Review of judicial powers called off

It would have included an assessment of the "transformative impact" of the decisions of the Constitutional Court and the Supreme Court of Appeal.

The Mail & Guardian is in possession of a letter sent from the justice department's acting director of supply chain management, Shafiek Bassier, to one of the organisations that had tendered for the review, confirming the cancellation "due to some technicalities".

Justice department spokesperson Mthunzi Mhaga confirmed to the M&G that the bid process for the review had been cancelled as the department was considering recommendations from the bid committee. Mhaga said the "process will be restarted".

The review had been announced by Justice Minister Jeff Radebe in February this year. Radebe's announcement had followed worrying statements emanating from the ruling ANC about the independence and powers of the judiciary.

These included president Jacob Zuma telling the Star newspaper "we don't want to review the Constitutional Court, we want to review its powers … It is after experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with," Zuma is reported to have said earlier this year.

It was against this backdrop that consternation had grown within the legal fraternity and broader civil society over the intentions of the review. However, several judges, including then-acting deputy chief justice, Zac Yacoob had also publically welcomed the review as an opportunity to gauge the effects of their judgments.  

Richard Calland, director of the Democratic Governance and Rights Unit at the University of Cape Town – which had also bid for the review tender together with Wits and the University of Pretoria – said they intend d to proceed with their own evaluation, but "without the resources that we sought with the tender application, it will inevitably be a somewhat more modest contribution to a much-needed national conversation".

He added, "coming from where [the review] did, with the dubious, misconceived motive that apparently lay behind the original idea of the 'review', I am not surprised that eventually government thought better of it. Other political priorities have overtaken it, though the power of the courts to review executive action will no doubt remain contested territory, which will continue to require absolute vigilance."

Judith February, the executive director of the Human Sciences Research Council's Democracy and Governance Unit, which had also bid for the review tender, said: "It is clear that the politics got in the way of this bid.

"From the start it seemed that the reason for the actual bid was less about attempting to understand the role the ConCourt has played since 1996 and rather more about trying to appease various groupings within the ANC specifically those who felt discomfort at some of the judgment the Concourt had handed down in which it found against government," added February.

"It also took place against the backdrop of senior members of the ruling party criticising the role judges played and labelling them as 'counter-revolutionary' for instance. On the other hand there are those within the ANC who understand perfectly well the record of the ConCourt and its progressive interpretation of our Constitution," said February.

"What is of concern is that no reasons were given for the withdrawal of the tender apart from the letter mentioning 'technical' reasons. It would be good for those who put significant effort into the bid process to understand why it is that the bid was withdrawn after all these months," added February.

Niren Tolsi
Niren Tolsi

Niren Tolsi is a freelance journalist.

His areas of interest include social justice; citizen mobilisation and state violence; protest; the constitution and the constitutional court and football.


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