'Lawfare' in South Africa and Its Effects on the Judiciary

African Journal of Legal Studies 10 (2017) 105–126 brill.com/ajls ‘Lawfare’ in South Africa and Its Effects on the Judiciary Hugh Corder Professor of Public Law, University of Cape Town [email protected] Cora Hoexter Professor of Law, University of the Witwatersand, Johannesburg [email protected] Abstract This article identifies three senses of the term ‘lawfare’ in the South African context. In the first and most standard sense of the term, law was abused by the state during the pre-democratic era in order to construct a racist state. In the second sense, litigation was used in the period 1910–1993 as a weapon of the weak by those excluded from the franchise, in order to resist oppression and rule by law. The third sense of lawfare overlaps with the second but is associated with the judicialisation of politics in the era of constitutional democracy. It refers to the use of litigation to resolve contentious political disputes in spite of the existence of many non-curial constitutional safeguards. Using examples, the article shows that lawfare in this third sense was a feature of the presidency of Jacob Zuma and that it was triggered by the rise of nepotism, cor- ruption and state capture well as the abdication of governance responsibilities to the judiciary. It argues that because the courts have been drawn into the public arena and thrust into a relationship of constant tension with the political branches, the judiciary has become the primary casualty of this barrage of lawfare. Keywords lawfare – judiciary – South Africa – strategic litigation – political disputes © koninklijke brill nv, leiden, 2018 | doi:10.1163/17087384-12340017Downloaded from Brill.com09/27/2021 04:56:29PM via free access 106 Corder and Hoexter 1 Introduction1 ‘Lawfare’ has multiple meanings, but in academic discourse it usually denotes the use or abuse of law by the state to achieve strategic political or military ends. Using the term in this sense, John Comaroff characterises lawfare as ‘the effort to conquer and control indigenous peoples by the coercive use of legal means’.2 Unsurprisingly, African countries feature prominently in the literature of lawfare in this first sense.3 South Africa is one of those countries. Martin Chanock’s magisterial study of the making of South Africa’s legal culture dem- onstrates lawfare in action from 1902 to 1936, a period during which essential political and legal narratives were developed for the construction of a racist state.4 The apartheid era that followed (1948–1993) is a more blatant illustra- tion of the use of law, and indeed the entire legal system, to promote white supremacy and suppress other races. However, ‘lawfare’ has also acquired a contrary and nobler meaning: the use of litigation as ‘a weapon of the weak’.5 In this second sense, lawfare is a strat- egy used by the colonised and oppressed precisely in order to resist rule by law. In South Africa there is a long history of the use of litigation for such purposes by non-state actors, and the role of lawfare in the struggle against apartheid is well documented.6 There is a third sense of the term too, at least in South African legal and political discourse, which has grown out of the second meaning and overlaps with it. It has to do with the judicialisation of politics, or the migration of politics to the courts, in postcolonial societies.7 Over the last few years, ‘lawfare’ has 1 This article is based on research supported in part by the National Research Foundation of South Africa (Grants 85861 and 96285). Any opinions, findings, conclusions or recommenda- tions expressed are those of the authors, and the Foundation does not accept any liability in this regard. 2 J L Comaroff, ‘Colonialism, culture and the law: A foreword’ (2001) Law and Social Inquiry 305, 306. 3 See eg M Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge University Press, Cambridge 1985). 4 M Chanock, The Making of South African Legal Culture 1902–1936: Fear, Favour and Prejudice (Cambridge University Press, Cambridge 2001). 5 Comaroff (n 1) 308, and see D Davis and M le Roux Precedent and Possibility: The (Ab)use of Law in South Africa (Juta & Co Ltd, Cape Town 2009) 185. 6 For instance, C J R Dugard, Human Rights and the South African Legal Order (Princeton University Press, Princeton NJ 1978) and R Abel, Politics by other Means: Law in the Struggle against Apartheid, 1980–1994 (Routledge, London 1995). For a more popular account, see Chapters 3, 4 and 5 of Davis and Le Roux (n 4). 7 Descriptions used by J Comaroff & J L Comaroff (eds), Law and Disorder in the Postcolony (University of Chicago Press, Chicago and London 2006) 26. African Journal of Legal StudiesDownloaded from10 (2017) Brill.com09/27/2021 105–126 04:56:29PM via free access ‘Lawfare’ in South Africa and Its Effects on the Judiciary 107 come to describe the use of litigation to resolve contentious political disputes: the phenomenon of asking courts to rule on problems that would tend to be resolved by political means in more mature jurisdictions, or that might not even be regarded as justiciable. In what follows we first consider the South African history of lawfare in the second sense: the use of litigation in the pre-democratic era to fight against rule by law. We then discuss its reappearance in the third sense with refer- ence to a number of recent examples. We explain this barrage of lawfare by pointing to factors that have encouraged it, and we go on to discuss some of its deleterious effects on the judiciary. An obvious danger when politics plays out in the courts is that they may be taken outside their area of constitutional and institutional competence and be drawn into factional politics. But apart from that risk, litigation of this kind inevitably places strain on the relationship between the judiciary and the political branches. It also exposes the judiciary to public criticism, whether justified or not, which ultimately detracts from the legitimacy of the courts. 2 Lawfare in Pre-democratic South Africa In South Africa, administrative-law review has been a prominent method of holding the government to account since the Union of South Africa was formed more than a century ago. In the era of white minority rule that followed, the courts presented the citizen’s only hope, albeit sometimes a feeble one, of having individual rights protected or constitutional obligations upheld. This, in turn, fostered an abiding faith in law and in the power of the courts to achieve at least some measure of justice. 2.1 The Constitutional Background: Lawfare in the First Sense In 1910 four British colonies became provinces of a new Union of South Africa: the Cape, Natal, Transvaal and the Orange Free State. The point of this union was to bring together English- and Afrikaans-speaking white people, recently divided by the Anglo-Boer War of 1899–1902, and to consolidate their political power. Part of the price of this ambitious project was the exclusion of black people from the franchise. So the non-racial (though hardly egalitarian8) Cape was thwarted by the racial prejudice of the other three colonies. However, existing voting rights in the Cape were specifically protected in the Union 8 Women in the Cape colony did not have the vote, and the Union franchise was extended to adult women only in 1930. African Journal of Legal Studies 10 (2017) 105–126Downloaded from Brill.com09/27/2021 04:56:29PM via free access 108 Corder and Hoexter Constitution,9 together with the equality of the two official languages, English and Afrikaans. An entrenching provision prevented the amendment or repeal of these provisions except by a resolution passed by two-thirds of both houses of Parliament in a joint session. Despite these constitutional safeguards, black African male voters were removed from the common voters’ roll in the 1930s,10 and ‘coloured’ (mixed-race) male voters in 1956.11 The latter step was an important one in the implementation of apartheid. This policy of racial segregation and repression was officially espoused by the National Party, essentially the party of white Afrikaners, which had come to power in the general election of 1948. Another significant constitutional achievement for the National Party was the move to republican status, achieved by the adoption of a new Constitution in 196112 and accompanied by South Africa’s ignominious departure from the British Commonwealth. Some twenty years later, in response to widespread pressure for change, a ‘tricameral’ Constitution13 was adopted. This reform was a transparent attempt to co-opt the support of coloured and Indian South Africans, but one that chiefly served to emphasise the continuing exclusion of black South Africans. The tricameral Constitution triggered even fiercer rebellion at home and the tightening of international sanctions on South African trade, finance and sport. All of this materially contributed to the end of formal apartheid and transition to constitutional democracy based on universal franchise. 2.2 The Dual State and the Rise of Lawfare in the Second Sense Union saw the establishment of the Supreme Court of South Africa, consisting of existing colonial courts reorganised into provincial and local divisions with a new court, the Appellate Division, at their apex. However, the courts were fundamentally constrained by the sovereignty of Parliament, which prevented them from reviewing the substance of statutes (although the highest court could, and did, enforce the use of the entrenched procedure). Furthermore, and with some notable exceptions during its history, the Appellate Division for the most part exhibited an attitude of executive-mindedness towards exercises of governmental power.14 9 The South Africa Act 9 of 1909, Edw VII Ch 9, an Act of the British Parliament.

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