Four months before its policy conference, the ANC has made it clear that it intends to push for a radical transformation of the judiciary.
Just four months before its policy conference, the ANC is making it clear that it intends to push for a radical transformation of the judiciary. President Jacob Zuma this week reignited the controversy over his attitude to the constitutionally enshrined power of courts to review executive decisions, telling The Star “we don’t want to review the Constitutional Court, we want to review its powers”. He added that judges were not “special people” and said that split and dissenting judgments undermined the court’s authority.
The government and Zuma himself have since attempted to back-pedal on these remarks saying they had to be understood in their proper context.
But amid the mixed messages, it is clear that the ANC plans to go beyond its existing policy positions that the Constitutional Court be affirmed as the apex of the legal system and that the demographic transformation of the Bench must be quicker.
The party’s national executive committee is due to release a discussion document on the transformation of the judiciary before the end of the month and it is understood that issues about the powers of the court and radical policy changes will feature strongly.
There are strong indications of what it may say.
ANC Cabinet members irked by cases against their boss
Zuma and many ANC leaders in the Cabinet have been angered by high-profile cases that have ruled against the ANC and its president in the last few years. These include a court challenge that resulted in a ruling that Zuma’s extension of the term of former chief justice Sandile Ngcobo was based on a law that was unconstitutional and, in December last year, the Supreme Court of Appeal ruled that Zuma’s appointment of Menzi Simelane as director of public prosecutions was invalid and inconsistent with the Constitution if read in conjunction with the National Prosecuting Authority Act.
A senior ANC leader told the Mail & Guardian that the opposition parties were holding the government to ransom by using the Constitutional Court to fight ANC policies.
“Lindiwe Mazibuko, speaking on the Protection of State Information Bill, said the DA [Democratic Alliance] has mustered a sufficient majority in Parliament for the Bill to be referred to the Constitutional Court. The ANC, therefore, cannot pass the law. Mind you, it is not the only law. We really cannot govern,” she said.
“We need to transform the judiciary. We should remember that these courts have been used as an instrument of oppression from the appointment of judges and prosecutors and so on.”
ANC chief whip, Mathole Motshekga, has been among those mopping up in the wake of Zuma’s remarks. He told an M&G critical thinking forum debate on Wednesday that Zuma’s pronouncement should be seen in the context of a debate that was already going on. “His statement was informed by not only what the society is raising. Zuma correctly said when he raised this matter that it is a societal matter. It’s not just something that he woke up and had dreamt about,” said Motshekga.
He said that Parliament’s constitutional review committee, during its normal course of business, could consider such a debate. “The president said there must be a review of the judiciary, but it won’t be by the ANC or the government,” Motshekga said.
But he echoed Zuma’s most controversial remarks, saying “people start to question that the government governs at the pleasure of the judiciary”.
Changing that needn’t mean a return to parliamentary “absolutism”, he said and added that Zuma fought against that kind of system in the apartheid era and “knows how dangerous it is”.
Ramatlhodi a staunch supporter of limiting the court’s powers
Ngoako Ramatlhodi, deputy minister of correctional services and a former chairperson of both Parliament’s justice committee and the Judicial Service Commission, has been a key proponent of limiting the court’s powers and is said to have outlined his position at the ANC’s national executive committee meeting two weeks ago.
Writing in The Times last year, Ramatlhodi lambasted the judiciary for undermining the executive.
“In the 17 years, we have witnessed sustained and relentless efforts to immigrate the little power left with the executive and the legislature to civil society and the judiciary,” he said.
“The objective of protecting white economic interests, having been achieved with the adoption of the new Constitution, a grand and total strategy to entrench it for all times, was rolled out. In this regard, power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party.”
However, the Black Lawyers’ Association, which strongly advocates demographic transformation, warned on Thursday against reviewing the powers of the Constitutional Court, saying that the executive and the legislature would require the agreement of the court itself to make such fundamental constitutional changes.
“The only way, if that is the route to go, is to divorce the current constitutional democracy and remarry the parliamentary sovereignty,” Busani Mabunda, its president said.
“This Cabinet’s decision, in particular the row surrounding the contemplated review of the Constitutional Court’s powers, seems to lack appreciation of the basic tenets underlying the doctrine of separation of powers.”
Addressing Parliament on Thursday, Zuma said the decision to review the court’s powers fell within the mandate of the legislature to formulate and review policies of the government.
“Mathole Motshekga reminded us that constitutions the world over are dynamic and subject to review. In terms of Section 45 (1) (c) of our Constitution, the Constitution must be reviewed annually by Parliament. And that is why there is a constitution review committee in Parliament. We are actually within our mandate. Therefore the review is not foreign to what our Constitution dictates. If you’ve forgotten the Constitution, visit it. Go and read,” said Zuma.
The less controversial discussion about the formation of an apex court was held in Parliament on Tuesday last week by the portfolio committee on justice and constitutional development during a debate about the Constitution Seventh Amendment Bill and the Superior Courts Bill.
During the debate, the DA’s Dene Smuts said that the problem with South Africa was that it had inherited two apex courts for political and not legal reasons.
According to the minutes of the meeting, Smuts said: “Doing away with the Supreme Court of Appeal is not an option as this is a court of appeal. The Constitutional Court is the heartbeat of South African law and political matters. The question for the committee is, should the false distinction between ‘other law’ and ‘constitutional law’ continue, or is it possible to remove this? It is possible to have judges of the proposed apex court [to] sit in chambers and focus on either constitutional law or other law,” said Smuts.
“The new apex court should take cases that are of significant public importance in the interests of developing the law. The current Constitutional Court judges have been appointed under its requirements and, once an apex court is established, one will need judges with real skill that will be able to interpret and expand on the concept of ‘in the interests of justice’.”
The committee failed to decide on the matter and said it would consult judges of the appeal and Constitutional courts before deciding.
Controversy ‘has not compromised court judgments and direction’
According to legal experts, the Constitutional Court has become neither more conservative under Chief Justice Mogoeng Mogoeng nor “anti-transformation”—an accusation levelled against it by senior ANC leaders.
Professor David Bilchitz, director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, said that although Mogoeng’s appointment might have been controversial, there was no evidence to suggest any weakening of the court’s independence and integrity.
“It is hard to detect any trend from conservative to liberal in the judgments of the court overall. In fact, a lot of the judges have steadfastly resisted easy labelling in terms of the results they have reached,” said Bilchitz.
“In my view this is a positive development in South African law and indicates a high level of independence and integrity on the part of our judges, who remain open to deciding cases in relation to their circumstances and context.”
South Africa’s democratic system allows the court to review decisions made by Parliament, the government’s legislative arm.
But in the past, Zuma and other senior members of the ANC have sharply criticised rulings made by the court and the judiciary at large when decisions made and laws passed by Parliament have been overturned.
Zuma said this week that he would review the powers of the Constitutional Court to balance the legislative, judicial and executive powers of the government.
Pierre de Vos, a constitutional law expert at the University of Cape Town, said an honest appraisal of the court and the way its powers were executed would reveal that it was “very broad minded” and “pro-transformation”.
“There is nothing wrong with debating the powers of the Concourt along with its judges and their rulings, but you will find that the Concourt is already progressive and in the throes of pushing an agenda of transformation,” he said.
In November last year, the Cabinet announced plans for the formation of an independent body to assess the court’s judgments to “enhance synergy and constructive engagement” among the three spheres of government.
Warren Freedman, associate professor at the University of KwaZulu-Natal’s School of Law, said any change to the powers of the court would lead to a fundamental change in South Africa’s democracy.
“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.”
Freedman also dismissed Zuma’s assertion that split decisions in the court’s judgments were 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.
Professor Loot Pretorius, of the University of the Free State’s department of constitutional law, said any change to the court’s powers would be akin to “changing the nature of the game”.
“Our current system has been proved to be the best in not only holding the executive to account, but balancing the powers of state.”
Pretorius also called on Zuma to “extrapolate on what he actually means”, as his utterances had been “very cryptic”.—Nickolaus Bauer