University of Melbourne
Expert Seminar on South African Constitutional Law

The Role of the Courts under the South African Constitution:  An Australian Comparison
Commentary to the paper presented by the Hon Dennis Davis, Judge of the High Court of South Africa and President of the Competition Appeal Court
The Hon Justice Melissa Perry
Justice of the Federal Court of Australia

21 February 2014
Introduction
The Constitutional Court of South Africa is built at the site of the notorious ‘Old Fort Prison’ in Johannesburg.  Infamous for its harsh treatment of the hundreds of thousands of men and women who were imprisoned within its walls over its long history, the choice of the site for the Court has a powerful symbolism.  
As a former President of the Constitutional Court has explained in words that I found deeply moving:
“The Court building has itself become symbolic of the constitutional project of creating a bridge between a terrible past and a brighter future.  It is not a bridge that can simply be crossed once, leaving the past behind.  It is a bridge that must be crossed again and again in the constant search for justice in our young democracy.  The Prison in the Court and the Court in the Prison is a constant reminder of this fact.”
Thus, while the foundations and many of the original structures of the old prison remain, what was once a place of injustice and lawlessness has now come to provide a home for “human dignity’s ultimate guardian”.  
While the Australian Constitution was born in very different times with more modest goals driven largely by fiscal considerations, nevertheless there is much that both constitutional systems share.  My focus, building upon themes from the authorities to which Judge Davis has taken us, is to compare the role of the courts in the Australian and South African constitutional systems.  
A.	The significance of the written constitution in the rule of law
My starting point must be the tectonic shift that occurs when a country moves from an unwritten to a written constitution in a democratic society.
In the case of the South African Constitution, that shift is encapsulated in one simple provision, section 2, which reads:
“This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
In less elegant language, covering clause 5 of the Commonwealth of Australia Constitution Act provides that:
“This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth …”
Nonetheless, their import is essentially the same.  In each case, as the supreme instrument, the written constitution has three core functions:
1.	it creates the institutions of government – the legislature, the executive and the courts;
2.	it gives those institutions defined powers; and
3.	it vests the courts with the function of adjudicating upon whether the institutions of government have acted within lawful boundaries. 
A written constitution, in short, creates, empowers and binds. 
The authority of the Constitution to fulfil these tasks is sourced in the consent of the people.  So the Preamble to the South African Constitution begins, “We, the people of South Africa, … through our freely elected representatives, adopt this Constitution as the supreme law of the Republic…” and the Australian Constitution commences by recording the agreement of the peoples of the States “to unite in one indissoluble Federal Commonwealth”.  
It follows from these propositions that a written constitution represents a fundamental change from a system of parliamentary sovereignty under common law constitutional principles to a system of constitutional supremacy founded in the consent of the people.  By such means, the written constitution becomes itself a manifestation of the rule of law.  Perhaps in recognition of this, the “Supremacy of the Constitution and the rule of law” are expressed together as one of the four values on which the Republic is founded in s 1 of the Constitution of South Africa.  As Ngcobo J said in Affordable Medicines Trust v Minister of Health at [49]:
“The exercise of public power must… comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution. It entails that both the legislature and the executive ‘are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law’.”
The implications of this are illustrated by the decision in President of the Republic of South Africa v Hugo, albeit that that case concerned the Interim Constitution through which the transition to the 1996 Constitution was effected.  The decision held that the powers of the President which were set out in s 82(1) of the Interim Constitution, including the power of remission, had their origin in the prerogative powers exercised under former constitutions.  However, s 82(1) now constituted the sole source of powers conferred on the President.  The President could act only as an executive organ of government and there was no fourth branch of government – no external source of power outside the Constitution.
Similarly, Australian courts have held that it is s 61 of the Australian Constitution, and not the prerogative power, which is the ultimate source of Commonwealth executive power in Australia.  As Justice French (as his Honour then was) said in Ruddock v Vadarlis (2001) 110 FCR 491:
“…executive and judicial powers of the Commonwealth are conferred by the Constitution and not otherwise… While the executive power may derive some of its content by reference to the royal prerogative, it is a power conferred as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government.”
B.	The role of the courts under a written constitution
I would like to focus now a little more closely on the role of the courts in this constitutional structure. 
The South African Constitutional Court was an entirely new court intended to serve as “a complete break from the previous judicial system” which, under apartheid, had been required to administer oppressive laws.  The creation of a new court was therefore necessary to ensure public confidence in the Court for its role was to be pivotal in ensuring that government acts according to law.  
In this regard, both the actual and perceived independence and impartiality of courts is central to the rule of law.  As the High Court stated in the Boilermakers’ case:
“The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed.”
This responsibility was also emphatically asserted by the Constitutional Court in The President of the Republic of South Africa v Hugo in rejecting the English approach whereby the jurisdiction of the courts to review the exercise of prerogative powers depended upon the subject-matter of the power.  Rather, the Court held, “[t]he interim Constitution obliges us to test impugned action by any organ of state against the discipline of the interim Constitution and, in particular, the Bill of Rights.”    
The fundamental shift in constitutionalism that this entailed was recognised by Chaskalson P in Pharmaceutical Manufacturers when his Honour said that:
“Courts no longer have to claim space and push boundaries to find means of controlling public power. That control is vested in them under the Constitution which defines the role of the courts, their powers in relation to other arms of government, and the constraints subject to which public power has to be exercised.”
Consistently with this, the Constitutional Court rejected the contention that its jurisdiction in constitutional matters did not extend to what was said to be an exercise of executive power under statute, holding instead that “[t]he exercise of all public power must comply with the Constitution which is the supreme law, and the doctrine of legality which is part of that law.  The question whether the President acted intra vires or ultra vires in bringing the Act into force when he did, is accordingly a constitutional matter.”  
In asserting that jurisdiction, the jurisdiction of the Constitutional Court of South Africa, as initially vested, became more closely aligned to that of the High Court of Australia, even though I think that Australian lawyers may have difficulty in accepting that the power of judicial review extends to reviewing a decision of the Head of State (relevantly in Australia, the Governor General) on advice to bring a law into force, as the Constitutional Court held in Pharmaceutical Manufacturers.
While, in contrast to the High Court, the Constitutional Court initially did not stand at the apex of the judicial system as a general court of appeal from all courts in South Africa, the decision in Pharmaceutical Manufacturers nonetheless confirmed the comprehensiveness of its constitutionally entrenched jurisdiction to enforce the rule of law over all executive action.  Similarly, under s 75(v) of the Australian Constitution, the High Court has original jurisdiction to grant relief against an officer of the Commonwealth and, in a series of cases in the migration context, the High Court has confirmed that s 75(v) of the Constitution entrenches a minimum provision of judicial review that cannot be ousted by the Parliament.  This had the result that the privative or ouster clause in the Migration Act 1958 (Cth) was effectively read out of existence by the High Court in Plaintiff S157/2002.  As the High Court said in that case:
“The reservation to this Court by the Constitution of the jurisdiction in all matters in which the named constitutional writs or an injunction are sought against an officer of the Commonwealth is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them.  The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action.  Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction.”
Furthermore, the decision of the High Court in Kirk v Industrial Court of New South Wales held by constitutional implication that the States have no power to deprive a State Supreme Court of its supervisory jurisdiction to enforce limits on the exercise of State executive and judicial power.  In effect, therefore, the High Court has found an implied constitutional guarantee that equates to s 34 of the South African Constitution which expressly guarantees access to the courts, even though it may not play out with the same results as in the decision of the Constitutional Court in Modderklip.
Nor, it would appear can the supervisory jurisdiction of the courts be circumvented by the conferral on the executive of a completely open-ended discretion, as the Commonwealth suggested in the course of argument in S157/2002.  The High Court in obiter rejected that proposition, considering that such provisions “would appear to lack that hallmark of the exercise of legislative power … namely the determination of ‘the content of a law as a rule of conduct or a declaration as to power right or duty’.”  
C.	Fiji:  a breakdown in the rule of law
If I may be permitted to diverge from the topic strictly allotted to me, the significance of these principles was brought home to me most powerfully in a matter in which I appeared for amicus in 2009 in the Fiji Court of Appeal, Qarase v Bainimarama.  This was the last in a series of such cases in Fiji where, perhaps somewhat ironically, Fiji has a history both of coups and of litigating their outcome.  
The High Court of Fiji had upheld the Prime Minister’s dismissal and dissolution of the Parliament on the ground that they were carried out lawfully in the exercise of so-called prerogative powers of the Head of State sourced outside the Constitution to act for the public good in an emergency.  Those powers were said to be reviewable only on the grounds of bad faith or arbitrariness.  They were for all intents and purposes, beyond the power of the courts to review.  That aspect of the rule of law which required the independent enforcement of constraints on power was lacking.  
That decision was overturned by the Court of Appeal.  Whereas the Constitution of the people of Fiji had barely rated a mention in the High Court’s decision below, the Court of Appeal upheld the Constitution as the supreme law of Fiji, in accordance with its terms, and the rule of law. 
Tragically, however, the following day the President purported to abrogate the 1997 Constitution ostensibly “[t]o facilitate the holding of true democratic and parliamentary elections”, appointed himself as Head of the State of Fiji under what was described as “a new legal order”, and revoked the appointment of all judicial officers with the intention of making new appointments.  
The final irony was in the certificate issued by the Acting Chief Registrar of the Court of Appeal on 2nd August 2009.  That certificate purported to “wholly terminate” the appeal proceedings, the evident intention being to “overrule” the Court of Appeal decision and restore the authority of the decision at first instance upholding the validity of the interim military government.
Conclusion
Drawing these threads together, the Fiji experience reminds us both of the strengths of our constitutional systems in which all governmental power is sourced in a written constitution and the legality of government action is subject to judicial review, and of their frailty.  If I may be permitted to adapt the words of the former President of the Constitutional Court in the passage with which I began, the court in such a system is the bridge between the Constitution and government action.  And it is a bridge that will be crossed again and again as courts discharge their role as the protectors of the Constitution and the rule of law.