Hugh Corder

The newspaper billboards on Monday proclaimed shock at President Zuma’s “attack” on the Constitutional Court (CC). My immediate reaction was to wonder what the President had said this time. Anyone who has observed the relationship between the judiciary and the executive over the past five years will know that the President has on several occasions questioned the role of the courts, especially in holding the executive and Parliament to their constitutional mandate. Of course, in his personal capacity, the President has repeatedly manifested complete trust in the courts, not only as a person accused of rape, but also in his long-drawn out series of applications to court which effectively stalled the proposed charges against him for arms-deal corruption. Using what many might view as delaying tactics, implemented by skilful lawyers relying on rights protected in our Bill of Rights, Mr Zuma succeeded in escaping having to plead to any such charges.

What many might have forgotten was the clamorous campaign of vilification of the judiciary indulged in by leading members of the tripartite alliance at that time. Several of the most senior leaders of that alliance made often wild and usually unsubstantiated accusations against individual judges or the judiciary collectively (except of course the judge who found Mr Zuma not guilty of rape, and the judge who found that there had been some sort of political conspiracy behind the levelling of the corruption charges, in both cases after they had given judgment). This intemperate and intimidatory campaign was also indulged in by office-bearers of the ANC Youth League, without any form of restraint from their elders. And Mr Zuma himself, shortly before his election as President, said on 9 April 2009 that he did not understand why the courts had the power to overrule the will of Parliament, and likened the role of the Constitutional Court to God; so his faith in the courts was qualified

In pondering the possible thrust of the President’s latest statement, I recalled other remarks he had made over the past year or so, in which he has again criticised the constitutional role of the courts, not their decisions, while at the same time affirming his commitment (as he must, according to his oath of office) to judicial independence and the rule of law. I then worried about openly hostile remarks made last year about the Constitution and the courts, alleging that they were obstacles to transformation, by Deputy Minister Ramatlhodi, and Mr Gwede Mantashe. I recalled the manner of appointment of both the NDPP, Mr Simelane, the botched attempt to extend the term of office of Chief Justice Ngcobo, and the entirely unedifying run-up to the appointment of Chief Justice Mogoeng. I also remembered that the Judicial Service Commission has yet to rule on a single instance of alleged judicial misconduct, and that the rationality of its selection process has recently been found wanting by a court. Could the President have spoken on these issues?

My thoughts then turned to the Cabinet announcement of 24 November 2011, when it decided “that the transformation of the judicial system and the role of the judiciary in a developmental state would be assessed by a ‘reputable research institution’”. The focus of the investigation would be threefold: first, to ensure that the judiciary “conforms to the transformation mandate as envisaged in the constitution”; second, to enhance access to justice at both superior and lower court levels; and third, to examine “the independence of the judiciary as well as the executive and parliament to promote independence and the interface necessary to realise transformation goals as envisaged by the constitution”. At the time, many commentators feared that this would be an attempt to narrow or eliminate the review power of the CC, a direct undermining of one of the most fundamental foundation stones of our Constitution, and this fear moved both that quintessential icon of “struggle lawyering”, George Bizos, as well as former Chief Justice Arthur Chaskalson, to make high-profile and brutally logical rebuttals of apparent charges that the Constitution and judiciary were in some way against transformation. We were also assured last week, in an article by the South African-born American law professor, Ziyad Motala, that Bizos and Chaskalson had it all wrong, that the politicians were in no sense questioning the power of judicial review, but only criticising certain judgments. In his words: “Let’s be very emphatic. Judicial review is a central and inextricable element in constitutionalism and an unqualified positive enshrined in our Constitution. Any attempt to interfere with this fundamental norm must be fiercely resisted.” For Motala, and I think for anyone who has had anything to do with the judicial process in operation, reasonable people can disagree on the interpretation of laws, and judges should be prepared to have their judgments criticised. This is, after all, one of the most effective means of holding the judiciary accountable in a constitutional democracy, and Bizos and Chaskalson did not for a moment hint that judges should be immune from criticism: in fact, their illustrious careers bespeak the opposite.

So, what could President Zuma have said, such as to induce shock? Well, he did say a few things which should be welcomed: judges were “fallible human beings”, that some judgments were more persuasive to one reader than others, that there was nothing wrong with questioning judicial decisions. All this is trite, and I began to relax. He also made a couple of statements which I found intriguing and worth debating: that he questioned the logic of having split judgments, and that judges were influenced by “what’s happening”, and by the media.

But then the thunderbolt: there is a need to “review the CC’s powers”. This is stated unambiguously: “We don’t want to review the Constitutional Court, we want to review its powers. It is after our experience that some of the decisions are not decisions that every other judge in the Constitutional Court agrees with.” This is indeed shocking, for it is exactly what Motala said was not intended and, given the background outlined above, cannot but raise the question: why is such a review necessary? Yes, there may be judgments of the CC and Supreme Court of Appeal which have annoyed the executive (although the President is reported to have denied that this ‘informed his views’), but this is part of the price that we must pay for independent and impartial courts and ‘government under law’. There has to be a final arbiter of the lawfulness of the exercise of power in terms of the Constitution, and if it is not to be the highest court, what is the alternative? Is it indeed suggested, as Chaskalson asked, that we go back to parliamentary sovereignty? Who will then safeguard our rights in the face of unrestricted power?

Of course, the Presidency has already sought to ‘spin’ our understanding of the President’s words, as they have done before in this context. So we must apparently read these remarks in the spirit of the Cabinet review announced last November, to assess “the transformative nature of jurisprudence from the highest court…”, and this “must not therefore be viewed as an attempt by government to undermine the independence of the judiciary and the rule of law which are entrenched in our Constitution”.

Really?

Hugh Corder

Professor of Public Law, UCT; Director of Freedom Under Law

(Published in Business Day, 15 February 2012)