SA courts strengthen democracy, says Sachs
RETIRED Constitutional Court Judge Albie Sachs this week rejected outright President Jacob Zuma’s assertion that courts overreached their mandate or were counter-majoritarian when they made findings against government.
Zuma last week told the ANC policy conference that continual court challenges brought by opposition parties against his government were anti-democratic.
Speaking at the National Arts Festival’s Think!Fest in Grahamstown, Sachs said the opposite was true.
Court decisions – such as the judgment on the Nkandla debacle – had not weakened parliament but rather injected a new “vitality and integrity” into its work.
Sachs was referring to the Constitutional Court’s finding that President Jacob Zuma had failed to “uphold, defend and respect” the constitution when he refused to comply with then public protector Thuli Madonsela’s remedial action in the Nkandla matter. The court also ruled that members of parliament had violated the constitution and their oath of office by failing to hold Zuma accountable.
Sachs said parliament had not been “diminished by the decision but had rather been empowered to improve its oversight and demand for executive accountability”.
He said other court findings that decisions taken by the administration had to be rational had also strengthened rather than weakened democracy.
He said the courts had developed the theory of rationality in the face of inappropriate appointments to positions such as the head of public prosecutions and of police.
One could not appoint a liar or a crook to head institutions designed to catch out liars and crooks, he said.
“It’s not a party political decision. It’s doing the job the constitution gives the courts to do.”
He said the Constitutional Court had also effectively saved the welfare programme from collapse with its decision on the South African Social Security Agency (Sassa) and Cash Paymaster Services debacle.
Its intervention in that matter had been balanced, wise and pro-poor, and had encouraged the social development department to properly carry out its work.
“If a certain section [of the state] is losing case after case after case, I would say it is because they are failing in their duties in case after case after case; and far from diminishing respect for democracy the courts have given people hope.
“It says the constitution and integrity mean something.”
Sachs said it was civil society and non-profit organisations that were often involved in vital litigation against the state.
Sachs was speaking as part of a panel discussing whether the government should support “pesky” non-profit and non-governmental organisations (NPOs and NGOs).
Social activist Elinor Sisulu said the state’s slashing of funding for child welfare organisations in the province had plunged it into a crisis and left thousands of vulnerable children in peril.