The judiciary should be left to do its work

September 18th, 2019

By Kgomotso Ramotsho

Retired Judge Kathy Satchwell was a guest speaker at the annual general meeting of the Gauteng Attorneys Association that was held in Johannesburg on 29 August.

The Gauteng Attorneys Association (GAA) held its annual general meeting on 29 August in Johannesburg. Guest speaker retired Judge, Kathy Satchwell, spoke about separation of powers. Judge Satchwell shared her experience of how she started as an interested but uniformed citizen, when she was a student. She added that she worked as an attorney for some 20 years and a judge for another 20 years and it was during that time that that she learnt about the separation of powers.

Judge Satchwell said as a student she learnt about Professor AV Dicey and the rule of law, constitutionalism and the three arms of government – the legislature, the executive and the judiciary. She added that while she practised law, she began to believe that the judiciary was not independent, it was staffed by Apartheid apologists and apparatchiks who only believed in commercial law. ‘As a judge I saw first-hand a very different idea, a commitment to the Constitution and a firm belief in the independence of the judiciary,’ Judge Satchwell added.

Judge Satchwell said those who are old enough will remember that legal practitioners were taught about the constitution of England, which ‘was really the South African Constitution insofar as it affected the three branches of government.’ Judge Satchwell explained the branches as follows –

  • the legislature (Parliament), which represents the people and makes laws and attends to the needs of the people;
  • the executive (Cabinet), which implements the management of government and carries out the will of the people and keeps an eye on parliament and the law at all times; and
  • the judiciary, which follows statutes and the common law, and keeps a close eye out for principles of natural justice.

Judge Satchwell said: ‘There was an event when some of us here were very young and when others of us were not even born. You will not find much about it in the textbooks from which we were taught law. But it is an important part of our political history.’ Judge Satchwell pointed out that, among other things, the Apartheid regime wanted to remove coloured people from the voters roll. According to Judge Satchwell the courts held that the legislation was passed without regard for the procedures for changing entrenched provisions regarding voting rights in the 1910 Union Constitution. She said that the Strijdom government decided to expand the membership of the Appeal Court to 11 and to pack the court with its appointees so that this court could not find against the government. She added that when coloured litigants went to the appeal court, they found the new and packed court all ready and waiting and the man who had advised the government on its plot, LC Steyn, was appointed Chief Justice.

Judge Satchwell said the judiciary was captured and the independence of the judiciary was publicly and unashamedly over. She pointed out that for the next 40 years the executive branch of government controlled the judiciary. ‘[It] may have looked like separation of powers, but the judiciary was a junior branch of government, which did not have the power to overturn legislation as it was passed by the legislature to entrench Apartheid horrors,’ Judge Satchwell said.

Judge Satchwell said that South Africa (SA) claimed and created a written Constitution with s 41 of the Constitution proclaiming that all spheres of government shall exercise their powers and perform their functions in a manner that does not encroach on the integrity of government in another sphere. She added that s 42 onwards provides for the sphere of the legislature and s 83 that provides for executive authority, while s 165(2) specifically states that ‘[t]he courts are independent and subject only to the Constitution and the law.’

Judge Satchwell said by 1994 and 1996 everybody was happy and triumphant that the judiciary was independent in a functioning democracy. The other branches of government were elected by the people and were of the people and worked for the people. However, Judge Satchwell pointed out that this was not to be, as the ‘legislature turned out to be a damp squib,’ the executive, unchecked by the legislature, went on its own way of the gravy train with members of the executive from the President downwards becoming millionaires without needing their official salaries. ‘Long cavalcades of blue light cars ferried wives and girlfriends to cocktail parties … . Contact and contracts impoverished mining communities, people needing homes in the townships, everyone needing electricity in their business and homes,’ Judge Satchwell added.

Judge Satchwell said that she would suggest that democracy failed in SA, adding that people get to vote and then they are forgotten. South Africans have no representation in Parliament – no one to take up the ‘life and death’ issues and as a result the people take to the street. Judge Satchwell added that the judiciary has not failed the Constitution. She noted that the judiciary has been there whenever it has been approached by citizens, civil society, those in need, those abandoned by their representatives, those who are ignored or abused by the executive. ‘The judiciary, I do believe, has stepped in and honoured its role as a third arm of government,’ Judge Satchwell said.

However, Judge Satchwell, noted that the judiciary and its adherence to the Constitution has meant that judges have been obliged to step in and do the work, which Parliament and the executive were meant to do. ‘Judges have had to take the place of responsive and affective and accountable parliamentarians. Judges have had to step in and do the work, which should have been done by trained and efficient and dedicated civil servants and members of the executive,’ Judge Satchwell added. She pointed out that she did not think this is democracy at work.

Judge Satchwell said that judges are not elected. ‘Judges are not of the people, we are middle class, educated, salaried individuals. Judges are not versed in political programmes or visions. Judges are neither elected nor trained nor entitled to run the country,’ Judge Satchwell added. She pointed out that the courts are mindful of the dangers of interfering in what is not their business. One of the examples she gave was in the case of the Minister of Home Affairs and Another v Fourie and Others; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (3) BCLR 355 (CC), where the majority judgment found that there had been inequity in the manner in which gay persons were treated but said, ‘it would best serve those equality claims by respecting the separation of powers and giving Parliament an opportunity to deal appropriately with the matter.’

Judge Satchwell said in 2006 the Constitutional Court was mindful that the courts should not trespass on the responsibilities of Parliament and the separation of powers was respected, however, she pointed out that within ten years democracy started relying on the courts and not the representatives of the people. She noted some of the cases that the courts had to deal with, such as –

  • Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (Corruption Watch (RF) NPC as amicus curie) 2016 (5) BCLR 618 (CC); and
  • Public Protector v South African Reserve Bank 2019 (9) BCLR 1113 (CC).

Judge Satchwell said it was not healthy for democracy that the courts, for the past few years, had to do the work of Parliament and the executive. She added that it may be feared that the courts are now seen as a favourite shortcut for political parties and civil society to resolve what is often only intense political differences. She said political battles are now fought in the courts and not in Parliament. Judge Satchwell added that she fears now the response of the judiciary in taking an active role in guarding the Constitution when the legislature and the executive have failed to do their jobs.

‘The judiciary is criticised. There is nothing wrong with this. We are all subject to scrutiny. It is why we write judgments so that they can be read and analysed and discussed and debated. Where wrong they are taken on appeal and again and again,’ Judge Satchwell said. Judge Satchwell pointed out that criticism of judgments and rulings is also expected. She said the SA judiciary must be open to scrutiny. ‘We must expect debate and engagement with the law. But judges speak through their judgments. We do not defend ourselves or our work in the public arena,’ Judge Satchwell added.

Judge Satchwell said the democracy needs a judiciary. But the judiciary should have one role only. She added that the legislature and the executive should do its job, and the judiciary should look to facts and dispute and the law and the Constitution and decision. The judiciary should not be the sole bulwark against the loss of democracy.

Vice-President of the Law Society of South Africa (LSSA), Mabaeng Denise Lenyai, spoke about the new structure of the Law Society of South Africa at the Gauteng Attorneys Association annual general meeting in Johannesburg.

The Vice-President of the Law Society of South Africa (LSSA), Mabaeng Denise Lenyai, had an opportunity to speak to the members of the GAA about the new structure of the LSSA. Ms Lenyai explained that since the inception of the Legal Practice Councils (LPC) on 1 November in 2018 the structure and constitution of the LSSA has changed especially with regards to the governing issues where the LSSA tries to be in line with the Legal Practice Act 28 of 2014, to make sure that representation at the government structure of everyone is included.

Ms Lenyai said that the LSSA has changed its face and its mandate. She added that the LSSA is recognised by government, the LPC, and the international world as the association that looks after the interests of legal practitioners. She noted that in the past the four provincial law societies used to look at the regulatory issues, as well as the members interest. She said that currently the LPC is the regulator of legal practitioners and said the LSSA – in its new form – is the association that will look after the interests of legal practitioners in the legal profession, not only with regards to regulatory issues but also with policy regulations and in assisting government in crafting legislation, in addressing international agreements and cross-border agreements.

Ms Lenyai added that the LSSA has been tasked with making sure that legal education in the profession continues. She pointed out that the LSSA has also been asked by the LPC to create a model that will make sure that both attorneys and advocates are trained properly under one roof. ‘It is still a work in progress and the LSSA is sitting at the national level and we [the LSSA] have realised that without the members, which is you who are sitting here, we cannot do anything alone out there,’ Ms Lenyai said.

Ms Lenyai said the LSSA would like to work as one with associations, such as the GAA. In the new constitution of the LSSA it is stated that the LSSA must have a presence in all provinces. ‘If we were to make a meaningful contribution it is better if we are together and we speak as one,’ Ms Lenyai added. She requested that the members of the GAA look at the current constitution of the LSSA and see if they cannot mould their constitution, especially with regards to government issues. Ms Lenyai told legal practitioners that they needed to work together.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.