Hamadziripi Tamukamoyo, Researcher, Crime and Justice Division, ISS Pretoria
Should South Africans be worried about the double speak from the ANC concerning transformation of the judiciary? Speaking to journalists in parliament on 28 February 2012, the Minister of Justice and Constitutional Development (DoJ), Jeff Radebe asserted that the government had no interest in reducing the powers of the Constitutional Court. Radebe was visibly irritated by this line of questioning at the press conference and took umbrage with what he saw as unnecessary concerns each time the ANC debates the transformation of the judiciary. Radebe stated that cabinet intended assessing how “Constitutional Court rulings have impacted on the lives of ordinary South Africans” and how “challenges” to the goals of transforming South African society could be better addressed by the judiciary.
In the preface to the Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State released in February 2012 by the DoJ, Radebe argues that, “the transformation of the judicial system is a constitutional imperative which is entrusted upon the government as a branch of the state, assigned the responsibility of developing and implementing national policy and of initiating legislation, among others.”
Radebe rightly states that the “judiciary has an important role in safeguarding and protecting the Constitution and its values and in ensuring the consolidation of democracy and the realisation of a better life for all.” Further that, “it is important that the role of judicial officers is properly understood by those whose fate and livelihood is dependent on the judgments they give through the courts.”
In South Africa the rulings of various courts can be the subject of vigorous and free public debate. Free speech is after all a pivotal pillar of a constitutional democracy. The discussion document does acknowledge that the three “branches of the state are co-equal” partners entrusted with distinct powers in their quest to realise the ideals of a democratic South Africa. However, the talk of judicial review, especially at a time when a number of Constitutional Court decisions have been against the government is being treated with suspicion, specifically in light of ongoing comments by senior ANC officials that reflect a profound misunderstanding of the role of the courts or reveal outright hostility towards the judiciary. These include:
The conflicting statements from various senior ANC officials with what is written in policy documents, raises legitimate concerns that the ruling party does not have a coherent position as far as the transformation of the judiciary is concerned. The statements from ANC officials should be seen in the light of various upper court judgments that have caused embarrassment to the executive. Recent examples that highlight the poor exercise of executive power include:
The assessment of the Constitutional Court, the first since 1994, is therefore an interesting proposition coming at this time from the executive branch of government. Typically, criticism of the court from legal scholars tends to focus on how it could have done more to promote socio-economic rights, for instance by ruling on a minimum standard of socio-economic rights (e.g. the minimum amount of housing, water, education, etc.) that everyone is entitled to. However, it has resisted doing so, perhaps rightly, arguing that this would be to stray into the executive policy making arena and be more onerous on the state if it did. If anything, judgments such as the Grootboom and others versus the Republic of South Africa, amongst many others, have shown that it is the executive branch, not the judiciary, which is really failing the poor of South Africa. In the Grootboom case the Constitutional Court determined that the State is bound to provide citizens with a minimum of socio-economic rights, including the right to adequate housing.
The DoJ document, in its title, refers to the “... role of the judiciary in the developmental South African state,” yet there is very little articulation of what the judiciary can possibly do to advance the ideals of development and to ease the plight of the poor, beyond that which it currently does, which is to compel the executive to act in accordance with the constitution and the laws that flow from it.
On the day that the discussion document was released, a TNS survey concerning respondents’ perception of the judiciary was published. “Asked whether judges were biased towards the government, 38% agreed while 27% disagreed - while the "don`t know" response stood at 36%.” This reveals that a large proportion of people differ from various senior ANC officials, as they tend to believe that the judiciary works in favour of the executive. Given that two thirds of those surveyed believe that judges are biased one way or another demonstrates the fragility of the judiciary. By unfairly attacking the courts, powerful politicians are thereby undermining the rule of law.