A Delicate Balance THE PLACE OF THE JUDICIARY IN A CONSTITUTIONAL DEMOCRACY A Delicate Balance THE PLACE OF THE JUDICIARY IN A CONSTITUTIONAL DEMOCRACY PROCEEDINGS OF A SYMPOSIUM TO MARK THE RETIREMENT OF ARTHUR CHASKALSON Former Chief Justice of the Republic of South Africa Presented by SCHOOL OF LAW, UNIVERSITY OF THE WITWATERSRAND and THE SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS Edited by JONATHAN KLAAREN BA (Harvard), MA (Cape Town), JD (Columbia), LL B (Witwatersrand), Ph D (Yale) Professor of Law, Director of the Mandela Institute, University of the Witwatersrand 2006 Published in association with The School of Law, University of the Witwatersrand First published 2006 by Siber Ink CC PO Box 30702 Tokai 7966 Cape Town SOUTH AFRICA www.siberink.co.za ISBN 1-920025-12-X This book is copyright under the Berne Convention. In terms of the Copyright Act 98 of 1978 no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechan- ical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the Publisher. Cover: James Berrangé Set by GJ du Toit Fine Typography Printed and bound by Creda Communications (Pty) Ltd, Cape Town Preface In May 2005, Arthur Chaskalson retired from the Constitutional Court bench. An eminent human rights lawyer during the apartheid era, he was appointed the first President of South Africa’s Constitutional Court in 1994. He became Chief Justice in 2001, following constitutional amendments that combined the offices of President of the Constitutional Court and the head of the South African judiciary. In his farewell speech delivered at the Constitutional Court on 2 June 2005, Chaskalson reflected on his first days in office in 1994. The newly estab- lished Constitutional Court had, he recalled, ‘no judges, no jurisprudence, no building, and no traditions. It existed only on paper’. The paper was the interim Constitution, which recognized a principle that, in the context of South African constitutional and political history, was nothing short of revolutionary. It was the principle of constitutional supremacy. In the post-apartheid democracy, state power would be delineated and limited by a supreme constitution and these limitations would be enforced by the judiciary. The interim Constitution gave unprecedented powers to and put unprecedented faith in the South African courts in general and the Constitutional Court in particular. There is no doubt that this bold experiment with judicial review was a success. The 1996 (‘Final’) Constitution affirmed the importance of judicial review in the legal and political system. The Constitution ensured permanent acceptance of judicial review, and put the Constitutional Court firmly at the apex of the judicial system. It requires all courts actively to transform the legal system to ensure the achievement of the Constitution’s goals. Justice Chaskalson’s judicial career traverses a decade in which a new court had to find a place for itself in a legal system that, for most of the century, had been premised on Parliamentary supremacy. It had to oversee a project of trans- formation of a political system that had been premised on the use of state power to uphold minority rule and on the systematic denial of human rights. Under the 1996 Constitution it was required to take an active role in the development of a legal system that could achieve the Constitution’s transformative goals. It had, above all, to find an accommodation for itself and for the unfamiliar instrument of constitutional review in the new political order, a place that was neither too much in the way of the democratic branches, nor too easily over- looked and ignored. v PREFACE Chaskalson adverted to these challenges in his farewell speech. ‘There is’, he said, ‘a delicate balance between the judiciary and the other branches of government’. Maintaining the balance, he continued, ‘requires the three arms of government to pay attention to the inter-relationship between them man- dated by the Constitution, and to the deference that each owes to the other. How this is done is of particular importance to the standing of the courts, their efficacy, and the respect that their judgments command. It is crucial to constitutionalism.’ Justice Chaskalson’s retirement presented an appropriate occasion to reflect on the theme of the ‘delicate balance’ between the judiciary and the other branches of the state in a constitutional democracy. How has this balance been struck by the South African Constitutional Court? Since all courts with consti- tutional review powers must confront this problem, do different jurisdictions have any instruction for each other? Is the balance that a court strikes entirely situation-specific and of local interest only, or are there wider lessons to be learned from it? To answer these questions the symposium addressed the fol- lowing topics: the separation of powers, the standard of judicial review, rem- edying breaches of the Constitution and judicial review in a time of terrorism. The symposium was made possible by funding from the EU Conference, Workshop and Cultural Initiative Fund (CWCI), the South African Journal on Human Rights (SAJHR) and the Wits Law School Endowment Appeal (WLSEA). May 2006 vi Acknowledgments This publication was made possible through the funding received from the EU Conference, Workshop and Cultural Initiative Fund (CWCI). A number of individuals worked extremely hard on making the sympo- sium a success. They are Prof Cathi Albertyn, Director of the Centre for Applied Legal Studies, Prof Iain Currie, School of Law, University of the Witwatersrand, Ms Asma Ooni, School of Law, University of the Witwatersrand, Mrs Moshina Cassim, School of Law, University of the Witwatersrand and Ms Heather Thuynsma, Thuynsma Consulting. Prof Jonathan Klaaren worked on the compiling and editing of the sympo- sium proceedings. The symposium was coordinated by Prof Glenda Fick, Head of the School of Law, University of the Witwatersrand. vii viii Contents Preface. v Acknowledgments. vii 1. General Remarks . 1 GEORGE BIZOS 2. Opening Remarks on the Conference Theme. 8 L W H ACKERMANN 3. Opening Remarks. .13 LODEWIJK BRIËT 4. The Separation of Powers — A Comparative View. 16 MARGARET H MARSHALL 5. The Separation of Powers. .27 PIUS N LANGA 6. Judicial Review in a Time of Terrorism — Business As Usual. 35 MICHAEL KIRBY 7. Standards of Review of Administrative Action — Review for Reasonableness. .61 CORA HOExtER 8. Reviewing ‘Executive Action’. 73 HUGH CORDER 9. Five Models of Intensity of Review. .79 JONATHAN KLAAREN 10. Remedying Breaches of the Constitution. 83 GEOFF BUDLENDER 11. Closing Remarks. 98 JODY KOLLAPEN Appendix: Programme for the Symposium . .101 ix CHAPTER 1 General Remarks A D V G EORGE BIZOS SC Thank you. Mr Ambassador, Chief Justices, and Arthur. You don’t know how moved I am by the steps taken by the organizers for me to speak on Arthur’s retirement. He spoke at my birthday party when I turned 75 and he praised me for my good memory. He added, on a very serious note befitting a Chief Justice, that I even remember things that never happened! He could say that about me because he is such a good friend and has been for a long time. It came out during the amnesty process that my office was being bugged by the security police, particularly during the Agget inquest (a doctor who had died in detention). They were actually rehearsing what cross examina- tion the witness would be put under by me in order to improve their prospects of success and being believed. From our side, there was a lot of protest at this tremendous lack of respect of professional privilege. We asked: ‘What was going on?’ And Arthur’s response was: ‘Don’t worry George never keeps to the text! So it wasn’t to their advantage because what they heard going on in his office would not come out the same in court.’ I am not going to speak about former Chief Justice Chaskalson as a judge. His colleagues will judge him. History will judge him. And more particularly, you academics will no doubt do your bit in discussing his judgments. I am going to speak about the friend that I know. I was under attack as a member of the Student’s Representative Council because of my radical views in relation to the treatment of black students at the University of the Witwatersrand. And there was a meeting and there was discussion as to how black students were being treated and the debate was going on about the University’s policy of academic integration and sporting and social — not segregation because that was a harsh word — but separation. And so the debate was going on and I won’t tell you too much about it but there was a motion of no confidence in me and my doings because I was a law student elected by arts students and what was I doing on the SRC. The Dean called me to tell me a thing or two about the brotherhood of the law and that my behaviour was unacceptable. I was going to vote against the grant of R100 for the Law Dinner 1 BIZOS But during this debate, here was one of the first-year law students (I was already in the intermediate year) who stood up and just said: ‘Mr Chairman, we all [not ‘you all’, ‘we’ — he put himself in this as well] are asking the wrong question. Surely the question is not what the University policy is, what it has been, and what it ought to be. The question is actually a simple one. Let us just ask what is right and what is wrong.’ And throughout our years of friendship this has been the one question that Arthur Chaskalson always asked.