Could the courts be doing better regarding their role of advancing justice, particularly, social justice, through administrative law?
This was one the key questions Prof Thuli Madonsela, the Chair in Social Justice at Stellenbosch University (SU), tried to answer in her inaugural lecture in the Adam Small Theatre Auditorium on Monday (11 November). The title of her address was Judicial review through a social justice lens.
Madonsela said the courts have acquitted themselves admirably as the ultimate guardians of the Constitution and of society, at times clutching the country from the brink of catastrophe.
“This has been particularly the case when people have used the Constitution as a sword to advance human rights, particularly social and economic rights such as the right to education, the right to housing and security of tenure for farm and other tenants as well as informal settlement dwellers."
Madonsela said the courts have a crucial role to play in helping to fix current injustices, because “social injustice is a great threat to democracy, the rule of law, social cohesion and ultimately peace.
“It is also my view that ending injustice, particularly social injustice, cannot be accomplished by the Executive and Legislative arms of government alone. It is everyone's business including the courts.
“The courts' contribution in this regard can only be through jurisprudence and to make the right impact. Jurisprudence that is consonant with the vision and ethos of the constitution must permeate the entire court system, from small Claims Courts to the Constitutional Court."
Highlighting some of the judiciary's shortcomings, Madonsela said the jurisprudence is not consistent and at times indifferent to the circumstances of ordinary people with the impact of reinforcing social and economic disparities.
“The gravitation towards rationality as the touchstone, with much fluidity on interpretation seems to pose a danger to administrative law review's contribution to the advancement of constitutional imperatives regarding social justice."
Madonsela proposed that judicial review should, among others, foster human dignity underpinned by the value of Ubuntu, while also balancing the interests of individuals and societal interest based on shared humanity and equality of entitlements regarding human rights.
Going forward, Madonsela said we should try to establish an administrative court and an electronic resource system for administrative court judges. She added that ordinary South Africans should also be educated about “administrative justice, its implications for them and how to leverage social and other forms of accountability to employ administrative justice to make democracy work for them and all."
- Photo: Prof Thuli Madonsela delivers her inaugural lecture. Photographer: Anton Jordaan