A Review of Concourt and SCA Decisions: Undermining or Empowering the Rule of Law?

In this Brief, the review of Constitutional Court and Supreme Court of Appeal decisions will be examined showing some aspects: the government’s views; the reservations to it; latest developments and the possible outcomes.


On 1 March 2012, Justice and Constitutional Development Minister, Jeff Radebe, said “The independence of the judiciary is one of the core values that the African National Congress fought for, and will in no way be affected by a pending judicial review.”

Radebe said his Department's Review of the judiciary and the assessment of the Constitutional Court’s decisions were aimed at strengthening the judiciary so that it could play a more effective role in transforming South Africa. He also released a discussion document on the transformation of the country's judicial system and the role of the judiciary in the developmental state.

Among other things, the document reflects on the role of the judiciary in transforming society, the separation of powers between the three arms of state, steps taken to enhance the judicial system, and the impact of decisions of the Constitutional Court on the reconstruction of South Africa. (1)

The Review initially received much attention but, until recently, appeared to have been relegated to the back burner. It has now clearly taken centre stage on the Department’s agenda.


Legal experts feel that this is not a way to strengthen the judiciary but that judicial independence could instead be threatened by this.  Professor Willem Landman, the CEO of the Ethics Institute in South Africa, said that considering President Jacob Zuma’s bitter interactions with the courts it leads one to question the reasons behind such a review. He characterised the suggested inspection as “inappropriate”. (2)

The review of the judiciary is set amidst allegations that courts are not committing themselves to functioning in a manner that is compliant with “national policies”. The ignorance in understanding the rule of law is exposed when a review is called for without detailing the instances when a judgment has not been compliant with national policies. A reason for this is that the Constitutional Court cannot declare judgement against legally recognized functions of state organs taken in the best interests of the nation. It may only when the state fails to meet its constitutional objectives. This is when the courts are obliged to pronounce and draw the attention of the state organs in realizing their constitutional objectives.  

The government plans to analyse the effects that the Constitutional Court and Supreme Court of Appeal’s decisions have had on influencing the daily lives of average South Africans and also how it affected the socio-economic transformation. It was envisioned that a research institute would be nominated to evaluate the Constitutional Court’s judgments.

Latest Developments

The contract to review the decisions of the Constitutional Court and Supreme Court of Appeal was announced at the end of August 2013 and will come into effect as of September 2013.

The review shall be jointly completed by the Human Sciences Resource Council (HSRC) and the University of Fort Hare’s Law School. (3) The Department of Justice and Constitutional Development made the announcement public by means of a notice on its website.

Some details of the project are as follows:

  • the projected timeframe of the project is 18 months;
  • the terms of reference for the research includes looking at the cost of litigation, the speed of finalisation of cases, the constitutional transformation of customary law;
  • as well as the complexities of implementing court decisions by the executive; and
  • the tender is worth R10 million. (4)

The announcement tied in with a discussion document on transformation of the judiciary and the role of the courts. The document noted: "Judges are not less immune to public scrutiny than members of the Executive and Legislature." (5)


The aim of this Review regarding transformation of the judiciary means that the Minister wants the judiciary to “work” with the government to achieve common objectives. In essence the courts, executive and legislative branches would be an integrated entity working towards a common goal that would be mostly defined by the political party in government. It occurs because the executive and legislative branches are politically defined. This can contradict the notion of separation of powers which is an indispensible feature of accountability in a constitutional democracy. The courts would no longer have the ability to check the powers of the other branches of government and judicial authority (s165) would be compromised. (6)

Because we live in a constitutional state, the highest law comes from the Constitution. With this in mind it is clear that the government has to adhere to the rule of law which in this case is embodied in the Constitution. With the Executive seeking to review the courts, have we not begun to move away from the rule of law towards the rule of power?

(1) www.politicalanalysis.co.za/2011/11/27/south-african-government-attempts-to-rein-in-the-constitutional-court
(2) ibid  
(3) http://www.bdlive.co.za/national/law/2013/08/26/contract-for-scrutiny-of-top-courts-quietly-awarded
(4) ibid
(5) http://www.justice.gov.za/docs/other-docs/2012_transformation-judiciary.html
(6) www.info.gov.za/documents/constitution/1996/96cons8.htm#165

06 September 2013

Eythan Morris – eythan@hsf.org.za
Helen Suzman Foundation