This critique addresses a narrow point emanating from a discussion of judicial activism as compared to that of judicial restraint. In an article published in the Business Day, authored by Sibonile Khoza and Sibonelo Ndlovu entitled "Making a case for judicial activism in SA's courts" ("Business Day Article") and dated 20 January 2009, the concept of activist judicial decision-making versus judicial restraint is unpacked. It is not the unpacking against which I offer my criticism, but rather the aptness of the backdrop against which the authors give content to their comparison.

In general, I argue that the recent decisions of Chris Nicholson in the matter involving ANC President Jacob Zuma ("Zuma Decision") and the decision on appeal to the SCA that overturned it ("Appeal Decision"), do not accurately, if at all, serve to demonstrate the distinction between judicial activism and judicial restraint.

In particular, I shall respond to the three propositions that have impelled me to proffer opposing views.
1 The first is the suggestion that the Zuma Decision appeared "to favour judicial activism" while the Appeal Decision supported "judicial restraint or minimalism".
2 The second is the interpretation of the Appeal Decision as holding that Nicholson's judgment amounted to judicial activism. The Business Day Article arrives at this conclusion by equating the SCA's view that, inter alia, the Zuma Decision focused on unnecessary matters and created new factual issues, with judicial activism.
3 The last proposition is that the Appeal Decision outrightly rejected judicial activism as an adjudicative technique indispensible to our transformative project.

If our constitutional scheme provides any modicum of reference, it must follow that these propositions, taken together, are untenable.

Indeed the concept of judicial activism connotes a philosophy in terms of which judicial precedent does not constrain judges in the performance of their constitutionally mandated functions. And judicial restraint is the antithesis of this concept - judges who associate themselves with this philosophy abide by stare decisis, unless manifestly at odds with principles of justice and fairness.

Judicial activism and judicial restraint are thus doctrines that apply within the limited framework of that which is before any court. An activist court may, on the evidence before it, be more inclined to overturn laws as unconstitutional or overturn judicial precedent, while a judicially restrained court may be loathe to do so unless gross injustice may follow upon its failure to do so. However, where a court elects to assume an activist role, it must fulfill that role within the defined boundaries of the facts presented to it.

The Business Day Article itself supports this contention by referring to the post-1994 judgments on gay rights, on housing and on health as examples of judicial activism. There is no indication, for example in the Constitutional Court's judgment in Grootboom that the Court decided the appeal on any evidence that was not placed before it. In the 2002 TAC case and the 2004 Lesbian and Gay Equality Project/Fourie case, the Constitutional Court dismissed applications to adduce further evidence and confined its judgment to the facts before it. Despite this, the judgments are considered to be symbolic of the Court's activist role in the furthering of its constitutional vision.

In this light, I respond to the three propositions as follows:
4 The fact that the Zuma Decision involved itself with issues not before the court cannot be regarded as an illuminating example of judicial activism.
5 That, by chastising Judge Nicholson for neglecting to confine his decision to issues before the court, the SCA did not hold that his judgment amounted to judicial activism. It does not follow that, because the SCA commented on the Zuma Decision's focus on unnecessary matters, it held the view that the Zuma Decision was too activist.
6 By requiring Judge Nicholson to confine himself to the facts before him, the SCA neither pronounced upon preferred techniques of adjudication nor expressed any view on activist versus restrained philosophies of judicial decision-making. Rather the SCA reiterated those adjudicative norms that offer respect to principles of separation of powers fundamental to our constitutional arrangement and that protect the integrity of the courts and its processes.

These reasons fortify my disagreement with the Business Day Article and in particular, the contextual framework within which it distinguishes between the opposing concepts. The conclusion to be drawn is that a failure to meet adjudicative standards should not inspire thoughts of activism.

Lerisha Naidu, Candidate Attorney