State probe of judiciary causes unease

The government announced on Thursday that it is going to assess the transformation of the judiciary, including the judgments of the Constitutional Court, but legal experts said they did not know if its intentions were noble or sinister.

According to the announcement, the three-fold assessment will determine if the judiciary has conformed to its transformation mandate “in terms of non-racism, gender and disability as envisaged in the Constitution”.

It will also examine access to justice at all levels and “affirm” the independence of the judiciary. The aim of the assessment, which will be carried out by a reputable research institution, will also be to promote the “interdependence and interface” necessary to realise the transformational goals envisaged by the Constitution.

Cabinet spokesperson Jimmy Manyi said the government will examine how Constitutional Court decisions have affected the lives of ordinary South Africans and how they had influenced socioeconomic transformation and reform of the law.

Constitutional law expert Professor Pierre de Vos said there was nothing wrong with looking at access to justice and whether the judiciary was implementing its constitutional mandate effectively.

“If that’s what they are trying to do, I see no problem. The devil is in the detail.”

He said it was more worrying if the assessment of the judiciary was taken in the context of recent statements by ANC secretary general Gwede Mantashe and President Jacob Zuma about the judiciary interfering in the work of the executive.

Dr Raylene Keightley, director of the Centre for Applied Legal Studies at Wits Uni­versity, shared that sentiment, saying it was also important to know the underlying motive for conducting an assessment.

“It would be important for the Cabinet to be transparent about its objectives, [such as] what is it hoping to achieve and what will it do with the information. It would otherwise seem that the courts are being put under the microscope, with the intention to place them in a negative light,” she said.

Zuma has repeatedly said that the judiciary should not seek to usurp the policymaking powers of the legislature and executive.

Welcoming new Chief Justice Mogoeng Mogoeng last month, Zuma said: “In our view, the principle of separation of powers means that we should discourage the encroachment of one arm of the state on the terrain of another and there must be no bias in this regard. 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. We also reiterate that, in order to provide support to the judiciary and free our courts to do their work, it would help if political disputes were resolved politically. 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.”

Manyi said the departments of justice and constitutional development would give further details next week.

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