Whenever our courts find flaws in the laws that come before them, they are fearless in declaring provisions of those laws unconstitutional.
Bad law impoverishes justice and poorly drafted laws beggar justice, which is what our courts from the local level up to the Supreme Court of Appeal and, at the best of times, the Constitutional Court have been saying (“Legislature faces a litmus test”, June 8).
Whenever our courts find flaws in the laws that come before them, they are fearless in declaring provisions of those laws unconstitutional and referring them back to the drawing board. Yet, instead of recognising the problem at source, the government seeks to politicise its response, using clichés such as “counter-revolutionary”, then threatening the judiciary with the spurious charge that it still carries the discredited baggage of apartheid jurisprudence.
As a lawyer working at the coal face of commercial law, I can say that one of the worst laws ever drafted by this government is the National Credit Act.
A clear example of its inadequacy lies in the judgment of the Constitutional Court in the case of Sabelo and Another vs Standard Bank of South Africa Ltd and Another, handed down on June 7 2012. When the drafters could not clarify what constituted “delivery” of a notice to debtors, in legislation stitched together in haste to become law in 2007, it took the highest court in the land to do so.
Clearly there is a lack of drafting skills in the government, coupled with an absence of research capacity, which is resulting in more injustice and greater retardation of the constitutional enterprise.
Instead of politicising the problem, the government should help to solve it. We still boast brilliant consitutional minds in this country, people who can advance the constitutional protections that every South African deserves, free from political threat or interference. – Saber Ahned Jazbhay, attorney