The Mail & Guardian spoke to Justice and Constitutional Development Minister Jeff Radebe about the discussion documents on the transformation.
What is your understanding of judicial activism and do you approve of it?
Our Constitution has a framework within which each of the spheres can exercise [power]. My understanding is that judges are obliged to act as judicial activists where there is no constitutional democracy. In other countries, for example, the Grootboom [ruling which created jurisprudence on socioeconomic grounds] would be regarded as judicial activism, while it is something that it is provided for in our Constitution. But our judiciary can express itself to say other arms of state have to comply in enforcing socioeconomic rights.
Your discussion documents refer to a conversation that must happen between the judiciary, the legislature and the executive. Why must judges be forced into the conversation? Why can they not be allowed to get on with their work?
No one is being forced into a conversation. There has to be interÂdependence and co-operation of the three arms. The judiciary itself convened the “Access to Justice” conference last year and invited the other two arms of state. The speaker of Parliament and the president were also invited.
The document makes reference to the ‘fluid’ nature of judicial independence, saying it must evolve. Is there not a universal understanding of the concept?
It was former Constitutional Court Judge Albie Sachs who was raising the issue and saying you never find a rulebook that says “separation of powers means this”. So we have to discuss it. It is the judges themselves who are saying it. They are the ones saying that no power is absolute. The point being made is that separation of powers is not like a tunnel where you can’t look left or right. There has to be co-operation for national goals to be reached to create a democratic, nonracial and nonsexist country.
Have you thought about how judges balance the need to interpret the Bill of Rights in the Constitution but not stray into legislative interference?
Many judgments of the Consti-tutional Court indicate the progressive interpretation of our Constitution, like the Grootboom [case] and the Treatment Action Campaign’s case on the provision of antiretrovirals. They provide direction on these matters.
But ANC leaders pointed to the judgments as examples of judicial interference?
I don’t recall those statements, but history shows that we have implemented Constitutional Court judgments, which means we accept them.
Compared with President Jacob Zuma’s recent strong comments about the review of Constitutional Court powers, this document represents something of a retreat?
There is no backtracking. The president’s comments were in conformity with the document and they were made within the context of these discussion documents. The documents refer to the constitutional court being made an apex court, because right now it is restricted to constitutional matters and other matters are left to the Supreme Court of Appeal. That debate is about the Constitution 17th Amendment Bill, which will affect the powers of the Constitutional Court, which will have more powers rather than diminished ones.
The expectation had been of a negative review of the court and its work?
Why did people expect that, since President Zuma had done so much to affirm the independence of the judiciary? Zuma has done more than presidents Mandela, Mbeki, and Motlanthe to promote the independence of the judiciary. He signed a proclamation creating the office of chief justice in an effort to promote judicial independence. Facts are facts. Why would there be doubts when so much had been done? The Constitution 17th Amendment Bill is about reflecting the Constitutional Court as the apex court. Probably some people wanted to read something into the president’s comments.
So, should South Africans relax, in the knowledge that the ANC government is not interfering with the judiciary because it is uncomfortable with some rulings?
South Africans should not be worried at all.