Should South Africans be worried about the double speak from the African National Congress (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 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 intends to assess 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, which 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:

• ANC Secretary General, Gwede Mantashe in August 2011, posited that the judiciary was becoming a form of opposition and said, “You cannot have a judiciary that seeks to arrest the functioning of government”;
• In September 2011, Ngoako Ramathlodi, the Deputy Minister of Correctional Services said, “In the past 17 years… we have witnessed sustained and relentless efforts to immigrate the little power left with the executive and the legislature to civil society and the judiciary. Power (is) systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes”;
• President Jacob Zuma, in an interview in early February 2012, stated that, “We do not 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.” Apart from demonstrating a lack of understanding of where this court receives its powers, this statement is in direct contrast to the statements made by Radebe who said that transformation of the judiciary was not about the Constitutional Court specifically;
• ANC national spokesperson, Jackson Mthembu, stated on 20 March 2012 that, “It is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of state,” because according to the ANC, the result is a “Blanket permission to political parties to review any state decisions using courts”;
• ANC Chief Whip, Mathole Motshekga, said on 21 March 2012 that the ruling party will do everything in its power, “To prevent government`s attempts to deliver services to the people” being derailed by the courts.

From the statements above, there appears to be no understanding that if the organs of state acted within the laws of the country, and thereby in the interests of all South Africans, the courts could not be used to overturn their decisions. Moreover, very often the courts do not stop executive bodies from doing anything they are entitled to do, but rather compel them to fulfil their responsibilities. For example, there are a number of Constitutional Court rulings preventing provincial and local governments from illegally evicting the poor and compelling them to fulfil their legal obligations relating to the provision of housing so as to prevent homelessness.

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:

• In the Glenister judgment on 17 March 2011, the Constitutional Court ruled that the legislation establishing Directorate of Priority Crimes Investigation (DPCI), also known as the Hawks, failed to meet both international and constitutional legal obligations to ensure that it was sufficiently ‘independent from political interference’;
• During July 2011, the Constitutional Court ruled that Zuma’s extension of former Chief Justice, Sandile Ngcobo’s term was unconstitutional and amounted to the executive usurping the power of Parliament;
• On 1 December 2011, the Supreme Court of Appeal (SCA) ruled that Zuma’s appointment of Menzi Simelane, as head of the National Prosecuting Authority (NPA), was ‘irrational’ given that he was clearly not a fit and proper person for that office and therefore ‘inconsistent with the Constitution and invalid’;
• On 20 March 2012, the Supreme Court of Appeal ruled that the Democratic Alliance had the right to subject to judicial review, the controversial decision in 2009 by then acting director of public prosecutions, Mokotedi Mpshe, to drop various criminal charges against Zuma. Mpshe then stated that, “The decision was not based on the actual merits of the case” and “did not amount to an acquittal.”

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, among 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 percent agreed while 27 percent disagreed – while the ‘do not know’ response stood at 36 percent.”  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.

Until there is a consistent message from all ANC officials, both in speeches and documents that reveal a clear understanding and respect for our Constitution and the court that is tasked with upholding it, the media and other stakeholders will raise alarm bells. Until then, citizens who value our constitutional democracy have every right to be concerned.

– Hamadziripi Tamukamoyo, Researcher, Crime and Justice Division, ISS Pretoria. This article was first published in the ISS Today. It is republished here with the permission of ISS.