Lawfare: How to approach it in South Africa's constitutional democracy

Abstract

This article reviews the so-called lawfare that the courts, political parties and non-state actors have increasingly adopted since the presidency of Jacob Zuma as an approach to seeking legal remedies or corrective action for governance failures and in cases of perceived unfairness of judicial processes. The concept of lawfare is placed in the context of South Africa’s constitutional democracy, which establishes the Constitution of the Republic of South Africa, 1996, as the supreme law and allows in principle for judicial review of legislation and executive action that contravene the basic principles and values of the Constitution. A positive constitutional understanding of lawfare is identified as the judicialisation of politics as a corrective to failures of appropriate oversight of governance as envisioned in the constitutional scheme. In such cases, judicial understanding is that judges should justify their decisions in terms of the transformative ideas, values and socioeconomic goals of the Constitution to correct such failures. This is argued to be a positive and understandable consequence of South Africa’s constitutional order and the place of judicial review within it. The positive understanding of lawfare is distinguished from the negative conception of lawfare popular in South African discourse, where it means an unnecessary use of the courts to resolve issues that are constitutionally intended to be resolved by non-judicial (i.e. political) measures. In the popular understanding, the latter is most often understood to mean the so-called Stalingrad tactic, whereby public officials abuse their access to the courts and/or to public funding to engage in extensive litigation when charged with various forms of malfeasance or incompetence, which is perceived to be an effort to evade legal accountability. Negative lawfare can be destructive in a constitutional democracy, and three remedies to abuses of the courts through the Stalingrad tactic are identified: rethinking South Africa’s adversarial system to accommodate some of the advantages of the inquisitorial system; more effective measures within the legal profession to hold legal professionals accountable for abuses of the courts; and imposing more consequential costs orders on public officials and legal professionals who abuse court processes.