Filling the accountability vacuum: Judicial activism and restraint in cases concerning state capture, corruption and egregious public maladministration in South Africa

Abstract

In the past two decades, state capture, rampant corruption and egregious public maladministration have had innumerable detrimental effects on the lives of South Africans. These abuses of public power went largely unchecked by accountability mechanisms in the executive and legislative branches of government, causing an ‘accountability vacuum’. This thesis argues that in light of the failure of members of the political branches of government to take decisive action to hold to account perpetrators of state capture, corruption and public maladministration, the judiciary was called upon (by opposition parties, civil society organisations, and even private individuals) to exact accountability from political actors and curb the deleterious impacts of their actions to the extent allowed by the law. In doing so, the courts – being aware of the broader political context and potential implications of their decisions – embraced judicial activism by employing creative interpretations of the law and making use of their wide remedial powers to hold recalcitrant officials to account. At the same time, the courts exercised restraint to ensure that their decisions did not trench upon the separation of powers between the judiciary and the elected branches of government. This concern was motivated not only by deference towards the constitutional limitations on the courts’ powers, but also by the judiciary’s need to protect its institutional security from attempts by those holding political office to undermine its authority. The basis for this argument is set out by firstly defining key concepts such as state capture, corruption and public maladministration, and describing theoretical concepts such as legal realism, transformative constitutionalism and the separation of powers. These concepts provide a framework to understand the factors promoting judicial activism as well as those cautioning the need for restraint. Evidence to support the central claim is drawn from relevant court decisions separated into three broad categories: first, the courts’ responses to attempts to impede the proper functioning of criminal justice institutions; secondly, the Constitutional Court’s decisions in the AllPay and Black Sash Trust line of cases that held officials to account for malfeasance in public procurement decisions; and finally, the Constitutional Court’s approach to cases that brought the remedial powers of a key watchdog institution, the Public Protector, into sharp focus. The thesis concludes that the courts have, in general, successfully navigated the competing tensions of activism and restraint. This has allowed them to guard against some of the most egregious abuses of public power, though the need for them to use their powers judiciously has iv meant that litigation is not a silver bullet for resolving failures of accountability in the elected branches of government.