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Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the Transformation of Society

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Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the Transformation of Society ASSESSMENT OF THE IMPACT OF DECISIONS OF THE CONSTITUTIONAL COURT AND SUPREME COURT OF APPEAL ON THE TRANSFORMATION OF SOCIETY Final Report www.justice.gov.za Find us on A statement by Adv Michael Masutha, Minister of Justice and Correctional Services on the occasion of the release of the Report on the Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the Transformation of Society 3 November 2017 Today we announce the release of the Report on give life to the values of the Constitution. It is the the study of the assessment of the impact of the combination of the laws, policies and jurisprudence decisions of the Constitutional Court and the which underlie our collective commitment to Supreme Court of Appeal on the transformation of creating an egalitarian society in which every person society. Exactly a week ago, on 27 October 2017, we enjoy equal protection and benefit of the law. celebrated the centenary birth of Oliver Reginald It is in this context that Cabinet commissioned Tambo, one of the greatest stalwarts of the liberation a study on the impact of the decisions of the struggle who led the African National Congress Constitutional Court and the Supreme Court of during the dark era of colonialism and apartheid. Appeal on the transformation of society, as part of Like many other martyrs, he did not live to witness the broader discourse on the transformation of the the dawn of democracy. It was through his visionary judicial system and the role of the Judiciary in the leadership and hard work as well as the blood and developmental State. sweat of many of his generation, some of whom paid the ultimate sacrifice that today we are able to The Discussion Document which was published enjoy the fruits of the hard-earned democracy. by Minister Radebe in 2012 gives the reasoning behind the study. The following extract from the The National Development Plan: Vision 2030 which Discussion Document sets out the rationale behind South Africa adopted in 2012, provides a yardstick the assessment succinctly as follows: and a roadmap for the reconstruction of many facets of our ugly past and their replacement with “We seek to engage the services of research new ones based on human rights and fundamental institution(s) to conduct the desired assessment. freedoms. It reflects our concerted effort to The identified institution(s), will be expected to - transform the legal system based on the letter and (a) undertake a comprehensive analysis of the spirit of the Constitution through which all arms of impact of the decisions of the Constitutional the State must work towards the renaissance of the Court, since the inception of the Court, on legal system in its entirety. the transformation of the state and society By way of an analogy, the State machinery resembles and how the socio-economic conditions a three legged pot, the legs being the three equal and lives of people or a category of persons arms of the State. The ingredients of the pot which is or individuals have been or are affected in the form of laws, policies and jurisprudence which by such decisions within the context of a are the produce of the labour of the three arms transformative Constitution; i (b) assess the impact of the decisions of the applied in this study involving several stakeholders Constitutional Court, since the inception of including retired judges of the Constitutional Court the Court, on all branches of the law of the and the Supreme Court of Appeal, State Attorneys, Republic and the extent to which any such legal practitioners and State and Non State entities, branch of the law has or should be reformed litigants and beneficiaries. to give effect to the transformative goals The research team assessed 43 landmark cases by envisaged by the Constitution; both the Constitutional Court and Supreme Court (c) assess the capacity of the Judiciary and of Appeal covering a wide-range of socio-economic that of the courts in building a South rights. African jurisprudence that is in-line with In a nutshell, the report alludes to some of the the Constitution as the supreme law of the seminal court decisions which were handed down Republic; during what may be termed as the golden era (d) assess the capacity of the State in all its of South Africa’s constitutional jurisprudence. spheres to implement measures that seek to Included amongst these are the following: The give effect to the transformative laws of the Government of the Republic of South Africa and Republic and the decisions of the courts.” Others versus Grootboom; The Treatment Action Campaign against The Minister of Health; The Head Although when the idea of the assessment was of Department: Department of Education, Free State conceived, there were concerns raised from certain Province versus Welkom High School and Harmony quarters. I am pleased to confirm that those were High School; and the MEC for Education in Gauteng settled early on to enable this important work to get Province and Others versus Governing Body of the underway. Rivonia Primary School and Others. These are part As it can be deduced from the Report, the of the landmark judgments which have crystalised assessment was not about reviewing the judgments our human rights jurisprudence, particularly with of the courts, but to look at the consequence of the regard to right of access to housing, health care and said judgments on the people and the State. the right of access to education. We are grateful to the Human Sciences Research The Report acknowledges that despite a number Council (HSRC) and the University of Fort Hare (UFH) of landmark judgments confirming the State’s who were the successful bidders for this research. obligation to take reasonable measures to ensure These two reputable institutions established a the progressive realisation of socio-economic rights, formidable team of researchers and the Report the apex courts always adopted a constrained we are publishing today is the end product of the approach when adjudicating on disputes involving extensive research undertaken over a period of socio-economic rights. approximately two years. The report also notes some of the challenges that Different research methodologies, which blended have the potential to hinder the full realisation of both theoretical and empirical research, were the objectives of judgments. In particular: ii a. The challenges regarding the interface and 12 million learners in our public schooling system overlap between the mandates of the three 9, 6 million are in no fee payment schools. In excess spheres of government with regard to socio- of 4 million people have had access to basic housing economic rights. This is due to the interplay since 1994; and 17 million people enjoy support of the national, provincial and local spheres from the State under social assistance programmes. of government which have different and These are but few examples of the important socio- sometimes overlapping competencies in economic measures undertaken by the State to respect of services such as water, electricity, honour its constitutional obligations. land rezoning, mining and mineral licencing etc; As I conclude, let me allude to one of the profound b. The three year Mid-Term Expenditure findings emanating from the Report, being the Framework used by Government which may need for a constitutional dialogue amongst the render it difficult to allocate budget to realise three Branches of State to address issues of how to additional projects which are necessitated improve the socio-economic conditions of all our by court judgments; people. This sentiment was echoed in the historic meeting between the National Executive and the c. The lack of clarity from the judgments as th well as capacity constraints on the part of Judiciary on the 27 of August 2015, which similarly the public service to effectively implement expressed the need for a structured interface court decisions; between the Branches of State to discuss matters, particularly pertaining to transformation. d. The need to strengthen accountability, oversight and monitoring mechanisms across Only limited copies of the Report are available all spheres of Government in order to ensure and the full report can be accessed from the that there is progressive realisation of the Department’s website at the following address: socio-economic rights through programme www.justice.gov.za design as well as effective and expedient implementation of court judgments. I thank you. This resonates with the ANC’s policy on radical economic transformation which it adopted at its 53rd Elective Conference in Mangaung. It is also important to note that the ANC Government has made great strides towards the progressive realisation of socio- economic rights as envisaged in the Bill of Rights. For example 3, 9 million people access antiviral Adv Michael Masutha treatment through the public health system. Out of Minister of Justice and Correctional Services iii Assessment of the Impact of Decisions of the Constitutional Court and Supreme Court of Appeal on the Transformation of Society Final Report (Consitutional Justice Report) Prepared for The Department of Justice and Constitutional Development by the Democracy, Governance and Service Delivery Research Programme of the Human Sciences Research Council in partnership with the Nelson R Mandela School of Law of the University of Fort Hare November 2015 Contents List of Main Contributors to this Report ...................................................................................
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