“It is the court’s ruling to strike down some government decisions that have caused government to react in such a way. Their suggestions would impair the dignity of the judiciary,” said Mr Sipho Pityana of the Council for the Advancement of the South African Constitution.
He was speaking at a recent panel discussion hosted by Rhodes University’s Faculty of Law regarding the Department of Justice and Constitutional Development’s recently proposed Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state.
“It is made out to look like the judiciary is encroaching on the sphere of the legislature and prohibiting government from pursuing its objectives. Comments from numerous politicians show a lack of appreciation for the role of the constitution and suggest deviation from party strategy,” Mr Pityana said.
Proposing the transformation of the judicial system through a critical investigation and analysis of the judiciary, the document calls for an assessment of the impact of jurisprudence on transformation. Mr Pityana suggested that government’s proposal that the legislative, judicial and executive branches act together as a singular unit is a direct contradiction of the principles underpinning the constitution.
According to Mr Pityana the reverse assertion is that these powers must be returned to the executive, which dislodges the central assumption of the constitution. “We must ask ourselves, who are they clubbing against?
The so-called transparency project is aimed at reining in the judiciary by reviewing the powers of the constitutional court and co-opting the bench to executive led process and policy. Either way the dangerous effect would be the blending and blurring of the three arms of the state,” Mr Pityana said.
Advocate Izak Smuts, Executive Committee member of the General Council of the Bar of South Africa said certain government officials have perceived the judiciary’s stance on certain issues as akin to “browbeating and finger pointing” instead of helpful criticism, and have thus portrayed it as an entity which must be brought under control.
Describing some government officials’ “undisguised suspicion” of the judiciary, Advocate Smuts suggested that “politicians’ utterances are indicative of a poor understanding of the separation of powers, perceiving the judiciary as a competing supremacy.”
Dr Rosaan Kruger of Rhodes University’s Faculty of Law provided an overview of the legal framework underpinning the document and brought specific attention to her concerns regarding the separation of powers.
“There are some statements that point to the judiciary as being obstructive to the legislative branch. The biggest issue is its take on the separation of powers,” she said.
Dr Kruger explained that modern constitutional law increasingly considers the impact of legislation on real life and that while the document makes reference to legal pluralism, legal imperialism and the relationships between customary law, Roman Dutch law and common law.
“We must remind ourselves that we live in a constitutional democracy and this contains enabling and disabling conditions which must be enforced. That is the role of the judiciary,” Dr Kruger challenged the audience.
Further problematising the document’s stance on the separation of powers, Ms Debbie Schafer, Shadow Minister of the Department of Justice and Constitutional Development, brought attention to the fact that the review of the judiciary is being commissioned by the executive branch.
“In a constitutional democracy it is unacceptable for the executive to embark on an assessment of the performance of one of the other branches. Is this because the judiciary is the only branch the executive doesn’t have control over?” she challenged the audience.
If government’s attempts continue unchallenged, the judiciary will be rendered compliant to the legislative, she said. “This is not the democracy for which the vast majority of South Africans voted for and which we must do everything in our power to protect,” she said.
By Sarah-Jane Bradfield
Photo by Adrian Frost