The recent Supreme Court of Appeal (SCA) judgment setting aside Adv Menzi Simelane’s appointment as National Director of Public Prosecutions illustrates the key role that our courts are playing in upholding core provisions of the Constitution. The Simelane case dealt with the integrity and independence of the prosecuting authority, an issue that is of crucial importance to the maintenance of the rule of law.
At the same time, the SCA’s Simelane judgment will undoubtedly deepen the growing rift between the executive and the judiciary. Even more seriously, it will raise further questions in some ANC circles regarding the constitutional foundations of our society. Many respected observers – including Judge Denis Davis – are concerned that political questions are increasingly being resolved in the courts rather than in the political arena where they more properly belong. There are real fears that if the courts continue to stymie the ANC’s will, its adherence to the independence of the judiciary, and even to our constitutional settlement, may be eroded.
In recent months government has fired a number of warning salvoes across the bows of the judiciary. On 18 August ANC Secretary-General Gwede Mantashe warned that the Constitutional Court (CC) was being used as an opposition to the government. He said that the judiciary should not be allowed to “arrest the functioning of government” and cited the CC’s Judgment in the Glenister case as an example of the court’s “opposition” role.
At the beginning of November President Zuma repeated his view ” that there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of the state, especially with regards to policy formulation.” In his opinion, “the executive, as elected officials, has the sole discretion to decide policies for government”. He warned that “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.”
Perhaps the most anguished criticism of the judiciary and the Constitution came at the beginning of September in an article by Adv Ngoako Ramathlodi, the Deputy Minister of Correctional Services – and also a member of the Judicial Service Commission(JSC).
Ramathlodi claimed that the balance of forces at the time of the constitutional negotiations had forced the ANC to make fatal concessions. During the negotiations the ‘regime’ had given up elements of political power to the black majority but had immigrated substantial power away from the legislature and the executive and had vested it in the judiciary, Chapter 9 institutions and civil society. As a result, “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society.”
White economic interests had used their power to curtail initiatives aimed at inducing fundamental changes. They frustrated the transformation of the judiciary by downplaying gender and colour requirements and delegitimized the JSC by systematically subjecting its decisions to judicial review. White interests consistently challenged government policy in the courts “where the forces against change still hold relative hegemony.” In a manifestation of subtle racism, they criticised the black-controlled public sector at every opportunity “as inefficient, corrupt and not worthy of any trust.”
This rising tide of criticism culminated in the announcement that the government will appoint a “reputable research institution” to assess “the transformation of the judicial system and the role of the judiciary in a developmental state.” The goal will be to ensure that “the judiciary conforms to the transformation mandate as envisaged in the Constitution”; to examine access to the courts; and “to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.
Clearly, a central objective of the “assessment” will be to endorse the Executive’s view that it “has the sole discretion to decide policies for government”; that the over-riding imperative in the Constitution is ‘transformation’; and that “the separation of powers means that we should discourage the encroachment of one arm of the State on the terrain of another”.
It is difficult to view the proposed assessment as anything but a clear warning to the judiciary: firstly, that it should henceforth interpret the Constitution in conformity with the government’s transformation ideology – and secondly that it should remain firmly on its side of the separation of powers fence when it comes to decisions to review the constitutionality of government policy.
In its Strategy and Tactics (S&T) documents the ANC commits itself “to strengthen the hold of the democratic movement (i.e. the ANC) over state power, and to transform the state machinery to serve the cause of social transformation. The levers of state power include the legislatures, the executives, the public service, the security forces, the judiciary, parastatals, the public broadcaster, and so on. Control by democratic forces means that these institutions should operate on the basis of the precepts of the Constitution; they should be guided by new doctrines (i.e. the ANC’s National Democratic Revolution); they should reflect in their composition the demographics of the country; and they should owe allegiance to the new order (under hegemony of the ANC).” (My italics.)
In the S & T documents the ANC also commits itself to “the fundamental provisions of the basic law of the land, which accords with its own vision of a democratic and just society.” However, it does so “within the context of correcting the historical injustices of apartheid”- i.e. within the framework of the transformation ideology expounded in the National Democratic Revolution (NDR).
Our Constitution does not empty the state of power as Adv Ramathlodi suggests. It accords the Executive the full range of powers that are enjoyed by democratic governments all over the world. However, it protects the rights and freedoms of citizens, the media and civil society from the increasing threat of pervasive state control. It does so by guaranteeing freedom of expression; freedom of association and, above all, free and independent courts.
The government loses so many court cases, not because of a sinister white/liberal conspiracy, but because its policies are so often unconstitutional. They are unconstitutional because they are based on the ideological, hegemonic and racial precepts of the NDR and not on the non-racial and genuinely democratic values and principles of the Constitution.
One thing is clear: we really do need to talk to one another.
FW De Klerk Foundation