Judicial overkill checks vital
JUDGE Bashir Vally’s judgment on the Pravin Gordhan saga is a classical case of judicial overreach. The tone of the judgment and the deadline imposed are tantamount to judicial overkill.
The appointment of ministers in any reshuffle is unambiguously in the domain of the executive.
The constitution sets out a separation of powers between institutions – the executive, legislature and judiciary, to ensure checks and balances so essential in a democracy.
Over the past nine years, our high courts have encroached on the judicial space of Parliament and the executive, but there is no such checks and balances on the judiciary or its accountability.
Judge Vally based his judgment on a spurious intelligence report, whose author and origins are unknown. An independent judiciary is of critical importance in a democracy, but there must be some mechanism that checks judicial overkill, to make the judiciary accountable. It was Francis Bacon who, four centuries ago, in his essays of Judicature [1625] said: “Judges ought to remember that their office is Jus Dicere and not Jus Dare, to interpret law, and not to make law or give law”.
Our learned judges are wise jurists, but they are not infallible, a classic case being the murder trial of Oscar Pistorius. The trial court, in its wisdom, invoked dolus eventual is instead of dolus directus. It took the full Bench of the SCA to render the correct verdict.
The confrontation between the executive and various arms of the judiciary, indicates that government is not willing to let courts walk over its jurisdiction.
It is important for the judi- ciary to realise that it has encroached into executive legislature turf, and must seek accommodation with the executive. We need political neutrality in judges as much as independence to get a vibrant and fearless judiciary. “No political truth is of greater intrinsic value than the separation of powers. The accumulation of all powers, legislative, executive and judiciary in the same hands, may justly be pronounced by the very definition of tyranny ”.( PUBLIUS 1788). The judgments of Judge Vally and Judge Willie Seriti on the troubled 1999 arms deal, are two cases of judicial overreach and judicial under-reach. The rulings were based on personal or political considerations rather than legal precedent. The unsettling political fallout from these judgments is that in law, when such decisions are upheld, it is tantamount to legislating from the Bench, in effect creating a new law which is not the responsibility of the judiciary. Our political system is guided by a sacred and supreme constitution. It constructs a system that avoids concentrating too much power in any one body of government.
Post apartheid, South Africa has had four presidents, who regularly reshuffled their cabinets. Nelson Mandela fired the most popular woman, Winnie Mandela in 1995. No reasons were given. Thabo Mbeki fired the most competent deputy health minister Nozizwe Madlala-Routledge in 2007. President Zuma dismissed the most popular politician when he fired Pravin Gordhan. All acted within the ambit of executive privilege. Although these actions were morally indefensible, they were in terms of constitutional law unchallengeable. Farouk Araie