Assessment of Constitutional and Supreme Court Decisions on Society Transformation

1. CONSTITUTIONAL JUSTICE PROJECT (Assessment of the impact of the decisions of Constitutional Court and Supreme Court of Appeal on the transformation of society)PRESENTATION TO THE JUSTICE PORTFOLIO COMMITTEE 5 SEPTEMBER 2014

2. CONTENTS • Background to the Constitutional Justice Project • Objectives of the Project (Terms of Reference) • Relevance to the NDP • Methodology (Themes) • Progress to date • Stakeholder and Community involvement • Timeframes • Anticipated outcomes • Conclusion 2

3. BACKGROUND TO THE PROJECT • What the Project is about • The Constitutional Justice Project is not about reviewing the decisions of the highest courts in the land - doing so would contravene the Constitution • It is about understanding how – • The highest courts, through judgements, interpret and give meaning to the laws and policies of the Legislative and Executive branches of the state – thereby affirming the strength of the power of judicial review and judicial activism • jurisprudence has contributed or contribute to law reform • policies and programmes heed to the decisions of the courts (rule of law) 3

4. BACKGROUND TO THE PROJECT • Who conduct the study, deliverables and timeframes: • An joint venture of the Human Sciences Research Council (HSRC) and University of Fort Hare (UFH) following an open bid process with a view to allowing a competitive bid for this task • Study to take 18 months: • Inception Report on methodology (submitted) • Interim Report (due Sept / Oct 2014) • Final Report (due 31 March 2015) • 3. Independent research by a team of experts appointed by service provider. • 4. Minister to appoint a Reference Group of experts to critique and advise on reports and make recommendations 4

5. OBJECTIVE OF THE PROJECT • 1. To locate our jurisprudence within the developmental state as clearly stated in the NDP in particular, the need for progressive jurisprudence that advances the objects of the Bill of Rights and in particular, socio-economic rights • 2. The assessment of the capacity of the state (national/provincial/local) to implement courts’ decisions • 3. Advance the transformation of the administration of justice with regard to – • (a) Access to justice • (b) Development of common law and customary law • (c) Costs of litigation • 4. The outcome of the research is aimed at developing a Program of Action that will be factored into the MTSF 5

6. Objectives - Terms of Reference • The research focuses on four areas: • 1. Assessment of decisions of highest courts to establish- • the extent to which they contributed to the reform of jurisprudence • the impact of jurisprudence on socio-economic rights and in turn the eradication of inequality and poverty and enhancement of human dignity • to what extend South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution 6

7. Terms of Reference • 2. Conduct a study on the implementation of the decisions of the Concourt and SCA with a view to assess – • progress made and challenges encountered in the implementation of the these decisions • legislation, policies and government programmes that have been put in place to give effect to these decisions • the capacity of the state within the available resources to realise the outcome envisaged by such court decisions 7

8. Terms of reference • 3.Direct access to Concourt – investigate factors that inhibit access to justice in relation to – • the costs of litigation (at the Concourt and SCA) • legislative frameworks, structures and processes that inhibit access • The right of access to the Constitutional Court by indigent and unrepresented persons • 4. Assess the speed with which cases are finalised in the Concourt and SCA in order to identify areas and reasons for delays with regard to legislative frameworks, structures or processes involved in adjudicating civil disputes 8

9. Relevance to the NDP • The Project will contribute to the outcomes of NDP: • Reversing inequality and poverty (Socio-economic rights jurisprudence) • Building a capable state – (identify the capacity gaps needed to implement decisions of the courts for the advancement of the Rule of Law • Strengthen Judicial Governance – through the research it would be possible to identify judiciary-related aspects that require legislative/systems reform • Transforming society and unifying the country – jurisprudence to complement legislation and policy in reducing poverty and inequality 9

10. METHODOLOGY AND THEMES Concept Report / Inception Report identifies 4 research themes: Theme 1:Analysis of CC and SCA decisions • Comprehensive legal analysis of the Concourt and SCA judgment since 1994 • Will look at comparative jurisdiction (SADC, Kenya) Theme 2:Analysis of the implementation of decisions of the CC and SCA • Impact / implementation / effect on lives of people / government’s capacity • Policy implications especially for the poor

11. METHODOLOGY Theme 3:Direct access to Concourt • Analyse instances and regularity of direct access • Comparative perspectives (Brazil, India) Theme 4: Costs of litigation and time taken to finalise cases • Quality of time in finalising cases • Access to justice imperative

12. SOME OF SELECTION OF CASES • 10 CC landmark cases have been selected in the following clusters – • Health • Soobramoney v Minister of Health • Minister of Health v TAC • Education • Department of Education, Free State v Welkom and Harmony High Schools • Juma Musjid Primary School v Essay NO • Housing • Government of RSA v Grootboom • Joe Slovo Community v Thubelisha Homes .....Cont’d 12

13. CONTINUATION • Water and Electricity • Joseph v City of Johannesburg • Mazibuko v City of Johannesburg • Customary Law/Gender/Social Security • Bhe v Khayelitsha Magistrate’s Court • Khosa v Minister of Social Development, Mahlaule v Minister of Social Security .....Cont’d 13

14. PROGRESS TO DATE • February 2014 Colloquium • Imminent persons, including retired judges attended • Some of the scepticism which surfaced during the bidding process were raised and addressed during the colloquium • Report of the colloquium culminated to the Concept / Inception Report • 2. March 2014 Concept / Inception Report: • Methodology and identified the themes • Lists some of the cases that will be analysed • proposes research question • 3. Minister’s inputs on the Concept Report invited before Concept Report may be released (Sept/Oct) 14

15. PROGRESS TO DATE • 3. Mid-term report • Report due in Sept / Oct • Will look into the empirical research • Will also focus on identified persons • 4. Expected outcomes towards final report • Platform for public discourse on the functioning of the courts and jurisprudence (which is usual in respect of legislation, policies and programmes). Final report due March 15 • Accessibility of decisions of the courts 15

16. RECOMMENDATIONS • Portfolio Committee to: • Note the Project and Progress made thereon; and • Comment and guide on any aspect pertaining to the project to ensure quality of outcome 16