Justice Sandile Ngcobo and the judicial reinforcement of intergovernmental relations in South Africa

• Author: Nomthandazo Ntlama,Maropeng Mpya
• DOI: 10.25159/2522-6800/3574
• Published date: 01 August 2017
• Date: 01 August 2017
• Pages: 1-20

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https://doi.org/10.25159/2522-6800/3574

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

© Unisa Press 2017

Southern Afr ican Public Law

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

Volume 32 | Number 1 and 2 | 2017 | pp.1–20

ARTICLE

Justice Sandile Ngcobo and the Judicial Reinforcement

of Intergovernmental Relations in South Africa

Maropeng Mpya

Lecturer, School of Law, University of KwaZulu-Natal

Email: Mpya@ukzn.ac.za

Nomthandazo Ntlama

Professor of Public Law and Head of Research, Nelson R. Mandela School of Law,

University of Fort Hare

Email: nntlama@ufh.ac.za

ABSTRACT

The importance of co-operative governance is strengthened by the authority vested in

the judiciary—to ensure the judicial review of any conduct, rule or law that runs contrary

to the prescripts of the envisaged collaborative relations. Of particular signicance is the

establishment of the Constitutional Court, where retired Chief Justice Ngcobo distinguished

himself as an independent thinker, within the limitations of judicial authority, in advancing

the principles of co-operative governance. His rich intellect demonstrates an alternative way

of arriving at the constitutionalised South African jurisprudence that has spanned twenty-

two years of democracy in regulating public authority. This article reviews and provides an

account of Justice Ngcobo’s selected case law in the judicial enforcement of the principles

of co-operative governance. The objective is to give impetus to the advancement of an

unwavering commitment and a well thought-out, futuristic and progressive outlook on the

evolution of South African jurisprudence. These were motivated by a zeal to establish his

deep-rooted philosophy that informed his thoughts in judicial reasoning. The motivation

raises a question that is intended to help determine whether his contribution has shifted the

culture of dictatorship of the pre-democratic dispensation to the armation of the principles

of constitutional supremacy in a way that bets the general populace aected by the dierent

spheres of government.

Keywords: co-operative government; constitutionalism; democracy; legislative competence;

foundational values

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Mpya and Ntlama Judicial Reinforcement of Intergovernmental Relations

Introduction

This article reviews and provides an account of Justice Sandile Ngcobo’s selected

judgments that exemplify his approach to the evolution of the judicial enforcement of

the principles of co-operative governance in South Africa. The cases included in this

article are limited to Executive Council, Western Cape v Minister, Provincial Aairs

and Constitutional Development & Another; Executive Council, KwaZulu-Natal v

President of the Republic of South Africa & Others1 and DVB Behuising (Pty) Limited

v The North West Provincial Government & Others.2 The objective is to give impetus

to the advancement of an unwavering commitment and progressive outlook on the

evolution of South African jurisprudence. This is motivated by the necessity to exalt

Justice Ngcobo’s deep-rooted philosophy that informed his judicial reasoning—in order

to determine the impact of his contribution to the evolution of the principles of co-

operative governance in a way that bets the general populace aected by the dierent

spheres of government. In essence, Justice Ngcobo’s approach promotes mutual respect

and integrity in constitutional adjudication in promoting the principles of co-operative

governance.

The article begins by providing a conceptual analysis of the principles of co-operative

governance in the regulation of public authority. This is followed by background on

the selected cases, which provide a foundation for the assessment of his approach in

his judicial reasoning. The article concludes by highlighting Justice Ngcobo’s judicial

identity regarding the indispensable contribution he has made to the jurisprudence that

has shaped the future of South Africa, as envisaged in the country’s transformative

Constitution.3

South African Perspective on Co-operative Governance

Interjection of history into the modern system of co-operative

governance

The importance of co-operative governance is traceable to the existence of humankind,

which has spanned more than 100 000 years and where the system relied heavily on

the co-operation of most, if not all, of the persons and institutions under a specic

1 1999 (12) BCLR 1360 (CC).

2 2000 (4) BCLR 347 (CC).

3 Dikgang Moseneke, ‘Reections on the South African Constitutional Democracy – Transition and

Transformation’ (Mistra – TMALI – UNISA Conference: 20 Years of South African Democracy: So

where to now? 12 November 2014) <https://constitutionallyspeaking.co.za/dcj-moseneke-reections-

on-south-african-constitutional-democracy-transition-and-transformation/> accessed 17 November

2017. Moseneke (former Deputy Chief Justice of the South African Constitutional Court) emphasised

the transformative nature of the Constitution.