‘The law re­mains the fi­nal word’

Chief jus­tice says Pres­i­dent Zuma and his ex­ec­u­tive have as­sured him that, from now on, an at­ti­tude of re­spect to­wards the courts will pre­vail

CityPress - - News - HLENGIWE NH­LA­BATHI hlengiwe.nh­la­bathi@city­press.co.za

Chief Jus­tice Mo­go­eng Mo­go­eng is con­fi­dent that the coun­try will never again wit­ness the kind of large-scale, un­sub­stan­ti­ated crit­i­cism that was re­cently di­rected at the ju­di­ciary by the ANC and its all al­lies. In an in­ter­view with City Press on Fri­day, Mo­go­eng sug­gested the ju­di­ciary had made it clear how strongly it felt about the mat­ter and those who had at­tacked it in the man­ner they did would by now have re­alised their mis­take.

Mo­go­eng spoke to City Press a day af­ter a del­e­ga­tion of nine se­nior judges met with Pres­i­dent Ja­cob Zuma and some of his Cab­i­net mem­bers about de­te­ri­o­rat­ing re­la­tions be­tween the two cru­cial arms of the state they each rep­re­sented – the ex­ec­u­tive and the ju­di­ciary.

“I’m con­fi­dent there is a much deeper re­al­i­sa­tion about just how dam­ag­ing it could be for the ju­di­ciary, as an in­sti­tu­tion, and our con­sti­tu­tional democ­racy if these kinds of at­tacks are sus­tained and re­peated,” he said.

“That is the re­straint I be­lieve will cause none of the key role play­ers to ever find it easy to go back to where we come from.”

Mo­go­eng had re­quested the meet­ing, which was chaired by Zuma af­ter se­nior lead­ers of the ANC, in­clud­ing sec­re­tarygen­eral Gwede Man­tashe and SA Com­mu­nist Party gen­eral sec­re­tary Blade Nz­i­mande, had com­plained about the ju­di­ciary.

They spoke of what they termed “ju­di­cial over­reach”, and oth­ers even al­leged that mag­is­trates some­times con­nived and met with cer­tain in­ter­ested par­ties to pre­de­ter­mine cases.

Mo­go­eng said he be­lieved in the in­tegrity of those who had for­merly hurled in­sults at judges and mag­is­trates. As part of the gov­ern­ment del­e­ga­tion, these peo­ple had given as­sur­ances – dur­ing the frank dis­cus­sions – that it would not hap­pen again.

“Our de­par­ture point is our Con­sti­tu­tion. It is the rule of law, and that same Con­sti­tu­tion vests the au­thor­ity to in­ter­pret the Con­sti­tu­tion and the law to re­solve dis­putes in the courts of this coun­try. That po­si­tion re­mains un­changed,” said Mo­go­eng.

Af­ter the meet­ing, Pres­i­dent Zuma em­pha­sised gov­ern­ment’s com­mit­ment to the in­de­pen­dence of the ju­di­ciary, the rule of law and the sep­a­ra­tion of pow­ers.

Zuma said they had agreed in the meet­ing to ex­er­cise care and cau­tion with re­gards to public state­ments and pro­nounce­ments crit­i­cis­ing one another in fu­ture.

Mo­go­eng said there was room for a broader en­gage­ment in a a fo­rum such as a seminar to al­low more time to dis­sect and de­bate whether the ju­di­ciary was over­reach­ing.

“Our re­sponse is we do not want to be overly de­fen­sive ... It’s healthy that we have that de­bate.”

Mo­go­eng said that, on their part, the judges had made an un­der­tak­ing to ex­e­cute their man­dates in a man­ner that was not con­trary to the Con­sti­tu­tion.

He added that any­one who had a rea­son to be­lieve a mem­ber of the ju­di­ciary had be­haved un­eth­i­cally had a duty to “step for­ward, strength­ened by the ev­i­dence he or she has”.

“They must use avail­able struc­tures, like the Ju­di­cial Con­duct Com­mit­tee or the Ju­di­cial Ser­vices Com­mis­sion, to re­port judges or mag­is­trates who are be­lieved to have erred.”

How­ever, Mo­go­eng said he was not aware of any con­niv­ing judge or mag­is­trate.

Some of the lead­ers of the ANC were rat­tled by Deputy Chief Jus­tice Dik­gang Moseneke’s re­marks in Novem­ber last year when he ques­tioned the wide-rang­ing pow­ers that the Con­sti­tu­tion be­stowed on the pres­i­dent.

This was seen to be di­rected at Pres­i­dent Zuma, who has the power to ap­point and fire heads of key state in­sti­tu­tions, such as the Na­tional Pros­e­cut­ing Au­thor­ity.

Mo­go­eng would not be drawn to com­ment about his deputy’s ut­ter­ances, ex­cept to say he ap­pre­ci­ated the crit­i­cism of ANC trea­surer-gen­eral Zweli Mkhize, who had “re­sponded so well”.

Mo­go­eng said he had thanked Mkhize for his sub­stan­tial in­put. Mkhize had ques­tioned why any­one would stop at the pow­ers of the pres­i­dent and not con­duct a re­view of the pow­ers of all arms of the state.

“[Mkhize] didn’t gen­er­alise; he was spe­cific. He spoke about the deputy chief jus­tice and ex­plained him­self. We ex­pect of ev­ery­body who is in­clined to crit­i­cise us to be sys­tem­atic, to sub­stan­ti­ate the crit­i­cism lev­elled against any one of us or the en­tire ju­di­ciary, if need be,” said Mo­go­eng.

He added that there would al­ways be ten­sion be­tween the ju­di­ciary and the ex­ec­u­tive, as had been the case for more than 100 years. “If we ever get to a point where we agree on ev­ery­thing, it will be an in­di­ca­tion that our con­sti­tu­tional democ­racy is fake, if not dead.”

Speak­ing about crit­i­cism against chap­ter 9 in­sti­tu­tions, such as the Public Pro­tec­tor, Mo­go­eng said it was im­por­tant to en­sure that the crit­i­cism did not have the un­in­tended con­se­quence of dele­git­imis­ing these in­sti­tu­tions.


LORD OF LAW Chief Jus­tice Mo­go­eng Mo­go­eng is the most se­nior judge of the Con­sti­tu­tional Court and heads the ju­di­ciary of SA. He says the Con­sti­tu­tion must ul­ti­mately de­cide the out­come of all dis­putes

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