ANC takes aim at ju­di­ciary

CityPress - - Front Page - CHARL DU PLESSIS, POLOKO TAU and ANDISIWE MAK­I­NANA news@city­

The de­lib­er­ate vi­o­la­tion of a court or­der by gov­ern­ment in al­low­ing Su­dan’s pres­i­dent, Omar Al Bashir, to leave South Africa has fo­cused at­ten­tion on the ANC’s at­ti­tude to­wards the ju­di­ciary.

This fol­lows com­ments by high­rank­ing lead­ers of the party who have raised the alarm that the ju­di­ciary has been “in­vad­ing” the ex­ec­u­tive space.

Higher Ed­u­ca­tion Min­is­ter Blade Nz­i­mande this week said “sec­tions of the ju­di­ciary tend to some­how over­reach into ar­eas that one would ex­pect even in a con­sti­tu­tional state to tread very, very care­fully”.

He told News24 that “if we don’t de­bate this, we run the risk of Par­lia­ment mat­ters and ex­ec­u­tive mat­ters be­ing run by the courts”.

“At the heart of our con­cern is that we must be care­ful ... [that] we must not de­fine our con­sti­tu­tional state as stand­ing in con­tra­dic­tion to ma­jor­ity rule.”

Nz­i­mande is not the only one. Chair­per­son of the Na­tional Coun­cil of Prov­inces and ANC vet­eran Thandi Modise and ANC chief whip Stone Sizani re­cently ex­pressed sim­i­lar sen­ti­ments.

Speak­ing dur­ing the par­lia­men­tary bud­get re­cently, Sizani warned that con­tin­ued scru­tiny of par­lia­men­tary process by the ju­di­ciary could lead to a “con­sti­tu­tional cri­sis”.

“In many es­tab­lished democ­ra­cies, mech­a­nisms ex­ist to al­low for in­ter­ac­tion be­tween the re­spec­tive arms of gov­ern­ment to avoid ju­di­cial en­croach­ment in the in­ter­nal ar­range­ments of Par­lia­ment,” he said.

Modise told City Press that, as pre­sid­ing of­fi­cers, they had ap­pealed to the pres­i­dent to con­vene a meet­ing of the three arms of state to dis­cuss the sep­a­ra­tion of pow­ers.

“We want to be free as pre­sid­ing of­fi­cers of this Par­lia­ment to use our rules, which we have agreed to, with­out be­ing threat­ened by court ac­tions. But you feel that at ev­ery turn you pre­side, some­body sits there, and is some­times not even okay with the rules, and de­cides that you shouldn’t have said that. You look at some of the court judg­ments and I am re­ally putting my foot in on this one … but some of the court judg­ments just say: ‘I know I shouldn’t be get­ting into this area, but I am go­ing into it any­way.’”

Zak Ya­coob, a for­mer Con­sti­tu­tional Court jus­tice, told City Press that “gov­ern­ment has been will­ingly com­ply­ing with the let­ter of the law, but not quite with the spirit.”

“What they have done in re­cent times, in­stead of em­brac­ing that duty, they have re­lied on ev­ery con­ceiv­able tech­ni­cal ob­jec­tion to evade re­spon­si­bil­ity. It is this at­ti­tude gov­ern­ment al­lows its lawyers to take which has cast some se­ri­ous doubt on gov­ern­ment’s com­mit­ment to de­liv­er­ing ser­vices for its peo­ple.”

In re­sponse to Nz­i­mande’s com­ments, Ya­coob said: “I have ex­am­ined the Con­sti­tu­tion again and I have found no pro­vi­sion that says the min­is­ter of higher ed­u­ca­tion has the power to de­ter­mine when the line has been crossed. The min­is­ter must re­mem­ber this is a power that be­longs to a court and only the court.”

Ac­tivists and lawyers have pointed to a long list of cases that show a bla­tant dis­re­gard for court or­ders by state or­gans and gov­ern­ment at var­i­ous lev­els. These in­clude:

In 2013, the Johannesburg metro po­lice ig­nored an ur­gent court in­ter­dict granted by the Con­sti­tu­tional Court against pre­vent­ing hawk­ers from trad­ing in Johannesburg’s in­ner city; and

In a le­gal bat­tle that started in 2012, Lawyers for Hu­man Rights (LHR) ob­tained an or­der set­ting aside the clo­sure of a Port El­iz­a­beth refugee cen­tre. The depart­ment of home af­fairs ig­nored it. LHR went back to court for another or­der, which was also ig­nored.

In a scathing judg­ment the ap­peal court said it was a “most dan­ger­ous thing for lit­i­gants, par­tic­u­larly a state depart­ment and se­nior of­fi­cials in its em­ploy, to wil­fully ig­nore a court or­der”.

We want to be free as pre­sid­ing of­fi­cers of this Par­lia­ment to use our rules, which we have agreed to, with­out be­ing threat­ened by court ac­tions THANDI MODISE

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