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Radebe stumbles on why ConCourt review is needed

Andisiwe Makinana

Justice Minister Jeff Radebe has been unable to explain the specific challenges to South Africans that necessitate a new assessment of the judiciary.

Justice Minister Jeff Radebe has been unable to explain the specific challenges to the lives of ordinary South Africans that require a new assessment of the judicial system.

Announcing a new study of the impact of Constitutional Court rulings, Justice and Constitutional Development Minister Jeff Radebe has been unable to adequately explain what challenges to the lives of ordinary South Africans have necessitated a new assessment of the judicial system.

In recent months senior ANC leaders, including President Jacob Zuma, have been critical of the judiciary, particularly the Constitutional Court.

But speaking to journalists in Parliament on Tuesday, Radebe was at pains to fend off questions which suggested that the independence of the judiciary was under threat; that the powers of the Constitutional Court would be reduced; or that the government was fighting back following a string of rulings against the executive arm of the state.

Rather, Radebe said, the government would commission a study on how Constitutional Court rulings have impacted on the lives of ordinary South Africans.

Challenges and hurdles
He said despite the significant strides made in the 17 years of democracy in realising the values in the Constitution, there were still challenges and hurdles that confront the state in its endeavour to transform society.

He said the study, which would include an assessment of the decisions of the Constitutional Court, would result in clear and concise recommendations for how the judiciary might better address “challenges” that have the potential to undermine the transformation goals that are intended to nourish our constitutional democracy.

Asked what these challenges were, he responded: “The challenges are the general challenges that all South Africans are yearning for: the creation of this better life, employment of our people, eradication of poverty and (sorting out) all the ills that we have inherited from the apartheid system”.

He added that, if anything, the Zuma administration was keen on increasing the powers of the Constitutional Court.

“On the powers of the Constitutional Court, we have put before Parliament a Constitution 17th Amendment Bill and an accompanying superior courts Bill, which goes even to the heart of the powers of the Constitutional Court.

Apex court
“As we speak, the Constitutional Court is the final arbiter on all constitutional matters, the other matters are being handled by the Supreme Court of Appeals. What the Constitution 17th Amendment Bill and the accompanying Bill seek to achieve is to create the Constitutional Court as an apex court on all matters, that is in fact the review of the powers of the Constitutional Court in essence.”

Radebe argued that if the Constitutional Court became the apex court, then the court would be getting more powers.

The company or institution that will conduct the assessment has yet to be appointed, just as the terms of reference for the investigation have yet to be determined.

The issue of dissenting judgments would be part of the terms of reference, he said. This matter raised by President Jacob Zuma in an interview with Independent Newspapers earlier this month, where he was reported to have questioned how some decisions were reached in the Constitutional Court, saying: “How can you say [the] judgment is correct when judges have different views? ... You will find that the dissenting one has more logic than the one that enjoyed the majority. What do you do in that case?”

Radebe said: “I think it’s accepted worldwide amongst the judiciary that when judges dissent, they write their opinions as to why they are not in agreement with the majority judgment, and I think that goes to the heart of the importance of judges to be subject to the Constitution and to be partial.”

Respect for the courts
He explained at great length how the ANC government respected the courts, saying its response to judgments has been respectful and has helped to reinforce the legitimacy of the courts and thereby enhance public confidence in the judicial system.

“As a direct response to and within the context of its overall constitutional mandate, the government has initiated and promoted laws to give effect to the judgments of the courts.”

He cited the Police Amendment Act, which aims to address concerns raised by the court in the case of Hugh Glenister and the president of the Republic of South Africa, in which the Directorate of Priority Crime Investigations, commonly known as the Hawks, was ruled “insufficiently independent” and “vulnerable to an undue measure of political influence”, as one recent example.

But Radebe added that the criticism of the decisions of the courts especially where such decisions are against government are usually met with outrage by some commentators and “those who purport to act in defence of our Constitution”.

But he said that in a constitutional democracy such criticism of the court’s decisions was both permissible and desirable.


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