/ 4 November 2011

Courting disaster with the judiciary

That the ANC and its president, Jacob Zuma, have an adversarial relationship with the judiciary is no longer a matter of conjecture.

Addressing MPs in a farewell speech to former chief justice Sandile Ngcobo in the National Assembly Zuma reiterated his strongly held views on the separation of powers.

His remarks were an echo of ANC secretary general Gwede Mantashe’s recent attack on Constitutional Court judges, in which he said they threatened the stability of the ANC-led administration and that their opposition to the appointment of new Chief Justice Mogoeng Mogoeng in favour of Deputy Chief Justice Dikgang Moseneke was driven by racism.

“The executive must be allowed to conduct its administration and policymaking work as freely as it possibly can. The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote,” Zuma told Parliament.

“We must not get a sense that there are those who wish to co-govern the country through the courts when they have not won the popular vote during elections. This interferes with the independence of the judiciary.”

The president’s comprehension of the separation of powers is as limited as it is problematic. There seems to be a misunderstanding about the “courts determining policy” and the definition of “policy” emanating from Luthuli House.

The cases cited as evidence for the ANC’s worries that the courts are blurring the lines of separation cannot be said to amount to “making policy”.

The Constitutional Court judgment forbidding the extension of Ngcobo’s term of office was about legal and constitutional procedure (and the limits of executive power), not policy. The Glenister decision, which declared the Hawks insufficiently independent to replace the Scorpions, set out how a particular policy approach failed to meet the constitutional test. It is arguably an activist interpretation of the Constitution, but it does not constitute the making of policy.

In earlier decisions that have aroused the ire of government the Constitutional Court has usually found in favour of the country’s poor and economically marginalised. For example, the Irene Grootboom and the Occupiers of 51 Olivia Road judgments fleshed out the constitutionally protected right of everyone to have a house and made it harder for municipalities to evict arbitrarily and without providing alternatives.

Even when the courts ordered the government to provide antiretroviral treatment to people with HIV it was not so much creating policy as it was interpreting existing constitutional provisions.

In short, to submit policy decisions to the test of legality does not amount to improper interference; it is basic to the principle of judicial review. Indeed, this testing of legality is precisely what our Promotion of Administrative Justice Act, among other laws, was designed to achieve.

Just this week the North Gauteng High Court struck down amendments to the Films and Publications Act that demanded prior screening of certain depictions of sex. It was found that the policy intention of protecting children had not been adequately translated into law.

Zuma and his advisers presumably understand this, so we can only assume that they are attempting to erode public faith in the separation of powers to which they pay such voluble lip service. They should stop.

Read the second half of the editorial “Europe’s crisis is ours too

President Jacob Zuma has nominated Constitutional Court judge Mogoeng Mogoeng as the new chief justice. For more news on the controversy surrounding the proposed appointment visit our special report.