Is Professor Balthazar a closet admirer of parliamentary sovereignty?

by | Jan 19, 2021 | Covid-19, General | 0 comments

Opinionista • Paul Hoffman • 14 January 2021

The track record of lawfare in SA is long and not inglorious. The NGOs and individuals who have the courage to take up the cudgels of lawfare deserve support and encouragement, not criticism that ignores the tenets and fundamental thrust of the Constitution.

Daily Maverick’s regular columnist on matters legal, known only by his or her nom de plume “Professor Balthazar”, has strayed from the paths of constitutionalism in a column, published on 14 January, to which this response is akin to a trout rising to a well-cast fly on a tranquil pond.

Here is the problem with the anti-lawfare attitude of the learned professor: when SA turned its back on the parliamentary sovereignty of the apartheid era and replaced its more odious features with a supreme Constitution which itself regards the rule of law as supreme, a fundamental change in the system of governance in SA was made (judging by the portrait of an ageing Einstein lookalike that Balthazar uses, it is safe to assume that these changes occurred long after the professor left law school.)

Hankering after the supremacy of Parliament – implicit in the criticism of those who wage “lawfare” – amounts to an attempt to turn back the clock in a totally counterproductive way.

The Constitution says in terms of its section 2 that “law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”.

Lawfare sometimes has to be resorted to in order to secure the necessary declaration of invalidity.

Under section 7(2) of the Bill of Rights, the state is obliged to “respect, protect, promote and fulfil the rights in the Bill of Rights”. One of those rights is the right to access to healthcare services, which the state must “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of…”

It is plain that many of the measures taken (or neglected) in the state’s response to the pandemic are not reasonable and do not respect or promote the rights guaranteed to all in the Bill of Rights.

Here is a real lulu of an example: under the latest iteration of the lockdown, beaches come under fire from those preoccupied with controlling the right to freedom of movement in ways that are unnecessary and unreasonable. The new regime introduces a new definition for “beach” to give context as to where South Africans are and are not allowed to gather or walk.

In this case, “beach” means the sandy, pebbly or rocky shore between the high-water mark and low-water mark adjacent to:

  • The sea;
  • An estuary mouth extending 1,000m inland from the mouth; and
  • Within 100m of the high-water mark, excluding private property, including the sea and estuary themselves adjacent to the beach.

The well-used Sea Point promenade, the suburban railway line between Muizenberg and Simon’s Town and much of the main road connecting these two suburbs are within 100m of the high-water mark.

Fortunately, for reasons unconnected with the pandemic, the trains only go as far as Fish Hoek these days, even though Prasa has left the red light at the south end of Glencairn station burning permanently.

For the rest, be warned that you run the risk of prosecution, just like those naughty surfers who supposedly expose themselves to Covid-19 when they brave wind and saltwater to indulge their addiction to catching big waves.

No wonder Bheki Cele is able to boast 7,000 arrests for the brand new criminal offence of not wearing masks. It’s like shooting fish in a bucket.

It was Parliament that passed the Disaster Management Act with floods, fires and droughts in mind. The abuse of the powers given to the executive in that act, which does not contemplate pandemics in any way, shape or form, is possible because the act arguably allows it.

Anyone who feels the conduct of the state’s response to the pandemic is inconsistent with the Constitution, is, on the argument put forward by Balthazar, obliged to wait for the next general election rather than turning to the courts for more immediate assistance.

By bringing independent and impartial judicial minds to bear on the impugned conduct or laws, the judiciary serves its basic function of applying the law and the Constitution without fear, favour or prejudice, exactly as contemplated by section 165(2) of the Constitution.

Professor Balthazar would prefer that public interest litigants shelve their lawfare and that courts be spared the task of holding the policies, laws, regulations and conduct of the state to the standards of the Constitution.

While it is true that the courts do not run the country, the essential compact is that the country be run according to the rules of the Constitution. The sanction for not doing so is the risk of having impugned laws or conduct struck down as invalid at the instance of a lawfarer who launches public interest litigation.

Courts do not generally make policy or pass laws; their function is to hold them up to constitutional scrutiny with a view to deciding, with due deference to the functions of the other branches of government, whether they pass constitutional muster.

This system is preferable by far compared to leaving politicians untrammelled space in which to invent all manner of rules and practices which do not measure up to the standards set in the Constitution.

The notions of openness, accountability and responsiveness ought to inform the way in which SA is governed. This is what section 1(d) of the Constitution requires. The best way to hold the legislature, executive and public administration to these standards of the Constitution is via the use of lawfare.

Elections are too infrequent, the public protector is too unreliable and somewhat restricted by her mandate, and the SA Human Rights Commission is toothless as its remedial recommendations are not binding.

The spectre of lawfare is a great way to get official decision-making on to a constitutionally compliant track. Lawfare is a good barometer of the health of civil society anywhere in the world.

The track record of lawfare in SA is long and not inglorious. The NGOs and individuals who have the courage to take up the cudgels of lawfare deserve support and encouragement, not criticism that ignores the tenets and fundamental thrust of the Constitution.

Without the interventions of the Helen Suzman Foundation, the Independent Police Investigative Directorate ( IPID) would not be independent of Bheki Cele and the requirements for the anti-corruption machinery of state would not be as succinctly and unambiguously spelt out as they have been by the courts.

Freedom under Law has intervened with success as a lawfaring public interest litigant in the long-running saga of Cape Judge President John Hlophe and in the decapitation of the prosecution service by Jacob Zuma.

Corruption Watch has engaged in lawfare to good effect in several matters. Bob Glenister’s pertinacity concerning the disbandment of the Scorpions now has the NEC of the ANC on the same page as the courts as regards the reform of the anti-corruption elements of the criminal justice administration.

Had the Rail Commuters Action Group not indulged in lawfare, the police and rail authorities would still be squabbling about whose responsibility it is to ensure the safety of rail passengers.

Ismail Mukkadam’s lawfare spawned the general class action in SA law – a big win for the little guy, while Terry Crawford-Browne’s disappointment with the outcome of his efforts to ensure accountability for the malfeasance and misfeasance in the arms deals has given rise to the Peace Centre litigating the propriety of the biggest of those deals, the BAE aircraft tender, with a view to creating a precedent applicable to all of the arms deals.

The TAC lawfare on supply of HIV/Aids medication and the efforts of individual gay rights warriors have changed the law for the better.

Despite the requirement that the courts act with deference toward the other branches of government, the state is best held to account through lawfare.

Even unsuccessful lawfare, such as the efforts of Jean Pease and the Progressive Principals’ Association to secure much-needed reform of the basic education system has not been in vain. The state is steadily adopting the changes for which they fought without success.

The government’s response to the pandemic may not be the ideal battleground for lawfare because of the polycentricity of the decision-making involved. The constant chopping and changing of policy also makes the government a difficult target to pin down as each new regulation tweaks its predecessor.

These considerations ought not to dampen the enthusiasm for lawfare that exists in civil society.

The spectre of lawfare is a great way to get official decision-making on to a constitutionally compliant track. Lawfare is a good barometer of the health of civil society anywhere in the world.

All public servants and politicians ought to be aware of the approach required and spelt out in the Rail Commuters’ case by Justice Kate O’Regan, writing for a unanimous court, and endorsed in the second Glenister matter, also in the Constitutional Court:

“What constitutes reasonable measures will depend on the circumstances of each case. Factors that would ordinarily be relevant would include the nature of the duty, the social and economic context in which it arises, the range of factors that are relevant to the performance of the duty, the extent to which the duty is closely related to the core activities of the duty-bearer – the closer they are, the greater the obligation on the duty-bearer, and the extent of any threat to fundamental rights should the duty not be met as well as the intensity of any harm that may result.

“The more grave is the threat to fundamental rights, the greater is the responsibility on the duty-bearer. Thus, an obligation to take measures to discourage pick-pocketing may not be as intense as an obligation to take measures to provide protection against serious threats to life and limb. A final consideration will be the relevant human and financial resource constraints that may hamper the organ of state in meeting its obligation. This last criterion will require careful consideration when raised.

“In particular, an organ of state will not be held to have reasonably performed a duty simply on the basis of a bald assertion of resource constraints. Details of the precise character of the resource constraints, whether human or financial, in the context of the overall resourcing of the organ of state will need to be provided.

“The standard of reasonableness so understood conforms to the constitutional principles of accountability, on the one hand, in that it requires decision-makers to disclose their reasons for their conduct, and the principle of effectiveness on the other, for it does not unduly hamper the decision-maker’s authority to determine what are reasonable and appropriate measures in the overall context of their activities.

“Metrorail and the Commuter Corporation deny that they bear obligations to rail commuters to protect their safety and security. They argue that it is the SAPS who bears such obligations, in terms of Section 205 of the Constitution, and not them. They accordingly clearly misconstrue the nature of the obligations imposed upon them.”

All South Africans are entitled to “reasonable measures”.

When measures taken, whether to counter the pandemic or in general, are not compliant with the standard described by Justice O’Regan, the resort to lawfare is both necessary and desirable. DM

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