.Image: OUTA

This article was first published in the Daily Maverick on 3 July 2023

The above question is one that certainly invites us to examine the delicate balance between the three branches of the government’s power: The legislature (Parliament), the executive (President, Deputy President and ministers) and the judiciary (courts).To embrace democratic principles, society needs to be sure there is a separation of powers between the three arms of government, such that no single branch holds excessive authority over the other. The ultimate intention of their respective roles is to ensure accountability by those elected and employed to deliver services and protect the rights of citizens. 

When service delivery or human rights fail because of the executive arm’s overreach, lack of performance or misconduct, we expect the legislature to be alert and alive to its role of holding the executive to account. However, when the legislature fails to perform its oversight function, this is when the courts are called on by civil society to protect it from the abuse of power, mismanagement or corrupt use of the state’s resources.

Concern at the extent of the judiciary’s involvement in meting out judgments to correct the government’s conduct generally emanates from those within the executive who are often repeatedly castigated by the courts for their errant ways and abuse of power.

The real question is, “Why is the executive arm of the government at the receiving end of so many legal challenges?” And let me add to that, “The vast majority of which they fail to defend or win.”

Orders to uphold the Constitution

When taking a closer look at the many judgments against the executive and at times the legislature, the judiciary’s orders are clearly not a display of trying to govern. They are merely orders that send the authorities back to apply and uphold the Constitution, or the laws and regulations that apply to the situation being contested.

It’s important to note that it’s not the courts which observe the mismanagement by the executive and decide to raise these claims or to seek corrective action against them. It’s the people who present their cases and task the prosecutors to open charges against those in the government who are found wanting.

A few examples of how the public has sought the courts’ protection from lack of service delivery and abuse of power by the authorities are:

• The Treatment Action Campaign’s (TAC) landmark case in 2002, which forced the minister of health to implement a comprehensive programme to provide medication to prevent mother-to-child transmission of HIV and antiretroviral treatment to people with HIV-Aids. Imagine how many more people would have died, had civil society not compelled the executive to act in the best interests of human rights in this matter.

• In 2012, the NGO SECTION27 had to get a court order to force the government to deliver textbooks to schools in Limpopo, to ensure the constitutional rights of learners in that province were not being infringed by the government’s poor service delivery.

• In 2017, two NGOs (SAFCEI and Earthlife Africa) asked a court to compel the executive to apply due processes, engage in meaningful public consultation and follow the country’s formal integrated energy plan, when attempting to force a R1-trillion Russian nuclear energy scheme on the nation, which could ill-afford this irrational scheme.

• In the matter of the decades long overdue electoral reform — because of its unconstitutionality to cater for independent candidates in the national elections — an NGO (the New Nation Movement) asked a court to compel Parliament to get on with compiling the necessary amendments to the Electoral Act.

In all of these cases, the courts did not pass judgment in an attempt to influence or try to govern. In the nuclear energy scheme judgment, for instance, the court didn’t say the executive could not introduce nuclear energy, or that renewable energy sources should be pursued instead. It merely sent the executive back to the drawing board to apply the rules and follow the due process of meaningful public consultation, and work within the boundaries required of it.

Many court challenges against the executive at all levels of government — be it national, provincial or municipal — pertain to the Public Access to Information Act, whereby civil society is sent from pillar to post in its quest for transparency of information that has no right to be kept secret from the public.

While there are some who feel that judicial powers have expanded beyond their intended boundaries, civil activists will contend this is not the case and that the courts are merely succeeding in their quest to rectify injustices and overcome social and economic disparities caused by the executive and the lack of action by the legislature to address its conduct.

Checks and balances

Of course, there are times when the judges get it wrong and occasionally they overreach in their decisions. Fortunately, there are appeals processes and other checks and balances to iron out such errors and invariably the right decisions are arrived at in the end.

We need to be reminded that while our democracy relies on a robust interplay between the powers of the executive, legislative and judicial branches, respect for each arm’s role is imperative to ensure a healthy democracy that promotes the wellbeing of all citizens.

The current power play between the judiciary and the legislature is a growing concern, but not unexpected, given the lack of meaningful electoral reform, to ensure the legislature does not act at the whim of its political masters.

It is the general view of civil society that the judiciary’s many significant judgments against the executive and at times the legislature have succeeded in defending the people’s rights. This, in turn, is a reflection of the failure of the executive to serve the best interests of the people and the nation, and is not one of the courts usurping their powers.

It is a travesty that society in South Africa is far too often left with no option but to turn to the courts for protection from the abuse of power by people in authority. What makes this sorry state of affairs even worse is that it is the poor, who cannot afford to litigate, who bear the brunt and suffer the most when service delivery and protection of rights are usurped by those who abuse their positions of power within the government.