Below is an extract from Professor Thulisile “Thuli” Madonsela's inaugural lecture as Professor at Stellenbosch University, delivered on 11 November 2019.
Judicial review through a social justice lens
The Constitution declares itself the supreme law of the land, establishing the basis to: “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”. Should this declaration not be the touchstone for courts and all organs of state when making decisions, including judicial review, policy design and law making? Evidence suggests that it is not necessarily so.
This lecture examines patterns in judicial review, focusing on the emergence of rationality as the touchstone for judicial review of the exercise of public power. It questions whether the emergence of rationality as the touchstone for judicial review has not unintentionally undermined jurisprudential congruence with the constitutional vision and values as reflected in the preamble and founding values. It explores the approach in S v Makwanyane as potentially offering a model for constitutional vision and value congruence and, in the process, better alignment with the constitutional vision of creating a democratic society founded on social justice and fundamental human rights.
1. The people versus democracy
When I met Palesa Musa, a black woman in her mid-fifties, she was among women gathered at the former Women’s Jail at Constitution Hill for an intergenerational dialogue on “Women healing the divisions of the past” on 9 August 20172. The event, organised by the Thuma Foundation, Constitution Hill and other partners, brought together five generations of women to discuss growing polarisation and the state of democracy delivery to women. The women deliberated on action women could take to heal the divisions of the past. The concern was that a campaign unleashed by a United Kingdom (UK) company at the instance of the Gupta family, to undermine an investigation I had initiated as Public Protector, was exacerbating racial polarisation.
Musa looked weather-beaten but defiant. Like the other women in the room, she, at some stage, took the floor. She spoke as one of the former inmates of the Women’s Jail. What struck me was Musa’s statement that:
We don’t want democracy. We fought for freedom and, instead, got this thing called democracy. During apartheid, the past laws undermined our ability to live freely and to prosper, while today, poverty achieves exactly the same purpose.
Truth be told, Musa is one of millions – mostly young people and in poor communities – who feel that democracy has failed them in that the constitutional promise of a freed potential and improved quality of life has not materialised for them. A chapter in Rekgotsofetse Chikane’s book screams: “We Were Sold Dreams in 1994, We want a Refund.” Many such left behind or discontented groups and communities are increasingly finding demagogues and related extremism attractive. They are increasingly looking to political entrepreneurs that are offering alternatives to democracy to lift them out of poverty, hunger, unemployment, landlessness and related deprivation.
2. Where are the courts in all of this?
The courts have acquitted themselves admirably as the ultimate guardians of the Constitution. This has particularly been the case when people have used the Constitution as a sword to advance human rights, particularly social and economic rights, such as the right to education, the right to housing, and security of tenure for farm and other tenants, as well as informal settlement dwellers.
But it has been in the area of enforcing integrity in the exercise of state power that courts, particularly the Constitutional Court, have earned their label as the ultimate guardians of the Constitution and democracy. This has been particularly so in high stakes cases involving the president. Among key cases in this regard are those about appointments in the National Prosecuting Authority, and a number arising from my reports as the Public Protector. Through constitutional and administrative review, the courts have expanded the frontiers of freedom and equal enjoyment of human rights for disadvantaged groups in areas such as access to housing, education and tenants’ rights.
Through lawfare in the area of administrative law and the audacious decisions of the courts, particularly under the Promotion of Administrative Justice Act (PAJA), the executive and other persons exercising public power can no longer expect to make decisions without the possibility of incurring accountability. This includes justification, taking responsibility and the possibility of reversal of decisions by courts if they are found wanting.
The question this paper seeks to answer is: Could the courts be doing better with regard to being part of the solution on advancing justice, particularly social justice, through administrative law? It questions whether the emergence of rationality as the touchstone for judicial review has not unintentionally undermined jurisprudential congruence with the constitutional vision and values as reflected in the preamble and founding values. I ultimately explore whether the purposive, contextual and balancing approach adopted by the Constitutional Court in S v Makwanyane and Others9 – and the principle of Ubuntu venerated therein – could provide a model for more constitutionally resonant jurisprudence.