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'ConCourt changes not in line with SA democracy'

Nickolaus Bauer

Legal experts have warned that tampering with the powers of the Constitutional Court equates to a fundamental change in South Africa's democracy.

Any changes to the powers of the Constitutional Court’s powers would signify a fundamental change in South Africa’s democracy and how it operates.

This is the sobering view of legal experts in the wake of recent comments made by President Jacob Zuma, saying the powers of the Concourt need to be reviewed.

In an interview with the Star, Zuma said he intends looking into the powers of the Concourt in order to balance the legislative, judicial and executive powers of government.

“We don’t want to review the Constitutional Court; we want to review its powers. It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with,” Zuma said.

Zuma also added that often dissenting judgments have “more logic than the one that enjoyed the majority”.

Warren Freedman, associate professor at the University of Kwazulu-Natal’s School of Law said although various democracies around the globe operate within a system allowing a nation’s highest judicial power to be reviewed, this is in direct opposition to how South Africa’s democratic system operates.

“This is how our democracy was founded in 1994 and how we have been operating since we adopted the new Constitution in 1996. Any changes to that would signify a radical change in the way our constitutional democracy works,” he told the Mail & Guardian.

This view was echoed by professor Loot Pretorius of the University of the Free State’s department of constitutional law, who feels any adjustment of the Concourt’s powers “changes the nature of the game”.

“The status of the Constitution and the Concourt is immediately changed once the powers enshrined within those institutions are themselves changed,” said Pretorius.

South Africa’s democracy operates within a system allowing the Concourt to review decisions made by Parliament—government’s legislative arm.

However, Zuma along with senior leaders inside the ruling ANC have in the past sharply criticised rulings by the Concourt and the judiciary at large, which discount decisions and laws passed through Parliament.

In November last year, Cabinet announced plans for the formation of a body to “assess” the Concourt’s judgments in order to “enhance synergy and constructive engagement” between the three spheres of government.

At the time, Cabinet spokesperson Jimmy Manyi said this was to ensure the judiciary meets “common transformative goals geared to benefit society at large”.

Call for clarity
Pretorius also called for Zuma to “extrapolate on what he actually means” as his utterances have been “very cryptic”.

“If our president really has a problem with an institution like the Concourt, which can second guess what government is doing, then he must tell his people. Furthermore he must explain why and what he seeks to do about it,” Pretorius said.

Freedman goes onto dismiss Zuma’s assertion that split decisions within the Concourt are a problem.

“There are very broad definitions and laws enshrined within our Constitution, which are based on values of a social, political and ideological nature. This automatically leads to decisions by judges being made from various perspectives,” Freedman said.

Presidential spokesperson Mac Maharaj dismissed the view that Zuma aims to change South Africa’s democratic system, saying that such assertions stifle necessary debate.

“As long as any assessment of the judiciary is done within the permissible limits, it is a healthy exercise. To simply create this fear of the president wanting to change our democracy is an attempt to shut down debate,” he told the M&G.

However, the ANC is of the view that South Africa’s democracy and policies governing it need to be “fine-tuned from time to time” in order to “best serve our citizens”.

ANC spokesperson Keith Khoza said: “Debates around the powers of state bodies are to ensure that each arm of government knows its role. As such, there is nothing wrong with examining their effectiveness.”

But, Khoza added that any changes would be made within the current democratic structure of the country.

“This is not about watering down the separation of powers but strengthening them,” he said.


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