have been occasions of wanton non-compliance. Perhaps most 46 As the Constitutional Court recently emphasized, Mandela’s outline of
infamously was the government’s failure to comply with the court order requiring it South Africa’s future foreign policy in 1993 (that human rights should be
to ensure that President Al Bashir of Sudan was arrested pursuant to an international the core concern of international relations, and that South Africa should
arrest warrant issued by the International Criminal Court in relation to charges of be ready to play a role in fostering peace and prosperity in the world we
crimes against humanity, war crimes, and genocide. See Minister of Justice and share with the community of nations, and that the time had come for South
Others v South African Litigation Centre and Others 2016 2016 (3) SA 317 (SCA) Africa to take up its rightful and responsible place in the community of
paras 5-7. nations) “is echoed in the preamble to the Constitution where it is stated:
31 �������������������������������������������������������������������������������������
For an insightful article that considers how the Constitutional Court built and main- ‘We, the people of South Africa, . . . adopt this Constitution as the supreme
tained its institutional security from 1995 to 2006 see Theunis Roux ‘Principle and law of the Republic so as to –– ... Build a united and democratic South Africa
pragmatism on the Constitutional Court of South Africa’ (2009) 7(1) International able to take its rightful place as a sovereign state in the family of nations.’ ”
Journal of Constitutional Law 106. National Commissioner of Police v Southern African Human Rights Litiga-
32 See further Tembeka Ngcukaitobi The Land is Ours: Black Lawyers and the Birth of tion Centre and Another 2015 (1) SA 315 (CC)
Constitutionalism in South Africa, 2018: in which the author explicates and highlights 47 Nelson Mandela, South Africa’s Future Foreign Policy, Foreign Affairs Vol. 72
the role of many leading black lawyers in the historical development of South Africa’s (1993), No.5
bill of rights.
33 Section 172(1)(a) of the Constitution.
34 Section 172(1)(b) of the Constitution.
35 Of a population of 52 million, there are officially over 10 million social grants
beneficiaries, the number climbs to approximately 17 million, when one includes
the children in respect of whom the beneficiaries receive child care grants.
36 Black Sash Trust v Minister of Social Development and Others (Freedom Under Law
NPC Intervening) [2017] ZACC 8; 2017 (3) SA 335 (CC).
37 The Court ordered that the private company that had been making the payments
of all social grants on government’s behalf would have to continue to do so, given
that no-one else was in a position to provide the service. The private company’s
ongoing duty to continue to ensure that social grants were paid was sourced not in
contract but in the company’s constitutional obligations. The private company had
previously been paying social grants pursuant to a contract that the Constitutional
Court had declared invalid (due to unlawfulness in the tender pursuant to which the
contract was awarded), but which invalidity had been suspended by the Court to
ensure that grants were still paid while government either successfully appointed a
new private company by way of lawful tender or took over the service itself. Govern-
ments failure to do either, and to timeously advise the Court of its failure, prior to
the term of the social grants contract (kept in place by the suspension of invalidity)
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