PRACTICAL APPLICATION OF CONSTITUTIONAL DEMOCRACY

In a constitutional democracy, such as South Africa, the government is deemed to

operate on the basis of the notion of constitutionalism. As De Vos et al state,10
constitutionalism “conveys the idea of a government that is limited by a written
constitution: it describes a society in which elected politicians, judicial officers and
government officials must all act in accordance with the law”.
10 As above, 42.
11 Pound R ‘The Scope and Purpose of Socio-Logical Jurisprudence III’ Harvard Law Review (1912)
25(6) 514.
12 Editorial Staff, ‘ANC Increasingly Resentful of Our Independent Judiciary’ Times Live
(Johannesburg, 24 June 2015) http://www.timeslive.co.za/thetimes/2015/06/24/ANC-increasingly-
resentful-of-our-independent-judiciary.
The life of the law, said Roscoe Pound in 1912, is in its enforcement.11 His thinking was
informed by the fact that law is a social institution, which may be improved by intelligent
human effort in the form of the interpretation and application of legal rules that take into
account the social facts upon which the law is to be applied. What Pound had in mind is
that the law should be interpreted sociologically (that is, as a product of the people). The
South African Constitution is possibly one of the best examples of a Constitution that is
the product of the people: it was adopted after a lengthy process of careful deliberation
and negotiation by representatives of all political parties – initially in the form of the
Convention for a Democratic South Africa (CODESA) and thereafter, the Multi-party
Negotiating Forum. By virtue of section 2, as read with section 172 of the Constitution,
the Constitution is the supreme law of the land and all law and all conduct inconsistent
with it, is invalid. Therefore, it is our wish that as a product of the people, the Constitution
will be an enforceable and binding document that will keep all representatives of the
state, including the President and the government, in check, thus guarding against any
abuse of power. After all, as James Madison, the fourth US President stated: “If angels
were to govern men, neither external nor internal controls on government would be
necessary” (otherwise abbreviated to “men are not angels”). Notwithstanding the explicit
Constitutional directive that obliges the judiciary to declare law or conduct
unconstitutional, a fairly common sentiment issued by the African National Congress
whenever the judiciary decides a matter declaring that the government’s actions are
unconstitutional,12 is along the following lines:
Political disputes resulting from the exercise of powers that have been constitutionally
conferred on the ruling party through a popular vote should not be subverted. Those who
disagree with the ruling party’s politics and who cannot win the popular vote during
elections use other arms of the State to co-govern the country.
This represents the quintessential counter-majoritarian dilemma, which is believed to
indicate that the judiciary’s immense power erodes or undermines democracy. Instead,
however, this issue requires careful and considered thought about the exact meaning of
the counter- 10
majoritarian dilemma, as well as an appreciation of exactly what democracy entails, but
with the proviso that the separation of powers doctrine and democracy may take a
variety of forms.
The landmark case of De Lange v Smuts NO13 reveals that South Africa has a unique,
special and evolving form of the separation of powers doctrine. What the Court held in
the case is:
13 1998 (3) SA 785 (CC).
14 Dyzenhaus D Truth, Reconciliation and the Apartheid Legal Order (1998) 169.
over time our courts will develop a distinctively South African model of separation of
powers, one that fits the particular system of government provided for in the Constitution
and that reflects a delicate balancing, informed both by South Africa’s history and its new
dispensation, between the need, on the one hand, to control government by separating
powers and enforcing checks and balances, and, on the other, to avoid diffusing power
so completely that the government is unable to take timely measure in the public
interest.
You should therefore appreciate that the relationship between a supreme constitution
and the court's testing power is that when a constitution is supreme, all law and all
conduct must comply with it. In the event that the law or conduct does not comply with
the Constitution, the court must declare it invalid. This is stipulated in section 172 of the
Constitution and arises from the fact that we, the people, chose to give our courts this
testing power when our representatives drafted the Interim and Final Constitutions in the
early 1990s. Accordingly, the testing power of the courts reinforces the supremacy of the
Constitution and ensures that it remains supreme and that all laws are compatible with it.
Given South Africa’s history where the judiciary had no right to declare any substantive
aspects of the discriminatory (apartheid) law invalid,14 it was specifically decided to
permit the judiciary to declare law or conduct unconstitutional in order to protect the
integrity of South Africa’s hard-fought Constitutional democracy. A typically South
African interpretation of the separation of powers doctrine is therefore in the process of
being developed, which is one example of how South African law is already decolonised.
What this essentially means is that the Constitution itself does not prescribe a specific,
fixed form of the separation of powers doctrine. Instead, each case must be assessed on
its own merits and guidelines can be developed over time as to the best method of
ensuring that each of the three principal organs of state (legislature, executive, judiciary)
retain their particular areas of power and expertise, but at the same time (as the counter-
majoritarian dilemma has taught us), the judiciary is entitled and empowered to declare
law or conduct invalid if it does not comply with the Constitution.
The technicalities of the counter-majoritarian dilemma are expressed in the following
terms: South Africa uses a closed list proportional representation electoral system. This
system entails that prior to a general election, each political party holds a national
elective conference. During this conference, the members of each political party
nominate a list of candidates, ranking them CSL2601/102/2024
11
in order of preference. These lists are submitted to the Independent Electoral
Commission when the political party registers to take part in the election. The
consequence is that voters vote for a political party and not for individual candidates.
The National Assembly is constituted by members of each of the political parties
according to the proportion (percentage) of votes received. Therefore, the higher up on a
political party’s electoral list a person is ranked, the more likely it is that he or she will be
elected to the National Assembly.15
15 de Vos and Freedman South African Constitutional Law in Context 88.
16 2013 (4) SA 243 (WCC).
At the National Assembly’s first sitting after the election, the National Assembly elects
the President of the Republic of South Africa from amongst its members. The President
then immediately ceases to be a member of the National Assembly and instead
becomes the Head of the Executive branch of government. The President appoints his
Cabinet (the Deputy President and Ministers). The Deputy President and the Ministers
are responsible for the powers and functions of the executive assigned to them by the
President.
Subsequently, national legislation is enacted by the 400 members of the National
Assembly who have all assumed their positions because they are representatives of
political parties and we voted for the particular political party during the election. Thus,
the Parliamentarians represent us and have been mandated by us to pass laws on our
behalf and in our interests. Despite this, if the law that they have passed is challenged
for being unconstitutional, 11 judges (that is the number of judges in the Constitutional
Court, but it may even be as little as a single judge in the High Court) who we have not
elected, but who were appointed to those positions, have the right to declare a law
invalid. Thus, on the face of it, it appears undemocratic but there are a variety of reasons
why it is not undemocratic. A fundamental reason why it is not undemocratic is because
the judiciary knows the limits of its powers: it is acutely aware that it may only go as far
as declaring the law invalid and then refer the law back to Parliament for Parliament to
amend the law. The judiciary does not re-write the law, as this would amount to a
violation of the separation of powers doctrine. Thus, the proper functioning of the
judiciary in relation to the legislature was spelt out in Mazibuko Leader of the Opposition
in the National Assembly v Sisulu MP Speaker of the National Assembly and Others,16
where it was held that:
There is a danger in South Africa of the politicisation of the judiciary, drawing the
judiciary into every political dispute as if there is no other forum to deal with a political
impasse relating to policy or disputes which clearly carry polycentric consequences
beyond the scope of adjudication.
In the context of this dispute, judges cannot be expected to dictate to Parliament when
and how it should arrange its precise order of business matters. The Court also held
that: 12
Courts do not run the country, nor were they intended to govern the country. Courts exist
to police the constitutional boundaries, as I have sketched them. Where the
constitutional boundaries are breached or transgressed, courts have a clear and express
role; and must then act without fear or favour.17
Likewise, when the President, Deputy President and Ministers are implementing the law
in terms of their positions as members of the executive, they must ensure that they
comply with the Constitution and all other law. If (as is revealed in the cases below), the
conduct of the President, Deputy President or Ministers is not in terms of the
Constitution or the law, it is the court’s duty to declare that conduct invalid. However, the
court does not tell the executive how it should act differently, because that decision
remains a decision to be taken by the executive alone.