ARTICLES

A few reflections on the role of courts, government, the legal profession, universities, the media and civil society in a constitutional democracy

Johann van der Westhuizen

Judge of the Constitutional Court of South Africa; Board member, Centre for Human Rights and Extraordinary Professor, Faculty of Law, University of Pretoria, South Africa

SUMMARY

This contribution is a reworked version of a lecture presented at the Faculty of Law, University of Pretoria, commemorating the University's centenary celebrations. Contrasting the pre- and post-constitutional legal landscapes, Justice Van der Westhuizen emphasises that political meddling in judicial affairs, previously left in a legal void, is now very clearly circumscribed by the constitutionally-entrenched principles of separation of powers and independence of the judiciary. Justice Van der Westhuizen proceeds to analyse aspects of the relationship between the courts, on the one hand, and the govenment, the legal profession, universities, the media and civil society, on the other hand. The relationship between courts and the government is fraught with tension, but so far the executive has readily complied with almost all court decisions, and the court has steered a cautious course when it comes to interference in the legislature. The importance of the legal profession, both inside and outside courtrooms, is underlined, and the crucial role of universities in fostering free speech is emphasised in the contribution. Turning to the media, Justice Van der Westhuizen acknowledges the importance of an informed public, and responsible reporting. He takes the media to task for some irresponsible and factually incorrect reporting. In conclusion, the author emphasises the important role of civil society and of continuous debate, analysis and criticism in the attainment of 'our constitutional project'.

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* BA, LLB, LLD (Pretoria); vanderwesthuizen@concourt.org.za. This is a reworked version of a lecture presented as part of the Prestige Lecture Series of the Faculty of law, University of Pretoria, on 17 September 2008.
1 AS Mathews & B van Niekerk 'Eulogising the Attorney-General: A qualified dissent' (1972) 89 South African Law journal 292.         [ Links ] See also J Dugard 'Prosecuting a minister for contempt of court' (1972) 89 South African Law journal 364.         [ Links ] Ellison Kahn writes movingly of Van Niekerk's life in his 1981 tribute 'In memoriam: Barend van Niekerk' (1981) 98 South African Law journal 402.
2 The background and relevant portions of the address are reproduced in the judgment in that case, reported as S v Van Niekerk 1972 3 SA 711 (A). Also see J Dugard 'Judges, academics and unjust laws: The Van Niekerk contempt case' (1972) 89 South African Law Journal 271.         [ Links ]
3 See eg J Dugard 'Judicial process, positivism and civil liberty' (1971) 88 South African Law journal 181;         [ Links ] C Forsythe 'Recent cases: Recent judicial attitudes to free speech' (1977) 94 South African Law journal 19;         [ Links ] R Wacks 'Judge and injustice' (1984) 101 (1984) 226;         [ Links ] J Dugard 'Should judges resign? A reply to Professor Wacks' (1984) 101 South African Law journal 286;         [ Links ] J Wacks 'Judging judges: A brief rejoinder to Professor Dugard' (1984) 101 South African Law journal 295;         [ Links ] H Corder judges at work (1984);         [ Links ] A van Blerk 'The irony of labels' (1982) 99 South African Law journal 365.         [ Links ]
4 Sec 7(1). Also see the Preamble.
5 See secs 7(1), 36(1) & 39(1).
6 Secs 39(1)(a) & (2).
7 Secs 26, 27 & 29.
8 See secs 9, 10, 11, 12, 16 & 19.
9 Sec 24.
10 Secs 43,44,104 & 156.
11 Secs 83 & 85.
12 Sec 125. As to local government, see sec 151(2).
13 'Comments made at the Gordon Institute for Business Science Forum on the independence of the judiciary' 20 August 2008.
14 See KE Klare 'Legal culture and transformative constitutionalism' (1998) 14 South African journal on Human Rights 146 and a recent paper by S Liebenberg on 'The future of "transformative constitutionalism" in South Africa'.         [ Links ] As to the ongoing debate on the Constitution and decisions of the Constitutional Court, see eg I Currie 'Judicious avoidance' (1999) 15 South African journal on Human Rights 138;         [ Links ] S Wool-man 'The amazing, vanishing bill of rights' (2008) South African journal on Human Rights 762.         [ Links ] Also see W Waluchow 'Constitutions as living trees: An idiot defends' (2005) XVIII Canadian journal of Law and jurisprudence 207.         [ Links ] I was also privileged to be able to look at the following soon to be published highly instructive pieces: F Michaelman 'On the uses of interpretive "charity"' (a response to Woolman); T Roux 'Principle and pragmatism on the Constitution of South Africa';         [ Links ] T Roux 'Transformative constitutionalism and the best interpretation of the South African Constitution: Distinction without a difference?' (to be published).
15 See CR Sunstein Designing democracy: What constitutions do (2002), eg 50 68 224 261.         [ Links ]
16 Sec 167.
17 Sec 167(3).
18 Sec 165(2).
19 Sec 165(5).
20 Sec 165(2).
21 See the oath or solemn affirmation of judicial officers in Item 6 of Schedule 2 of the Constitution.
22 Sec 181.
23 Secs 179(4) & (6).
24 De Lange NO v Smuts & Others 1998 3 SA 785 (CC); 1998 7 BCLR 779 (CC) para 70; Van Rooyen & Others v S & Others (General Council of the Bar of South African Intervening) 2002 5 SA 246 (CC); 2002 8 BCLR 810 (CC) para 19, citing The Queen in Right of Canada v Beauregard (1986) 30 DLR (4th) 481 (sCC) 491.
25 On the meanings of legitimacy, and the legitimacy of the Constitutional Court, see eg RH Fallon 'Legitimacy and the Constitution' (2005) 118 Harvard Law Review 1787;         [ Links ] JL Gibson 'The evolving legitimacy of the South African Constitutional Court' in F du Bois & A du Bois-Pedain (eds) Justice and reconciliation in post-apartheid South Africa (2008) 229.         [ Links ]
26 See eg some of the sources referred to in n 14 above.
27 Eg S v Dodo 2001 3 SA 382 (CC) para 7; Doctors for Life International v Speaker of the National Assembly & Others 2006 6 SA 416 (CC) paras 36 & 244.
28 H Arendt The human condition (1958);         [ Links ] H Arendt The origins of totalitarianism (1966).         [ Links ]
29 See J Barnard 'Totalitarianism, (same-sex) marriage and democratic politics in post-apartheid South Africa' (2007) 23 South African Journal on Human Rights 500 on Constitutional Court decisions to this effect.         [ Links ]
30 See eg the judgment of Skweiyia J in Merafong Demarcation Forum & Others v President of the Republic of South Africa & Others 2008 5 SA 171 (CC) para 306.
31 S v Jaipal 2005 4 SA 581 (CC) paras 54-57.
32 Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC); Minister of Health v Treatment Action Campaign (2) 2002 5 SA 721 (CC).
33 August & Another v Electoral Commission & Others 1999 3 SA 1 (CC) paras 3-5 22-23. In August, the court held that if the government wished to take away the right of prisoners to vote, it had to do so explicitly in a law of general application because of the importance of the right. This was followed six years later by another ruling that the state had not properly justified the breadth of the law it had then passed. See Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) & Others 2005 3 SA 280 (CC) paras 66-67.
34 President of the Republic of South Africa & Another v Modderklip Boerdery (Pty) Ltd (Agri SA & Others, Amicus Curiae) 2005 5 SA 3 (CC) paras 42-43.
35 Doctors for Life International (n 27 above); Matatiele Municipality & Others v President of the Republic of South Africa & Others (2) 2007 6 SA 477 (CC); Merafong Demarcation Forum & Others v President of the Republic of South Africa & Others [2008] ZACC 10, as yet unreported judgment handed down 13 June 2008.
36 See 'More damage control after Manto says "No"' Independent on Saturday 25 March 2002 and Ministry of Health Press Release dated 27 March 2002 http://www.doh.gov.za/docs/pr-f.html (accessed 4 September 2008).         [ Links ] Compliance with the order followed, with some enforcement efforts by the Treatment Action Campaign, including the launch of contempt of court proceedings in respect of the roll-out in Mpumalanga See Treatment Action Campaign v MEC for Health, Mpumalanga unreported Case 35272/02 and M Heywood 'Preventing mother-to-child HIV transmission in South Africa: Background, strategies and outcomes of the Treatment Action Campaign case against the Minister of Health' (2003) 19 South African Journal on Human Rights 278.         [ Links ]
37 See Permanent Secretary, Department of Welfare, Eastern Cape & Another v Ngxuza & Others 2001 4 SA 1184 (SCA) para 15; Jayiya v Member of the Executive Council for Welfare, Eastern Cape & Another 2004 2 SA 611 (SCA) paras 2 17-18 and Njongi v Member of the Executive Council, Department of Welfare, Eastern Cape 2008 4 SA 237 (CC) paras 16-22; and the High Court cases considered in those judgments.
38 Dingaan Hendrik Nyathi v Member of the Executive Council for the Department of Health, Gauteng & Others [2008] ZACC 8, as yet unreported judgment handed down 2 June 2008.
39 Nyathi (n 38 above) paras 64-78 (see also para 129 of the judgment of Nkabinde J, dissenting in part); South African Liquor Traders Association & Others v Chairperson, Gauteng Liquor Board & Others 2006 8 BCLR 901 (CC) paras 50-54.
40 Controversial planned constitutional amendments were withdrawn from parliament before the second reading in 2006. See C Albertyn 'Judicial independence and Constitution Fourteenth Amendment Bill' (2006) 22 South African Journal on Human Rights 126.         [ Links ]
41 My colleague, Judge Kate O'Regan, recently presented an excellent keynote address at the launch of the Routlege-Modise Law School in Johannesburg on 'Lawyering in our new constitutional order', on 10 September 2008, with which I not only concur, but which I recommend for reading.
42 Shortly after presenting this paper, I was fortunate to have sight of the inaugural lecture by Prof Drucilla Cornell on 'uBuntu, pluralism and the responsibility of legal academics to the new South Africa', recently delivered at the University of Cape Town, which contains valuable insights.
43 Sec 16.
44 Also see the unpublished lecture on 'Transformative constitutionalism: Its implication for the law of contract' by Deputy Chief Justice Moseneke, delivered at the University of Stellenbosch on 22 October 2008.
45 Masiya v Director of Public Prosecutions, Pretoria & Another (Centre for Applied Legal Studies & Another, Amici Curiae) 2007 5 SA 30 (CC); 2007 8 BCLR 827 (CC). It was in fact decided years earlier in National Coalition for Gay and Lesbian Equality & Another v Minister of Justice & Others 1999 1 SA 6 (CC); 1998 12 BCLR 1517 (CC) that the common law offence of sodomy was unconstitutional.
46 n 30 above.
47 See T Madlingozi 'Post-apartheid social movements and the quest for the elusive "new" South Africa' (2007) 34 Journal of Law and Society 77.         [ Links ]