South African judges are repeatedly abusing their authority to interpret the Bill of Rights that cannot be reasonably based on the meaning of the words as intended by the writers of the Constitution, to push their own personal political views.
We argue that the following are examples of South African judicial activism:
- So-called ‘Same-sex marriage’ 2005 (Judge Albie Sachs)
- Euthanasia and assisted suicide 2015 (Judge Hans Fabricius) overturned by the Supreme Court of Appeal in December 2016. The Walter Harck case 2019 is another attempt at this.
- Outlawing parental spanking (Judge Raylene Keightly). On appeal (as at May 2019).
- Dagga in private decriminalisation (Western Cape High Court Judge Dennis Davis, Constitutional Court Judge Raymond Zondo);
- Religion in schools (Judge vd Linde).
International examples of judicial activism include:
- Roe v Wade (USA) legalising abortion on demand
- Engel v Vitale (USA) outlawing prayer in schools (1962) and Abington School District v. Schempp (1963) outlawing Bible reading in schools
- Carter (Canada) legalising euthanasia
Why judicial activism is unethical and unconstitutional
- The constitution gives the Legislature the responsibility to make law and not the judiciary. The judiciary may only make law to overturn laws in clear contradiction to the intent of the Bill of Rights (e.g. racist apartheid legacy laws) or to develop minor details in the common law.
- Judicial activism undermines democracy and the rule of law and threatens all virtues and freedoms in our law on every other issue.
- Parliamentary hearings allow everyone the right to have their say. The courts are open only to those who have substantial money to hire lawyers to speak for them.
- Judicial activism is fueled by speculative lawsuits challenging our laws, often funded by foreign billionaires and governments and aided with pro-bono time of major law firms. This takes democracy away from South Africans.
- Some organs of State such as the South African Human Rights Commission and the Gender Equality Commission have been hijacked by activists who then use them for judicial activism.
Judicial Activism cannot be remedied either by appeal or by the Judicial Service Commission because of the erosion of judicial ethics – in that increasingly senior judges and lawyers view judicial activism as acceptable practice provided that it benefits their personal political viewpoint. Lawyers tend to place higher priority on personal autonomy and lower priority on religious freedom and Christian virtues than the broader public. Judicial activism therefore needs to be remedied through public protest against such decisions and judges and selecting judges who hold to a ‘strict constructionist’ interpretation of the Constitution.