A letter from Chief Justice Mogoeng Mogoeng to Justice Minister Ronald Lamola has revealed tension between the executive and the judiciary, with Mogoeng saying heads of courts “suspect” that Lamola may have acted unconstitutionally in how he went about consulting the judiciary on draft directions for the partial closure of courts.
Tension between the judiciary and the executive is inherent and inevitable in a constitutional democracy. In times of crisis, it can be expected that the tensions will rise. It appears that Lamola — in seeking to respond to the Covid-19 pandemic — sought to consult the judiciary about the best way courts should operate during the lockdown.
But in the letter, dated March 26, and which the Mail & Guardian has seen, Mogoeng questions whether the government is authorised by the Constitution to regulate the closure of courts, and then consult the judiciary about it — or, as he puts it, “to remove the specific constitutional and statutory powers vested in another arm of state, giving them to the executive and then seeking to consult the bearers of those constitutional and statutory powers” on how to exercise them.
“This is arguably comparable to a situation where the executive takes a vehicle that belongs to the judiciary, drives it to a destination of its choice, then seeks to offer a lift to the judiciary on the terms determined by the executive itself,” said the chief justice.
In his letter, Mogoeng also questioned whether the “current regime” under the Disaster Management Act gave the executive “more extensive and restrictive powers” then what is provided for during a state of emergency under the Constitution.
But he added that the judiciary appreciated that “these challenges arise within the context of the executive trying to do the best they can to secure the well-being of us all, under extremely trying circumstances”.
Directions for the partial closure of courts were gazetted on March 26. These were amended this week, with new directions published on Wednesday. Under both sets, courts remain open for certain types of cases — including urgent cases and cases relating to the Covid-19 shutdown.
In the run-up to the gazetted regulations, the heads of court, in a press conference on March 18, announced a set of measures to cater for the pandemic in courts.
Then, on March 25, Mogoeng announced that he had delegated the authority to regulate what services individual courts would provide during the lockdown to the heads of courts.
In a letter to colleagues on March 24, Mogoeng said that under the Constitution, even in a state of emergency, the courts had to be open to pronounce on its validity.
“Courts therefore have to stay open in case members of the public want to bring one challenge or another in relation to the constitutionality or the validity of the measures being implemented,” said Mogoeng. Heads of court have since issued more detailed directions for their own courts.
Neither the justice minister nor the office of the chief justice would confirm the authenticity of the letter of March 26 but the M&G has confirmed it with three independent sources.
The minister’s spokesperson, Chrispin Phiri, referred questions to the office of the chief justice, which would not answer questions about the letter, saying the M&G had to provide it with a copy of the letter before it would consider doing so. The spokesperson for the office of the chief justice, Nathi Mncube, also questioned whether it was in the public interest to publish the contents of the chief justice’s letter.
In his letter, Mogoeng did not refer to specific sections of the Constitution.
Section 165 says, “No person or organ of state may interfere with the functioning of the courts.” But it also says, “Organs of state, through legislative and other measures, must assist and protect the courts …”
In practice, the running of the courts has been a collaborative exercise between the judiciary, the justice department and the public works department.
In declining to be consulted by the minister, Mogoeng said that “because of the tentative view that we hold, it would be inappropriate to agree to be consulted on a process whose constitutionality is suspect”.
“We think it might compromise and possibly embarrass us to express a view on and be party to a possible unconstitutionality. I therefore distance the judiciary from this consultative act, hoping that you will appreciate our predicament,” he added.
In response to detailed questions, the office of the chief justice said not being provided by the M&G with a copy of the letter “puts us in a very difficult position in that it does not allow us the opportunity to verify its authenticity, which you have asked us to do”.
Mncube said: “It is our principled position that any correspondence shared confidentially between the chief Justice and any other person must remain confidential. In the event that such correspondence is dishonestly or impermissibly obtained, neither the chief justice nor his office has an obligation to respond publicly to its contents.”
He said there could be an exception where “the enquirer can show that the communication does in fact exist, she has shared it with us, and we are satisfied that it is in the best interest of the public to respond and that we would not ourselves be acting unethically or be breaching confidentiality by cooperating with the enquirer”.
An email recording the M&G’s detailed notes of the letter was also apparently not sufficient.
Mncube added: “In the midst of the Covid-19 pandemic it is not clear how this matter can justifiably be classified as of public interest or as advancing the welfare of South Africans, considering its apparent confidentiality.”
‘Stay away until lockdown ends’
People whose matters were on the court rolls and not urgent should stay home until after the lockdown, Chrispin Phiri, the spokesperson for Justice Minister Ronald Lamola, said in a media statement.
New directions for how courts would operate during the lockdown were issued on Wednesday by the justice minister.
On Wednesday morning, the Mail & Guardian’s Kwanele Sosibo was at the Johannesburg magistrate’s court.
He said there were queues on either side of the entrance, stretching about 20 metres either way.
“People were trying to adhere to social distancing, but family members were still huddling close together … The security guards said that the queues were moving swiftly, but that people inside were actually being given remands or new dates, depending on which courts they were going to.
“People who had come to see their loved ones appearing in specific courts were being told to go back as they wouldn’t be able to see them.”