Picture: ISTOCK
Picture: ISTOCK

It has consistently bothered me that, on the one hand, the executive government is allowed to create quasi-judicial bureaucracies within itself, taking more and more responsibility away from the courts, while, on the other hand, the courts practice a religious adherence to the separation of powers doctrine.

How can it be that the executive may usurp powers from the courts, and yet the courts have to continue to "defer and respect"? To those of us conscious of how the rule of law is being violated by our government, it is easy to identify this as one of the greatest contributing factors.

In the 2015 International Trade Administration Commission v Scaw SA case, the Constitutional Court held: "[It seems] self-evident that the setting, changing or removal of an antidumping duty in order to regulate exports and imports is a patently executive function that flows from the power to formulate and implement domestic and international trade policy. That power resides in the kraal of the national executive authority."

This case is an interesting one. Writing as I am from the perspective of the superiority of free markets over government control, in this case the minister of trade and industry was removing an antidumping duty; in other words, a small victory for free trade. The private company in this case, Scaw SA, was arguing for the duty to protect its own vested interests.

However, my focus is not on the merits of the case, but rather on the underlying legal phenomenon of deference. This case does not stand alone in this regard: the Constitutional Court has endorsed a strict adherence to deference on various occasions.

Deference is often conflated with the separation of powers doctrine, but they are distinct. The separation of powers means that each of the three branches of government has an equally important role to play in the governance of our society, and that they may not usurp those roles away from one another. Deference, on the other hand, means the courts believe the government department in question has more expertise on the matter in question than they (the judges) do, and thus they "defer" to the wise judgment of the other branch.

Prof Cora Hoexter describes deference as "a judicial willingness […] to acknowledge the expertise of those agencies in policy-laden or polycentric issues; [and] to give their interpretations of fact and law due respect […]".

It is true that judges are not experts in all, or even some, fields of public policy. But they are supposed to be experts in one particular field: the rule of law. And where the rule of law is violated — even on a matter that is entirely within the expertise of a government department, and is entirely policy-based — the courts should intervene.

A host of legal scholars of libertarian persuasion will disagree with me on this. To them, the only thing worse than elected politicians making laws that interfere with their lives, is unelected judges making laws that interfere with their lives. In a commentary on the American Supreme Court case of Roe v Wade — which legalised abortion — Mark Pulliam writes: "Divining a ‘right’ to sexual autonomy or privacy from [the US Constitution, which] does not even remotely address the topic, is the quintessential act of judicial legislation — an unprincipled usurpation of policymaking entrusted to the democratically-accountable branches of government."

Legislating from the bench has always been a cause for concern for those of a limited-government mind — like I am — but courts making pronouncements that have the effect of bringing the democratic branches of government in line with the tried-and-tested principles of the rule of law (whether procedural or substantive), have a much smaller chance of leading to adverse consequences than an overzealous legislative or executive branch.

In SA, the problem is two-fold.

On the one hand, Parliament has all but delegated its power to enact law to the executive branch by bestowing massive discretionary powers upon ministers, and worse yet, bureaucrats and officials. And on the other hand, the courts have refused to strike down these statutes because the courts are convinced wide discretionary powers are part of a modern democracy. This places the rule of law in a precarious position, as the doctrine requires that discretionary powers be narrowly formulated, and limited to technical implementation of parliamentary law. The rule of law absolutely prohibits nonparliamentary law-making and unfettered discretion.

In the Scaw SA case, the legislation in question — the International Trade Administration Act — provides the minister with the power to prohibit imports and exports of particular goods absolutely, with no real guiding criteria.

In other words, Parliament does not ban goods; it gives the minister, who can be anyone, this essential law-making power, rendering this fertile territory for the exercise of arbitrary discretion. The Constitutional Court should have intervened and found that the act itself violates the rule of law.

Van Staden is a legal researcher at the Free Market Foundation

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