In this episode, we speak to Justice Steven Majiedt of the Constitutional Court of South Africa on the unique history of South African constitutionalism, whether the constitution can bring about transformation and the future of socio-economic rights protection in light of COVID and the cost-of-living crisis.
TRANSCRIPT: Justice Majiedt: The Constitutional Court of South Africa and South African constitutionalism
Daniil Ukhorskiy (0:02) You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. I’m Daniil Ukhorskiy, Blog Editor and Podcast Host at the Hub, and in today’s episode we talk to Justice Stephen Majiedt of the Constitutional Court of South Africa about the role of the court, the unique history of South African constitutionalism, and its future.
(0:21) The Honourable Steven Majiedt is a sitting Justice at the Constitutional Court of South Africa. He previously served as a judge for two decades, first on the Northern Cape High Court, and then the Supreme Court of Appeal. Before joining the judiciary, Justice Majiedt was an advocate at the Cape Bar, acting in cases for clients of all backgrounds, taking great pride in the opportunity to represent more disadvantaged people.
(0:43) We are honoured to have Justice Majiedt here with us today to share his experience and insight.
Justice Majiedt (0:48) Good morning, Daniil. It’s a— it’s an honour to be here, and it’s always good to discuss with others our Constitution, which is much admired throughout the world, but there are so many challenges, as you would know, that we confront in our country and the Constitution is central to that, and we will no doubt explore it further later today. Thank you for the opportunity.
Daniil Ukhorskiy (1:11) Absolutely. So, the Constitution of South Africa, ratified in 1996, marked the legal end of a dark chapter in South African history, the apartheid regime.
Justice Majiedt (1:24) Yes.
Daniil Ukhorskiy (1:25) As you say, human rights scholars praised the Constitution for its generous provisions granting enforceable civil and political and socio-economic rights, as well as many other aspects. So, to start off, how did the shadow of the apartheid regime influence the drafting of the Constitution?
Justice Majiedt (1:40) Thank you. Now, we must bear in mind that South Africa under apartheid had a parliamentary sovereignty system. That meant that the Parliament reigned supreme, and Parliament passed the laws and the courts were bound to implement those laws. The courts had very narrow room within which to challenge laws. If the procedures were properly followed in Parliament, there was hardly anything that courts could do to challenge those laws. And so parliamentary sovereignty was the antithesis of—of what we have today — the supremacy of the Constitution.
(2:22) Now, there was a lengthy process that led up to the adoption of the Constitution that entailed constitutional negotiations conducted within a framework, and once the consultations had— and negotiations had been completed, there were a framework of constitutional principles agreed upon, and on the basis of that the Constitution was written — first, the interim Constitution, and thereafter, our present Constitution. The interim Constitution is a 1993 Constitution, and the final Constitution is our present Constitution, adopted in 1996.
(3:06) And during the negotiations, the shadow of apartheid and parliamentary sovereignty loomed large over the— over the constitutional process. And those who wrote the Constitution, particularly those from the liberation movements, from the African National Congress, the Pan-Africanist Congress, the Black Consciousness Movement, were adamant that there must be a complete break from the past, that the ravages of apartheid — which was terribly oppressive, and in the most extreme, a deadly system — had to be shaken off completely.
(3:46) And so our Constitution, in its preamble, makes very clear that the Constitution represents a complete break from the past, and it emphasises certain fundamental concepts, which is noteworthy and which is significant, and calculatedly those include equality, freedom, and dignity, because those were the three values— constitutional values that were the most brutally taken away from the majority black population by the apartheid regime, and I use “black” in the sense of those who would classify previously as Africans, Coloureds, and Indians— so, all those who are not white, were brutally oppressed and those who drafted the Constitution— the Constitution made clear that there must be a drastic departure from the past regime. And so now we have constitutional supremacy — the Constitution is the supreme law, and all laws must comply with it, and the constitutional values represent that break from the past.
Daniil Ukhorskiy (4:50) And so, you mentioned some of the key cornerstone concepts of the Constitution. What are in, your view, the most unique aspects of the Constitution?
Justice Majiedt (5:00) I should think that the unique parts of the Constitution is that it establishes strong democratic government in three spheres, in national, provincial, and local government. It emphasises those values: freedom, dignity, and equality, and those values permeate the Constitution throughout, those foundational values. It establishes the right to vote to everybody. It establishes, importantly, civil and political rights, which are “first generation rights”, as we call them, those rights that are firmly entrenched, and particularly in the Bill of Rights. And then it establishes, importantly, which is rare in constitutions generally all over the world, the inclusion of “second generation rights”, or socio-economic rights.
(5:58) And there is a strong Bill of Rights, which is entrenched so that it could only be amended— the Constitution can be amended through a two-thirds majority vote, but the Constitution, as far as the fundamental rights are concerned, can only be amended with a 75%— a super-majority. And so the Constitution entrenches those values. It establishes strong civil and political rights, justiciable rights, and also justiciable socio-economic rights. And it creates a presidency with wide powers, some may argue— some argue that the powers are too wide, that there are not enough checks and balances. It establishes a strong executive. It establishes a legislature with wide ranging powers and the judiciary, that— the third arm of government, has the overriding guardianship over the Constitution.
(6:55) More particularly, our court, the Constitutional Court, as the highest court in the country, is the last stop, the upper guardian of the Constitution, if I may call it that. And the Court, again, subject, I think we will discuss later— the Court has ensured that its voice is heard, that it— that it fulfils its role as upper guardian, and the courts generally, I think, have a tremendous track record in our country, post-1994, in guarding the Constitution, also in the difficult times that our country has been going through for the last decade or so. And the Constitutional Court, in particular, has received widespread accolades for standing firm in the face of an onslaught against the Constitution, and that onslaught doesn’t look like it’s going to be alleviated in any distant future.
Daniil Ukhorskiy (7:44) Before we turn to the role of the court, which we will certainly discuss, I just wanted to hear your thoughts on a newer emerging trend of critical scholarship about the South African Constitution. For instance, Professor Joel Modiri argues that the Constitution has failed to deliver concrete historical justice and that it reproduces some of the power dynamics of apartheid. One reason, he suggests, is that it relies on some of the same Western liberal and capitalist ideals that underpinned past apartheid power structures. So, to your view, has the South African Constitution been transformative?
Justice Majiedt (8:24) Well, a constitution is a document produced by politicians. It was negotiated very— in very, very hard terms at what we call CODESA, the Convention for a Democratic South Africa. And it’s very important, and I have noted the critics like Professor Modiri and others, who have become “constitutional abolitionists”. While the Constitution is a document, it is not a panacea, it is— that is very much a political question. So what the courts can do— the courts can only work with what has been— what has been produced as the highest law of the land. And so at CODESA, they were hard bargaining, and there was give-and-take — those— that’s the nature of negotiations.
(9:11) And I think I’ve seen some of the— probably— not necessarily Professor Modiri, but some of those constitutional abolitionists speak of a “post-conquest” Constitution. Well that is exactly the fundamental misconception — the premise is simply wrong. You can’t start an argument on a fallacious premise like that. This is not a post-conquest Constitution. We must recognise that it is a negotiated settlement between two factions at opposite ends of the political spectrum — those in power and those who should have the power who didn’t have it. And so there was a lot of give-and-take — it was— in colloquial language, there was a lot of horse trading. And so the Constitution that we have is the product of negotiation — it is not a product of a post-conquest— nobody conquered anybody. Everybody negotiated with somebody else. And so the politicians must explain why the Constitution reads as it does, but as far as I’m concerned, speaking as an ordinary citizen, it’s clear to me that this is not a post-conquest Constitution. It’s a negotiated settlement, and therefore you will have elements there that are also in it to meet the concerns of the minorities.
(10:26) And so— and so the courts have done what they could with the Constitution that is before us. A perfect example is the socio-economic rights debate, where many people speak of a “minimum core”, and the Constitution doesn’t have a minimum core concept. I mean, the Constitutional Court has rejected that from the very early years, because the Constitution specifically says, in some instances (for example, the right to health and the right to housing), that there must be “reasonable measures” taken by government, and that there must be “progressive realisation” of these rights. And so we can only go with a text of the Constitution and apply the text. And so I think the courts have done what they could. There will always be criticism, which is very welcome. But criticism must be based on proper fundamentals. You can’t, for example, speak, as I’ve said more than once now, of a post-conquest Constitution, when clearly what we have, on the objective facts, is a negotiated settlement Constitution.
Daniil Ukhorskiy (11:27) And so, you spoke to some of the limitations of South African constitutionalism today. I’m wondering what you think are some of its prospects? It’s been approximately 25 years since its promulgation. What do you think the next 25 will look like?
Justice Majiedt (11:44) Well, I think that we have— we have a hard time ahead of us, because the aspirations of the majority, who are largely poor and still deprived of many resources, are becoming louder and louder, and the resources are shrinking. The resources are shrinking— the two are related to each other. The resources are shrinking, and therefore these demands can’t be met, even, I think, “reasonably”, because there has been tremendous malfeasance in government over the last— and also in the private sector, I must add, over the last 10-15 years or more, maybe more.
(12:23) There has been poor governance in a number of respects, and we see it most clearly at the local level, where municipal services have ground to a halt, and in some instances have completely collapsed. We have an energy crisis, which I understand, from what I read, should have been foreseen 15-20 years ago, when government was warned that, with the opening up of the economy to all sectors— in all its sectors to the global economy— previously, it was a pariah, it was excluded, it was isolated, now the whole world welcomed South Africa— economic opportunities opened and economic expansion was rapid. That was foreseeable. And government was warned 15-20 years ago, I understand, that electricity capacity must be rapidly expanded and it wasn’t heeded, and now we see the serious energy problems which have an adverse effect on the economy.
(13:22) So, resources are shrinking, demands are climbing, and so demands on government and on the courts, particularly as far as socio-economic rights are concerned, will be increasing all the time. And it is— those, I think, will be South Africa’s biggest problems and challenges in the future.
(13:39) Related to that is the land question. There is this endless debate that you will be aware of the Constitution being inadequate in section 26, about land redistribution. Well, those matters are definitely going to come to the court, you may know that the attempted amendment of the Constitution, particularly section 26, the land issue, did not reach the requisite majority, and so therefore it failed. And so what is on the table now is an Expropriation Bill, which in all likelihood will be— will have to be tested for constitutionality in our Court. So, the less I say about that, the better.
(14:17) But Daniil, I think our greatest challenges in the country going forward in the next foreseeable future would be socio-economic rights enforcement and the lack of resources that’s coupled with it, and the land question. Those will be the two biggest challenges for the courts, particularly for the Constitutional Court.
Daniil Ukhorskiy (14:35) Well, that’s a perfect subject from which to move on to the role of a court because, as you say, absolutely correctly, the court will no doubt be involved in resolving and playing a part in answering some of these questions. But first, on a general level — over the years, some justices have expressed their views about the role of the Constitutional Court as an institution. For instance, Justice Sachs said in Makwanyane, “the function given to this court by the Constitution is to articulate the fundamental sense of justice and right shared by the whole nation as expressed in the text of the Constitution”.1 How would you characterise its role?
Justice Majiedt (15:15) Well, first, the Court is, of course, the upper guardian of the Constitution, and the Court must apply the Constitution based on the text before it, but also based on the purpose and the context, and the context, we know, is a fundamental break from the past, it is to increase opportunities for those who’ve not had it before, and the purpose is to create a better life for everybody in the country, regardless of race, colour, class, gender, or status.
(15:47) And so, the Court is faced with a Constitution which is aimed to transform, and transformative constitutionalism is at the backbone of the Court’s jurisprudence, I would suggest. The track record of the Court over the last 20 odd years has been, I think, remarkable. And it is pleasing to travel all over the world where knowledgeable people, such as professors of high ranking universities, or many Chief Justices, lauded the Constitution and the work of the Constitutional Court.
(16:22) Now, the Court is restricted by the doctrine of separation of powers — despite its very wide powers— and many people express admiration and surprise at the wide powers that the Court has — the Court holds the executive and the legislature accountable, and has held the President accountable in the so-called Makhanda case, and has also held a former President liable for contempt and has incarcerated him2— those are wide powers, but the Court’s powers are not unbounded. It’s bounded by the separation of powers doctrine. Colloquially speaking, we must— we must “know our place”, we must “stay in our lane”.
(17:06) I was asked at a recent lecture I gave, “But why does the Court allow the legislature so much latitude in instances where, clearly, the law is unconstitutional, but the legislature fails in its duties to correct those unconstitutional rules?” And I’ve explained that, quite often, par for the course would be for the Court to suspend declarations of invalidity for a period of, say, two to three years, and give Parliament time and the space to do its work, to correct the wrongs in the Bill or in the law that we’ve identified. And often Parliament can’t meet those deadlines, and we’ve been generous and extended it where they’ve asked for an extension, where there are good grounds to do so. But the Court reaches a point where it reads into laws— we— suspends invalidity declarations— it reads into that law the words in the interim, as it should read to cure the deficiency in the meantime, and when Parliament comes back, and it hasn’t reached the deadline— hasn’t, within the deadline set— repaired the damage to the law, so to speak, that then becomes the law. Our order would normally say that unless Parliament amends the law and cures the deficiencies, those words read in will be as the law then reads.
(18:35) And so that is all that we can do. And the Court’s role is really one of transforming— just to summarise— is to transform, within the parameters of the Constitution, but to stay within its lane, to recognise its shortcomings. It’s unelected judges, and they have been appointed— we have been appointed, not to legislate, but to give judgments and to decide cases based on the powers that we have. The doctrine of legality is very simple — you can exercise only those powers that the law gives you. That’s true for judges, too.
Daniil Ukhorskiy (19:16) So, to unpack this question on the separation of powers and “staying in your lane”, as you say, I think, to some listeners, especially coming from the British legal tradition, the way you describe the powers of the Court is already very strong, and much stronger than parliamentary sovereignty systems would be used to. And as you say, the Court is an unelected body. So, what would you say is the relationship between public opinion, the so-called “will of the people” (which is sometimes referred to in Supreme Court judgments elsewhere), and the judiciary?
Justice Majiedt (19:56) Yes, well, the Constitution is a product of the will of the people because the Constitution was negotiated by those who, first, before the interim constitution, negotiated a set of constitutional principles, and then when we came to the interim Constitution, and particularly the present Constitution, those were elected representatives of the people — the people who were elected in 1994 were the ones who promulgated the 1996 Constitution, and that is the product of the will of the people. That’s the first point.
(20:33) The second point is, of course, of course, courts must listen to the people, but listening to the people does not mean that we could chuck out the Constitution and its provisions. Listening to the people means complying with a will, and where do we find the will of the people? We find it within the Constitution. And so too we find it in the laws passed by Parliament, because remember— I mean, I’m stating the obvious, but it’s important to make the point that Parliament consists of elected representatives of the people in certain proportions, because we’ve got a proportional system, and in proportion to the votes that the parties got, they are represented in Parliament. And so the majority party will always be able to pass laws, as they see it, as is required by their constituency, which is the majority of the voters in the country.
(21:28) So the Constitution and the laws of the land represent the will of the people, through their elected representatives in Parliament. And so that is what the courts do. Courts listen to the people by applying the laws and where the Court sees that that particular law falls short of the Constitution, which is the supreme law, then the Court says so, the Court takes remedial measures — the Court makes a declaration of invalidity, it suspends the declaration for Parliament to correct, and it provides for interim relief, where it can do so, in a way that is necessary.
(22:06) And so courts listen to the people within the parameters of the Constitution and the law. And if there is dissatisfaction with what the law or the Constitution says, then of course, it must be amended. The Court can’t do it. It must be done by the legislature and those who vote must vote for those whose they think are able to express their wishes for the amendment of the law or the Constitution, as the case may be. It’s not for the Court to do.
Daniil Ukhorskiy (22:34) I think you correctly characterise both the Constitution, in its original form and an Act of Parliament, as an expression of popular will or expressions, rather, of popular will. But in cases where they contradict, which I think are the most consequential for the Constitutional Court, right?— When it’s a question of potential contradiction between the Constitution and an Act, a legislative Act, is this a question of listening to popular will, or are there other tools that the Court is deploying in order to find a resolution?
Justice Majiedt (23:20) See, well, I reiterate that the Court can only do what it’s permitted to do in terms of the law. The law is the Constitution and the Acts of Parliament, and the Acts passed by provincial experts, by provincial legislatures. The Court can do no more than that. If a law offends the Constitution, then the Court says so.
(23:41) Let’s take, for example, the death penalty. I mean, the death penalty was outlawed in Makwanyane. Unanimously it is also the only judgement, that I’m aware of at the moment, where the Court‚ each one of those 11 judges, wrote, and the reason why each one of them wrote was, how strongly they felt about the abolition of the death penalty, and they all came from different vantage points to the same conclusion. Some of it overlapped, of course. But there’s increasingly a clamour for the death penalty to return as crime runs out of control, especially violent crime— serious violent crime in South Africa. More and more people are clamouring for the death penalty. Well, the way the Constitution reads— there is no doubt that, as the Constitution reads, the death penalty is inhumane, degrading punishment, and that is why it was outlawed. And so how do you listen to the “will of the people” asking for the death penalty when clearly that’s what the Constitution says?
(24:42) And so, I can make many examples. I mean, I recently had a case which I— which I understand is much discussed, the case of Thubakgale, the housing case.3 I mean, there I thought that the progressive realisation duty on government meant that people with approved subsidies who hadn’t received their houses for over 20 years, that by now, government has put in place the reasonable measures — that’s the Housing Act and the Housing Code — and yet nothing has happened, and therefore I thought that, in that case, the only remedy that would be adequate would be Constitutional damages, and unfortunately I was in the minority, but that typically is where one listens to the people and says, “Well, we’ve done so much, what more must we do?” But the Court can only do so within the bounds of the Constitution, and I thought transformative constitutionalism means that we must ask the question of government and that is the fundamental question, really, Daniil.
(25:42) When we talk about listening to the will of the people, we must ask the question as a transformative constitutionalism-based jurisprudence Court. What has government done over the last 20-25 years to progressively realise the right, for example, to housing, or the right to health, and the right to education? And what we can do in a transformative— on a transformative basis is to say, well, let us— show us what you have done, and if we think you haven’t done enough, we say, well go back and do more. That’s listening to the will of the people. As I say, we can only do it within the parameters of the Constitution. That’s a typical example, I think.
Daniil Ukhorskiy (26:18) I think our whole conversation has been begging for us to finally move to the subject of socio-economic rights. And so, maybe just as a recap to listeners who might not be as familiar with the jurisprudence, what is the standard applied by the Constitutional Court in adjudicating socio-economic rights, and briefly, how is it different to some other constitutional orders?
Justice Majiedt (26:46) Now, I’ve indicated to you that the Constitution envisages— and there’s even a third— third generation right, but let me concentrate on the two main ones. Civil and political rights are first generation rights. They are immediately realisable — the right to vote, and so on. And then there are socio-economic rights — those are second generation rights. Some are immediately realisable, for example, the right to education, but there are others, the most— the more important ones, I would suggest, the right to housing, the right to health— access to health, and so on, which have to be realised, and the Constitution says, within “reasonable measures” and must be “progressively realised”. In other words, it envisages not an immediate realisation of the right but progressively, and therein lies the rub. Those who criticise the courts, especially the Constitutional Court say, “Well, you are not moving fast enough.” Well, maybe there’s a valid point to say the courts may— can possibly move faster, but we can only move as fast as the Constitution allows us. And that proviso in the socio-economic rights jurisprudence is the one that— is the important one that people must always bear in mind when they criticise the Court. The Court cannot say that you have to give a house to somebody immediately, and that is typical in the Grootboom case.4
(28:09) In the Grootboom case, which you will know is the right to housing case— what the Court did there was to say those people unfortunate people in Wallacedene— the Court looked at their situation and said, “Well, it’s a terrible situation, but all we can do is to say, government give us your housing plan”, and the Western Cape Government, the Cape Town municipality, gave it up— gave the Court the housing plan, the Court examined the housing plan, and said, “Well, this is not adequate, so you have got to go back and fix the plan in respect of (a), (b), (c), (d) and (e)”. The Court was unable to say, “Well, give Mrs Grootboom and the others like her, the other 5000, a house immediately, a house that complies with (a), (b), (c), (d), (e) and so on, which must have ablution facilities and so on”. The Court was unable to do that. And so the Court said, “Go back to the drawing board, fix your housing plan, and come back and tell us what you do— what you did about it.” And that is what happened.
(28:58) But now, 20 odd years down the line, as I say, in Thubakgale, I said, “Well, we are beyond Grootboom”. We are now at the point where we say to government, “Well, the Constitution says you must progressively realise this right. Tell us what you’ve done.” And from what I saw in the papers, in my minority judgement, I said, “Well, you’ve not done enough. The plan is there. The plan is an excellent plan, from my perspective, as a judge, who doesn’t make these policies, pass these laws. The plan seems to me to be good, but you’re not implementing it. It’s not progressive realising— realisation of that right that Mr Thubakgale and others have to their house on the eastern part of Johannesburg.” And so— and so within those confines, that is the parameters within [which] the Court must move and the Court must ask, What are reasonable measures? Are these measures reasonable enough? and (b) Have these progressive realisation of the rights— does that comply with the Constitution? And that’s all we can do, as far as socio-economic rights are concerned.
Daniil Ukhorskiy (29:57) I think you correctly pin-pointed the criticism to be surrounding progressive realisation, and I think your judgment in Thubakgale embodies this criticism in many ways, which is to say, the Court should not hide behind progressive realisation as an answer to why it does not take a firmer line on the policies of the government. So, applying this to other areas, you know, whether it’s health or education, or many of the other socio-economic issues that unfortunately still plague South Africa, what do you see as a way forward? Should you— once, hopefully, find yourself in the majority, what is the standard that the Court should be asking? I understand that you would like them to show that actual progress has been made, but I mean, in slightly more practical terms — what would you have liked to see in the housing case? What would you like to see in other socio-economic areas?
Justice Majiedt (31:00) Well, I think what the Court was— or must increasingly demand for us to— to make the rights real, because otherwise the socio-economic rights are just rights on paper. It is to say— it is to be more critical about what other reasonable measures you’ve taken. And one would be able to do that where a litigant comes and says, “Well, I know that there’s”— I’m just making a hypothetical example, I’m not saying that this was necessarily the case in Thubakgale. But the litigant comes and says, “I’m aware that there is a budget the municipality has for housing. The budget allowed for the development of housing for those of us in this particular area. And we are aware, because we’ve been told that this budget has been passed and houses will be erected.” And so there would be then— the Court would have cause— the Court can’t do that without that kind of prima facie evidence.
(31:54) Once that prima facie evidence is there, the Court will say to the, well, first of all, government, either municipality, in the answering affidavit, it will have to answer the allegations, and then the Court will assess, with the papers before it, has government done enough in terms of reasonable measures in implementing what it has decided on policy? “We are going to create a township here, we have the funds available, and now we’re going to put it out to tender”. We can’t, 20 years down the line, say, “Well, you know, this and that happened”, and so on and so forth, and so the Courts will increasingly look at those reasonable measures, particularly, and secondly, it will look at progressive realisation. Progressive realisation means that 20 years down the line, there must have been movement. Movement forward, not retrogression — progression means movement forward. And so you will have to demonstrate, as a government accused of not having complied with your duties to realise the socio-economic right in question, “What have you done over the last 20 years,” for example, “to realise that right progressively?” Show us the steps you have taken to get to the point where the people actually get the houses, where the clinic actually gets the medicine it needs, where the school is actually built, and so on. And so— and so increasingly, I think, the Court will have to take a critical view of reasonable measures, on the one hand, and progressive realisation on the others.
(33:13) Now, I wanted to add that government will, I think, increasingly rely on the fact that there is— there are inadequate resources. And that’ll be the next challenge, related to the first challenge. To what extent does the Court say, “Well, you’ve had the budget, you’ve squandered it, or you have misgoverned, or you have— the money simply has been stolen”? To what extent can government be excused for, for example, corruption having played a role in not fulfilling its function, or there has been misgovernance. I mean, there comes a point where the Court will have to say, “Well, that’s simply not good enough”. I’m speculating now, but I can see that that’s going to be the challenge that’s going to arise. Government is going to increasingly say, “Well, we’d like— we’d really like to help these people, but we can’t, we don’t have the resources.” And the question would then be, “Why don’t you have the resources, because you budgeted for it?”, for example.
Daniil Ukhorskiy (34:12) Yeah, just to quickly follow up on that. To what extent do you think the Court will be able to say— well, if there is a case where the government can prove that, for whatever reason, whether it’s, as you say, corruption, theft, or simply a lack of funding, the project could not be realised— to what extent can the Court suggest policies to be put in place so that this doesn’t happen in the future?
Justice Majiedt (34:43) That would be the hard case. You see, you could only, in really extreme cases, where the facts warranted, tell government, “Well, you got to amend your policy”, because policymaking is the role of the executive, and putting that policy into laws is the role of the legislature, not the role of the judiciary. I can foresee the hard case, the really extreme case, where the facts cry out for the Court to say, “Well, you got to go back to the drawing board and amend your policy”. Or the Court may be able to say, “Well, you got to find the funds somewhere— funds somewhere else”, because those funds have been stolen by the very officials who are supposed to serve the people. And so that would be the really hard case, but that would be the extreme case, I would— I should think.
(35:29) One would often find a situation where government would, for example, say, “Look, the funds that were budgeted for, we had to apply for it to an emergency situation”, for example, where we’ve had floods, like happened in one of our provinces, in KwaZulu-Natal, on the east coast. In a case like, one would hardly see a Court saying, “Well, you can’t do that, you got to apply these funds here”. So that would be the easier case. Or government would come and say, “Well, the pandemic, the Coronavirus, and the pandemic has forced us to divert these funds elsewhere”, for example, for emergency health measures. No Court, I think, in its right mind would say, “Well, you can’t do that”.
(36:12) But the really hard case, the extreme case would be where government says, “We admit that, either, we’ve misgoverned, or the thefts— or the funds have been stolen”, or both, and there the Court may be in a position— I put it no higher than that— the Court may be in the position, in the right case with the right facts, to say, “Well, that’s not good enough. You had all the means to progressively realise this right. You’ve acted unreasonably in not doing so. And so we order you to do X, Y, Z”. And the order may not be, in particular— be that you are— order to amend your plan or your policy. The order may be that you’re in contempt of a previous court order. The order may be that you have to pay constitutional damages, coupled with an interdict— an interdict— a supervisory interdict where the Court says, “From now on every three months, or every six months, you must come back and report to us what you are doing to remedy this”.
Daniil Ukhorskiy (37:12) And just to go back to— you mentioned that the COVID pandemic— there will be many cases where government has two reasonably competing interests. So, during COVID, you had freedom of movement, economic freedoms balanced against the right to life, right to health. Everybody, I think now, understands that there were many places to draw that line, and it’s very difficult to say that there was one correct one. And I think you suggested, and I would agree, that this has to be a role fulfilled by governments, public bodies, acting through the will of the people. But what is the role of the Court in such situations where there are two competing interests? How does it ensure that it doesn’t just become a rubber stamp and completely differential when things get difficult, when the problems are real?
Justice Majiedt (38:10) That’s a very good question because COVID and the pandemic has demonstrated to us how competing rights, particularly in a global emergency like that, have to be very carefully weighed. Of course, we would like to have people have the freedom of movement and so on, but there comes a point where you have to make a choice, and so when the national hard lockdown started in South Africa in March 2020, when the President announced that the whole country will be under lockdown, and a strict lockdown, the Court, I can tell you, was flooded with many, many applications for direct access, to have this ban lifted on the basis of freedom of movement and freedom of choice, and so on, freedom of economic activity, trade and so on. But then— and then there were those, the most extreme ones, that said, ‘Well, there’s nothing like a coronavirus, the virus doesn’t exist. This is a grand conspiracy of Big Pharma, of the banks”. And then you have government answering in their affidavits, giving us all these reports of renowned scientists who have been globally acknowledged for what they’ve achieved, virologists and so on, and you read these documents and then you say to yourself, “Well, I’m a lawyer, who am I to second guess what eminent professors and neurologists tell us?” and there is a perfect example where we had to bow to the superior knowledge of those experts — not rubber-stamping, but critically analysing it and coming to the obvious, self-evident conclusion that government was right. And with a benefit of hindsight, of course government was right.
(40:01) It’s the same thing now with a vaccination — there are many anti-vaxxers that come to Court and so on. And again, the experts tell you that vaccination is the way to go. People may have their views, but if government takes a particular position and that stance is undergirded by solid, empirical evidence from renowned experts, then of course, you must make a choice and say, “Well, this right must be limited in terms of this other— in terms of this other law”. And so during those cases we were flooded, as I say, with challenges to the emergency regulations, but we dis— we dismissed all of them. We dismissed it on the basis— I can tell you that the Court would rather like you to start in the High Court and then go to the Appeal Court— the Court doesn’t want to be court up first and last instance. But that decision was reinforced by the fact of that strong empirical evidence. If there had been any strong empirical evidence to the contrary, I could see the Court saying, “Well, we must intervene here. This is a travesty, and we must grant direct access”. But we didn’t because the evidence was quite strong.
(41:15) And then I can make another example and again, that case may come to our court on appeal, because the Appeal Court has decided that the tobacco regulations, the regulation outlawing cigarettes and so on, was irrational. I’ll say no more than that, because otherwise, I’ll pre-judge the issue and I don’t want to have to recuse myself when the case comes. All I can say is that the Appeal Court has demonstrated there that it’s not a mere rubber stamp. The Appeal Court has shown, at least for that court, I can’t speak for it, but based on his judgment, it says that tobacco regul— the regulating of tobacco products is irregular, irrational, served no purpose at all. The means selected, banning tobacco products, did not— is not rationally connected to the end. It was to protect people against the pandemic. So— so that’s a typical example where a court is not merely a rubber stamp.
Daniil Ukhorskiy (42:07) I think I’m curious, if I may— maybe both of those examples don’t really test that case, and maybe it’s difficult to frame one that does, because on the one hand, of course, the first hurdle is rationality, and in the case of the COVID pandemic, it’s clear that the policy was not manifestly irrational, and the same thing with tobacco, at least, to a certain extent, I’m sure the parties will have arguments as to say why the regulations are there for good reason, and the courts shouldn’t be interfering with them. What I’m wondering is what happens in a true balancing of rights case, so to speak? So, maybe if the shoe’s on the other foot, so to speak, and the South African government decided that they had economic experts that testified to the economic impact of closing business, and decided not to lock down at all, and a petitioner came with the evidence of virologists, and again, I don’t want to put them on the same footing, but just as, as a hypothetical, you know, the petitioners and governments will always have their own kind of evidence— What are some of the tools that you, personally, as a judge, and more broadly, as the Court the institution, uses when there are two very legitimate, competing claims?
Justice Majiedt (43:37) Our Constitution doesn’t have a hierarchy of rights, so every case will be— have to be assessed on its own facts. And we did, in fact, have in the pandemic, economists or trade bodies coming to us for— especially the hospitality industry— the hospitality industry, the restaurants and guest houses and hotels came, and liquor associations came and said, “Well, we are suffering terribly and we need to have some sort of leeway”. And yet the Courts stood firm against it because public health interests superseded — because there was direct competing rights, of course, the right economic activity and to trade freely and so on, as against the right to public health. And in that case it is very clear that public health interests superseded those of the economic interests. That was a typical example. And so every case will have to be assessed on its own facts.
(44:31) A typical example is the Soobramoney case,5 where Mr Soobramoney wanted dialysis, and the Court there looked at the bigger picture. The Court said, “Yes, Mr Soobramoney, we will be able to help you but that will be to sacrifice the greater good for the individual. In other words, if we make that order, we set a precedent that all persons in your position, Mr Soobramoney, will have to receive urgent dialysis, whereas the resources, as the government showed decisively, should— can— be put— should— can and should be put to better use for the greater good to afford dialysis treatments for the vast array of people who needed it, and not on an urgent basis, but on a continuous basis.” And that’s a typical example of competing rights, where the Court makes an assessment and says, well, you got to make an assessment and say, what is for the greater good?
(45:21) And again, the same with a pandemic — what was for the greater good? Are we going to assuage this group of industrialists and hospitality industry people, and liquor associations, as opposed to the greater good, the general public with a virus that was ravaging the world and having devastating implications for the health of people? And I think, truth be told, in— with the benefit of hindsight, there is always a perfect science. The government was right to have the hard lockdown. I mean, our fatality figures, although some people say they are wrong— our fatality figures do not really reach those of other countries.
Daniil Ukhorskiy (46:07) Just to close with a couple of slightly more personal questions. I was wondering, how would you characterise your role as a judge within this institution and within this polity? And how has it been shaped by your previous experiences, most notably, the liberation struggle?
Justice Majiedt (46:28) Well, Daniil, you know, I come from a background where— I don’t know how much you know about my background, but I’m black, I’m a South African, I have an interesting history in that I’m a descendant from— as far as our history could be traced, I’m a descendant from slaves who came from the island Java, which is now part of Indonesia, came as slaves— as Malay slaves to the Cape. And the first people of South Africa, the southern part anyway, the indigenous people of South Africa, the Khoisan, they were hunters and gathers. And the three slave brothers that came here was named Majiedt, although they didn’t spell their last name like I do now at the moment. One of the brothers, after slavery was abolished, moved inland, married a Khoisan woman, and that I’m the product of that union — a Malay slave and indigenous person. So, that’s my history.
(47:24) And you would know that I was deprived under apartheid, and that has shaped my being as a judge and as a person. Because judges are not robots — we have our own predilections, we have our own likes and dislikes, and we have our own subjective feelings. We are— we— as I say, we are not robots, and so that— those will show in our judgments. And I’ve said, in many of my interviews to be appointed as a judge, that I always have empathy for the underdog, and I think it shows in my judgments. It is a disposition to help those who can’t really help themselves, within the confines and the parameters of the laws, of course. And so— and so my inclination is for the oppressed, for the underdog, for the, in inverted commas, “the little guy / girl”. And so— and so that is where I come from.
(47:24) I think my role as a judge is to help transform society within the parameters of our Constitution, to serve our people to the best of our abilities, to remain humble, to work hard, to work honestly, to make South Africa a better place because it’s a country with so much potential. It’s rich in resources. But I think South Africa’s greatest resources are its people. And— and so I think to realise that potential all of us must do our bit. And I’m privileged to sit in the highest court in the country, and I see my role as helping people realise the rights that are enshrined in the beautiful Constitution amidst huge challenges, which are only going to become worse, I think, in the next few years.
Daniil Ukhorskiy (48:19) I can think of no better place to end it. Thank you so much for your time. It has been an honour and fantastic education.
Justice Majiedt (49:20) Well, let me just end by saying that it’s been a privilege and I look forward to more interaction with Oxford in general, but also with you guys in future, and so I hope it won’t be the last that we participate with Oxford. And I wish all of you well and thank you for this opportunity.
Daniil Ukhorskiy (49:36) Thanks. It’s been a pleasure.
Daniil Ukhorskiy (49:41) RightsUp! is brought to you by the Oxford Human Rights Hub. The Executive Producer is Meghan Campbell. This episode was produced and edited by Sophie Smith, and hosted by Daniil Ukhorskiy. Music for this series is by Rosemary Allmann. Show notes for this episode had been written by Sarah Dobbie. Subscribe to his podcasts wherever you’d like to listen to your favourite podcasts.