Alistair Price: Judicial Review Under Stress in South Africa
The overlap between administrative and constitutional law in South Africa has been lucidly explained by two recent posts on this blog by Kate O’Regan and Cora Hoexter. The Bill of Rights includes a ‘right to administrative action that is lawful, reasonable and procedurally fair’ (s 33 of the Constitution), which is given effect by way of national legislation codifying the grounds of review (Promotion of Administrative Justice Act, 3 of 2000 or ‘PAJA’) which applies to ‘administrative action’ as statutorily-defined. In addition, the Constitutional Court (‘CC’) has developed a distinct constitutional principle of legality, grounded on the ‘rule of law’ – a value explicitly entrenched in s 1 of the Constitution. The principle provides a second route to judicial review of exercises of public power. It has been held to impose norms of good faith, lawfulness, and rationality, while rationality, in turn, has been held to imply a need for procedural fairness and reason-giving in appropriate cases, as well as a need not to ignore relevant considerations. However, the proper relationship between these two routes of judicial review remains unsettled. Should applicants have a free choice to rely on either the constitutional principle of legality or PAJA? Or should the former only be available as a backup where PAJA is inapplicable (where, for example, the exercise of public power under consideration does not constitute administrative action)?
This question about the conceptual furniture, so to speak, of judicial review in South Africa is not the only fundamental challenge to public lawyers in this part of the world. Another arises from the broad scope of the constitutional principle of legality and rationality. This is said to apply – in principle – ‘to the exercise of all public power by members of the executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution, and therefore unlawful’ (Pharmaceutical Manufacturers  ZACC 1 at paragraph 90). It appears, then, that no exercise of public power lies beyond the discipline of the rule of law via judicial review. Yet one might ask whether unrestricted growth of the scope of judicial review on this basis might, ironically, come to threaten the rule of law in South Africa. Might a rise in juridification (i.e. the proliferation of regulation by and through law and the courts) correlate with, or ultimately contribute to, a decline in legality? (See John Gardner ‘The Twilight of Legality’ Irvine Lecture at Cornell, 2015)
A turn to the courts is understandable where systems of political accountability prove inadequate. And it is perhaps uncontroversial to suggest that South African instruments of political accountability have struggled to hold President Jacob Zuma and his government to adequate account. Notwithstanding some modest losses in the 2016 municipal elections, the ANC government secured 54% of the overall vote to bolster its 62% majority in the 2014 general election. Zuma has survived several motions of no confidence in Parliament and in his own party. This is despite 783 criminal charges of fraud and corruption laid against him in 2007, the prosecution of which remains mired in pre-trial litigation. The specialised crime investigative unit responsible has since been disbanded by national legislation, while there has been a revolving door at the office of the National Director of Public Prosecutions, who is appointed by the President. The Public Protector (a watchdog established by chapter 9 of the Constitution) has found that Zuma benefitted unduly from public expenditure of about R246m on his private home (Public Protector, Secure in Comfort Report No 2013/14), and has attempted to direct the President to establish a commission of inquiry headed by a judge solely selected by the Chief Justice to investigate preliminary findings that Zuma allowed business associates and his son to play a role in the process of cabinet appointments (Public Protector, A State of Capture Report No 6 of 2016/17). South Africa, it seems, well illustrates the difficulties of dominant political parties in nascent democracies (see e.g. Samuel Issacharoff ‘The Democratic Risk to Democratic Transitions’ Constitutional Court Review (vol 5) 1).
In this politically challenging atmosphere, the courts have taken bold steps to attempt to hold the President, Executive, and Parliament legally accountable. For instance, the CC has held in Economic Freedom Fighters v Speaker of the National Assembly  ZACC 11 that Public Protector remedies ‘bind’ unless quashed by a court and that Zuma violated the Constitution and his oath of office in relation to the public expenditure on his home. It has twice struck down aspects of the replacement specialised crime investigation unit on the ground of inadequate independence from the Executive (see also Glenister President  ZACC 6). More importantly for present purposes, the courts have also repeatedly relied on the constitutional principle of legality and rationality which, to recall, applies to all state power. The CC has said in Kaunda v President  ZACC 5 at paragraph 244 that ‘all exercise of public power is to some extent justiciable under our Constitution’. Accordingly, opposition political parties, public interest organisations, and individuals – often frustrated by a shortfall of political accountability – have repeatedly challenged a growing range of public decisions as irrational in the courts. On this basis, judges have quashed – to take only a few examples – Zuma’s decision to appoint a national director of public prosecutions (Democratic Alliance v President  ZACC 24), an Executive decision to leave the International Criminal Court (Democratic Alliance v Minister of International Relations and Cooperation  ZAGPPHC 53), prosecutorial decisions to drop criminal charges against Zuma (Democratic Alliance v Acting National Director of Public Prosecutions  ZAGPPHC 255) and an alleged ally (National Director of Public Prosecutions v Freedom Under Law  ZASCA 58) (the latter judgment overturning a High Court order that the prosecution must proceed), as well as a Judicial Service Commission decision not to recommend candidates to fill judicial vacancies in circumstances where the Commission failed to provide reasons for its refusal (Judicial Service Commission v Cape Bar Council  ZASCA 115). Most recently, the High Court in Pretoria ordered the President to provide reasons for dismissing the erstwhile Minister of Finance (Democratic Alliance v President  ZAGPPHC 148), which dismissal swiftly led to rating agency downgrades of South Africa’s sovereign debt to junk status.
Commonwealth systems of public law typically retain certain no-go areas, notwithstanding the growth of judicial review since the 1970s, such as the power to wage war, to make treaties, to conduct foreign relations, to determine economic and taxation policies, to appoint Cabinet ministers, and so forth (See e.g. Council of Civil Service Unions v Minister for the Civil Service  AC 374). In South Africa, by contrast, it appears that the considerations underlying the concept of justiciability (democratic and institutional competence; polycentricity; expertise; etc) are to be taken into account in determining whether a reviewable irregularity is present and, if so, what remedy to grant. The inevitable result is that the South African courts will continue to be faced with highly politicised review applications at the heart of Executive power.
Courts engaging in review of this sort in a context of weak political accountability confront a dilemma. On one hand, it is tempting to stand up for the rule of law in the face of fears of creeping corruption and political malaise. On the other, the attempt may be self-defeating in the long run. Quite apart from the high degree of discretion judges would inevitably have to wield, excessive juridification may lead to political attacks on the courts’ integrity, politicisation of judicial appointments, official disobedience, or even constitutional amendment cutting back judicial power (witness, for example, the experience of the Hungarian Constitutional Court).
A related question is whether, and if so how, the courts could help to strengthen (or at least avoid harming) political as opposed to legal systems of accountability. In young democracies in particular, there is a need to build a new political culture and, once it gains a foothold, to protect it. As Mahomed J observed in 1995 in S v Makwanyane  ZACC 3 at paragraph 261, “In some countries, the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different.” In other words, some constitutions (or systems of public law more generally) may be understood as supporting (and as partly constituted by) a relatively stable set of shared political assumptions and practices, whereas others might aim to facilitate the formation of new practices. While it is understandable to turn to judicial review to bolster weaknesses in an emerging democratic order, excessive reliance on judicial review might impede the maturing of that very order.
For all these reasons, Kate O’Regan’s warning in her 2011 Helen Suzman Lecture that South African courts must take care to avoid a ‘jurisprudence of exasperation’ in the field of constitutional and administrative law is more pressing than ever.
Alistair Price is an Associate Professor of Law at the University of Cape Town. His research interests include constitutional and administrative law, the law of obligations, and comparative law.