Prof Sandra Liebenberg has a good article in Business Day today in which she also criticises the attack by Johannesburg mayor Amos Masondo on the judgment of Judge Moroa Tsoka in the Phiri water case. Money quote:
There may of course be legitimate debate about whether the judge got it right, and this is an important part of public discourse and debate in a democratic society. As is the case with legislation and policy, court judgments should also be exposed to robust critique and debate. This is fundamental to a vibrant democracy.
However, it is an entirely different matter to call into question, as Masondo has done, the duty of judges to interpret constitutional rights and to grant effective remedies in the cases that come before them. The suggestion that, in performing this role, judges are acting as though they are “above the law” or that they should form a political party if they wish to govern the land undermines the fundamental principle of the rule of law. It also contributes nothing to democratic debate about the meaning and implications of constitutional rights for the governance of our country.
I also totally agree with Prof Liebenberg – following Justice Albie Sachs? – that we should view judgments of the Constitutional Court as part of our democratic conversation. Judges are independent but the courts are one of the three branches of government and their decisions must be viewed in that light.
Instead of viewing the courts’ role in enforcing these rights as an unwelcome intrusion, Johannesburg should understand that this is part of the “constitutional conversation” between courts, the government and civil society on how best to realise human rights. Rather than detracting from democratic politics, the judicial enforcement of human rights enriches constitutional democracy. The city should view judicial intervention in cases such as Mazibuko as an opportunity for research and reflection on whether its policies are consonant with the Bill of Rights. This will enable a more constructive dialogue on whether we as South Africans are meeting our constitutional commitments to the poor.
Pierre,
I must commend Prof. Sandy Liebenberg – and even you Pierre – for coming out and protecting the integrity and independence of our judiciary.
Amos Masondo was grandstanding and careless with his statement. Its exactly the kind of statements we have been criticising Mr. Zuma and his friends for. Of course there are certain aspects of the judgment readers of this blog think the judge got academically mixed up. Mosando probably knows this as well. But he has a recourse, he can appeal the judgment all the way to Constitution Hill (Constitutional Court).
When will our political leaders stop using our judiciary for a punching bag? I have had the privilege of travelling to many countries outside South Africa and in these countries our judiciary – including our Constitution- is held in the highest esteem. In turn this has brought us scores of tourists and direct foreign investment. These people come here with the peace of mind that should things turn nasty, there is a credible court system to protect their persons and their interests.
It is only here at home that we take our judiciary for granted, and take a swipe at it anytime. Apart from its role to keep the executive (government) and the legislature (parliament) in check, I cannot help thinking that our judiciary has facilitated the process of reconciliation and transitional democracy in this country.
Soon after the majority voted and took over government in 1994, it was feared that Whites would leave in droves as happened in other African countries. Yes many have left. But many have also stayed. Those who stayed did so on the belief that there was a sound Constitution – protecting their interests- and a court system to interpret and enforce the Constitution.
In that sense our judiciary is our jewel. We therefore have to be vigilant and jealously guard our jewel.
Siya
“It is only here at home that we take our judiciary for granted, and take a swipe at it anytime.”
I think two things influence at least some perceptions regarding the judiciary:
1. Perceived levels of corruption in governmental institutions.
2. Perceived racial prejudice: Would black freedom fighter X get a fair trial from a white judge?
A general distrust develops. Who can you trust? Even our police commissioner has a case against him.
“Those who stayed did so on the belief that there was a sound Constitution”
I think you’re right on that. Before elections many whites talked about the value of a vote against the ANC to keep them from a 2/3rds majority to be able to amend the constitution. White people seem to have attached a lot of value to it.
BTW as a side note. There does seems to be a current exodus from here in CT, eg: my employer’s child’s school class, out of 20, 5 left last year and 5 are leaving this year, that’s half the class in two years.
Pierre
“This will enable a more constructive dialogue on whether we as South Africans are meeting our constitutional commitments to the poor.”
It is interesting to think of it as a dialogue, but does the process not lack enough feedback. There’s judgment and appeal, and then?
Of val ek uit die bus uit? (am I missing the point) [due to my lack of knowledge]
Shouldn’t we have something more definite come judgment day, than it merely being part of a conversation? Or is constitutional rights to practically fuzzy?
The dialogue is supposed to be between the courts and the other two branches of government. This means that the court does not see itself as always having the last word. When they make a decision they place the ball back in the court of the other two branches of government who can respond in an appropriate way (always within the confines of what the Constitution allows though) and can devise different policy prescriptions if they so wish. That is why I do not agree with some commentators and politicians that it necessarily reflects badly on the government when a court finds that it is in breach of its constitutional duties. These duties are often set out in the Bill of Rights in remarkably vague terms and it is only through this dialogue that the contours of the rights really emerge.
That said, I think it is a great shame that newspapers and radio and TV often report in such a superficial way on especially the decisions of the Constitutional Court. Each media house should have a designated CC reporter – preferably someone with a law degree and an ability to simplify complex issues for the average audience because the CC is in effect the third branch of government but is not treated in the same way by the media houses.
Thanks. Worth chewing on.
You have an interesting point of view, thank you for sharing it