/ 10 July 2011

Ngoepe: Powers of executive and judiciary are equal

The powers of the three organs of government — the executive, the judiciary, and the legislature — are all equal, Judge President of the North and South Gauteng High Courts, Bernard Ngoepe, said on Sunday.

“None can be higher than the other. They are all equal,” he told the South African Press Association in an interview at the closing of the Access to Justice conference in Johannesburg.

Ngoepe was referring to comments made by President Jacob Zuma that although the separation of powers was important, courts should not be more powerful than the government.

“In as much as we seek to respect the powers and role conferred by our Constitution on the legislature and the judiciary, we expect the same from these very important institutions,” Zuma said on Friday.

“The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections.”

Zuma stressed the need to distinguish the areas of responsibility between the judiciary and the branches of government, particularly with regards to government policy formulation.

“The executive, as elected officials, have the sole discretion to decide policies for government.

“This means that once government has decided on appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies,” he said.

Ngoepe believed Zuma meant that all three institutions were bound by the Constitution.

‘The executive cannot do as it pleases’
“As far as I am concerned, what he [Zuma] means is that the Constitution demarcates the areas of authority of the judiciary, the executive and Parliament, and that each of the three institutions is bound by the Constitution to remain within the parameter of its constitutional authority and not encroach on the authority of the other two.”

This was a valued principle, said Ngoepe.

Some political analysts told the Saturday Star they interpreted the president’s comments as a reference to the Constitutional Court’s ruling earlier this year in which a narrow majority of justices found legislation that controversially killed off the Scorpions unit — and established the Hawks — as being unconstitutional.

Political analyst, advocate Paul Hoffman, director of the Institute for Accountability in Southern Africa, told the publication it was the duty of the courts to uphold the Constitution.

“The executive cannot do as it pleases on matters of policy,” he said.

“Any law or any conduct produced as a matter of policy which is inconsistent with the Constitution, such as dissolving the Scorpions or denying treatment to Aids patients, is invalid.”

Delegates heard at the three-day conference that the independence of the judiciary was crucial for a democratic and just system.

Zuma said the Constitution had adequate checks and balances to protect and safeguard the independence of the judiciary.

Some politicians had undermined this, Ngoebe said.

“In the past, there have been a few remarks by some individual politicians which could be understood as undermining the independence of the judiciary. However, there has been nothing serious in this regard.”

He said there had been times when judges believed their lives were in danger.

“There have been instances when judges who were doing certain cases felt threatened and were afforded police protection.” – Sapa