Interpreting the role of judicial review on executive policy decisions : the case of United Democratic Movement v Eskom

Abstract

The South African Constitution, 1996, provides for the separation of powers among the three branches of government (the legislature, the executive, and the judiciary) without definitive contours that define the demarcation features of the doctrine. While each branch is obliged to realise and protect the Bill of Rights, the Constitution equally created obligations for each branch to carry out its duties effectively without unconstitutional restriction. This is a constitutional mechanism that sustains and fuels democracy. Section 85(2)(b) of the Constitution accords the executive branch the power to formulate and develop policy without subjecting such policy to constitutional judicial review unless the policy is inconsistent with the Constitution or violates fundamental rights. Section 172(1) obligates the courts to declare “any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency”. This means that nothing is beyond the scrutiny of the courts. Section 2 also elevates and affirms the supremacy of the Constitution in that any “law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” The courts are therefore permitted to intervene when the policy, the formulation of which is the province of the executive, is inconsistent with the Constitution. Where the policy does not offend the Constitution, the courts are barred from unconstitutional intrusion into the terrain of the other branches. However, the challenge arises in determining whether a policy is inconsistent with the Constitution, thus allowing the courts to constitutionally interfere with the executive’s policy-formulation function. This research examined whether the North Gauteng High Court acted in line with the separation of powers doctrine when it ordered the executive not to load-shed certain public institutions, declaring such conduct as a violation of fundamental rights. The research used the case of United Democratic Movement v Eskom to illustrate that even if a policy appears to be poorly formulated and unpopular, it is not up to the courts to intervene. Rather, it is up to the voters to force policy changes through political and electoral processes. Such judicial intervention, in the absence of constitutional grounds, is an unmandated intrusion. The research recommended judicial caution and restraint when the courts are faced with policymaking cases with budgetary and resource-allocation implications. The research outlines the critical importance of the separation of powers as a doctrinal hygiene of the Constitution to ensure effective, accountable government and the rule of law. The research posits that there must be clear fundamental rights violation and unconstitutionality to warrant judicial intervention in the executive’s policy functions.