Adjudicating the right to participate in the law-making process : a tribute to retired Chief Justice Ngcobo

• Author: Elizabeth Brundige
• DOI: 10.10520/EJC-10338b7601
• Published date: 01 August 2017
• Date: 01 August 2017
• Record Number: sapr1_v32_n1_2_a3
• Pages: 1-18

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https://doi.org/10.25159/2522-6800/3914

ISSN 2522-6800 (Online) ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 32 | Number 1 and 2 | 2017 | pp.1–18

ARTICLE

Adjudicating the Right to Participate in the Law-making

Process: A Tribute to Retired Chief Justice Ngcobo

Elizabeth Brundige

Associate Clinical Professor of Law, Cornell Law School,

former law clerk to Justice Ngcobo

Email: elizabeth.brundige@cornell.edu

ABSTRACT

This is a personal tribute to retired Chief Justice Ngcobo with a focus on two of his judgments

dealing with the right to participate in the law-making process. It is written from the perspective

of a former clerk reecting on Justice Ngcobo’s interactions with his clerks.

Keywords: right to participate; constitutional democracy; law-making process; eective citizen-

ship; dialogic engagement

Introduction

Justice Ngcobo’s law clerks were tired, but exhilarated too. For several hours, we had been

discussing the legal issues presented by a new case. A central question was whether the

Constitutional Court could consider the validity of the legislative process that led to the

redrawing of provincial boundaries. As a foreign law clerk new to the Court, I struggled

to understand how the Court could address the validity of the legislative process when

it had never been raised by the parties. Indeed, the applicants had conceded that the

resulting legislation was properly adopted. But Justice Ngcobo insisted that this could

not be the end of the story. ‘This case is about the right of people to participate in the

process of making the laws that govern them,’ he explained. ‘Ignoring the constitutional

issue that is so clearly at stake would not be in the interests of justice.’

In his twelve years as a judge of the Constitutional Court, the last two as South Africa’s

fth Chief Justice, Justice Ngcobo made an enormously powerful contribution to the

advancement of justice. A brilliant and courageous judge, he was and is guided in all

things by the constitutional values of equality, freedom and human dignity. He cares

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Brundige Adjudicating the Right to Participate in the Law-making Process

deeply about the nature of South Africa’s constitutional democracy and the role of the

Constitutional Court in interpreting and defending its principles.

It was a tremendous privilege to serve as Justice Ngcobo’s law clerk twelve years ago,

and it is an equally tremendous privilege now to have the opportunity to pay tribute

to the judge in this journal. In this brief piece, I discuss the experience of working

with Justice Ngcobo on two cases that addressed the constitutional obligation of South

Africa’s law-making bodies to facilitate public involvement in the legislative process. I

then highlight a few of the insights that the judge’s judgments in those cases oer into

the ways that international human rights may be given meaning and eect domestically.

I also share some personal reections on Justice Ngcobo and the ways in which my

experience as his law clerk continues to guide my work as a human rights lawyer and

teacher today.

An Opportunity to be Heard

The case that South Africa’s former Chief Justice was reviewing with his law clerks

one summer day in early 2006 was about the validity of the Twelfth Amendment to the

Constitution of South Africa. Adopted in late 2005, that Amendment had altered the

basis for determining the boundaries of South Africa’s provinces. It also changed the

boundary between the provinces of KwaZulu-Natal and the Eastern Cape, which, in

turn, led to the drawing of new municipal boundaries. In the process, Matatiele Local

Municipality was eectively demarcated and transferred from KwaZulu-Natal to the

Eastern Cape province, where it was incorporated into an existing municipality. The

Amendment was met with strong opposition from many members of the Matatiele

community. They identied with KwaZulu-Natal, not the Eastern Cape, and they were

concerned about the Eastern Cape’s poorer record of service delivery in areas ranging

from sanitation to education. The former municipality and a group of businesses,

educators, associations and organisations within its community joined forces to bring a

lawsuit against the national and provincial governments, challenging the validity of the

constitutional amendment.

The hearing, which took place the day before the start of the term, was my rst as a

Constitutional Court law clerk. A chill of excitement went down my back as I proceeded

down to the courtroom with the other clerks, through the airy, exquisitely designed and

art-lled hallways of the new Constitutional Court building and into the lobby next

to the courtroom. There, sunlight danced across silvery leaves perched overhead and

played hide and seek among the tall, slanting mosaic columns. Visitors to the lobby

were welcomed by the dancing light and warm colours, as if entering into a clearing in

the forest where people could discuss and resolve problems together.

‘Justice under a tree’, Justice Albie Sachs had told the new law clerks, explaining how

this traditional African form of dispute resolution had been incorporated into the Court’s