Boundaries and Borders: How far is too Far?

South Africa has one of the world’s most generous Bills of Rights including socio-economic rights that are either immediately enforceable or subject to progressive realisation. Section 172 of the Constitution requires a court, when adjudicating matters of constitutional rights, to declare conduct inconsistent with the Constitution to be invalid to the extent of its inconsistency and to make any order that is just and equitable.  Broad those these powers are, they fall to be exercised in a context where the Constitution also recognises and was based upon the separation of powers. The Constitutional Court recognises that this imposes limits on judicial authority, but has not articulated principles to guide courts in not trespassing beyond their authority.

The exercise of judicial power has taken place against a background of an increasingly dysfunctional public administration and the findings of the Zondo Commission of extensive corruption in the public administration. Parties, usually with the assistance of Non-Governmental Organisations (NGOs) resort to the courts to resolve these issues and seek to enforce the rights promised by the Constitution. The NGOs in turn seek to exploit strategic litigation to achieve their broader policy goals. The interplay of these forces has compelled South African courts to devise increasingly complex remedies for breaches of constitutional rights involving judicial supervision and oversight. Their doing so spotlights the question of borders and boundaries and whether in pursuit of just and equitable remedies courts are trespassing in territory that properly belongs to other arms of government.  and, in doing so, venturing into fields where they are ill-equipped to operate. This talk will explore this phenomenon, which is not confined to South Africa, and attempt to identify principles that will enable the boundaries to be drawn in a more readily identifiable manner. 

Speaker: Justice Malcolm Wallis, IALS Inns of Court Fellow.

Bio: Malcolm Wallis, SC, B Com, LL B, Ph D, formerly a judge of the Supreme Court of Appeal (SCA) in South Africa, is at present the Inns of Court Commonwealth Judges Fellow at the Institute for Advanced Legal Studies at the University of London. After graduating with an LLB from the University of Natal he was an advocate (1973); Senior Counsel (1985); Chair, General Council of the Bar of South Africa (1994-1997); Co-chair with Frank Clarke SC (subsequently Chief Justice of Ireland), of the Barristers’ Forum of the International Bar Association (IBA) (1998-2002); and held numerous offices in IBA (1998 to 2008). He is an honorary member of the Australian Bar and an Honorary Bencher of the Honourable Society of Kings’ Inns, Dublin. Since his retirement from active service as a judge he has acted as an arbitrator and adjudicator in a number of disputes. He introduced advocacy training in South Africa in 1996, is an active trainer in SA and has trained advocacy internationally in the UK, Singapore and Malaysia as well as training international arbitration in Vietnam. 

As an advocate he appeared in many leading cases in a number of areas of law in the Constitutional Court and Supreme Court of Appeal, was a member of the Rules Board and sat on commissions of enquiry. His publications include books on labour (1992) and maritime law (2011); the volume on ‘Courts’ for LAWSA and numerous journal articles. He has spoken at many conferences domestically and internationally. Appointed a Judge in the High Court (2009); Labour and Competition Appeal Courts (2010); Supreme Court of Appeal (2011-2022) and Constitutional Court (acting, 2015). Authored over 200 reported judgments. Honorary professor (UKZN) since 2011; Professor Extraordinary (UFS, 2014-7); Visitor Law Faculty, Cambridge University (Jesus College, 2013); and visitor to Bonavero Institute of Human Rights and visiting fellow at Mansfield College and Robert S Campbell Visiting Fellow at Magdalen College, Oxford (2017).

Chair: Professor Carl Stychin, Director of the Institute of Advanced Legal Studies (IALS) and Professor of Law.

This event is free to attend, but booking is required.