An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
It appears, judging from comments made to The Sowetan newspaper by Gwede Mantashe, that the Secretary General of the ANC seldom if ever reads newspapers. He also seems to have a rather, shall we say, “eccentric” view of the nature of a constitutional democracy. Either that or he is deliberately trying to mislead the South African public to try and deflect attention away from some of the current administration’s more controversial decisions.
First Mantashe claimed that “everyone who has criticised the decision of the president [to ‘nominate’ Mogoeng Mogoeng as Chief Justice] has not come out with any concrete issues they have against him, except that he is young and he is inexperienced”. This is, of course untrue. Anyone who has read a newspaper (The Times; The Star; The New Age; The Cape Times; The Sowetan) this past week or, indeed, this Blog, would know that many other reasons have been provided for questioning the wisdom of the appointment of the president’s nominee – apart from his alleged lack of experience. It is always embarrassing when an influential and generally respected person makes a claim that no informed person will ever believe, so why Mantashe made this claim is impossible to fathom.
Second, Mantashe seems to believe that there is something wrong with the Constitutional Court because it does its jobs (as required by the Constitution) by declaring invalid Acts passed by Parliament which happen to contravene provisions of the Constitution. Speaking of the Glennister case, Mantashe stated that the judgment of the majority was problematic because it sought “to cast aspersion on the work of Parliament”. Mantashe then proceeded to warn as follows:
You can’t have a judiciary that seeks to arrest the functioning of government. For every small disagreement in parliament, the positions threatens to take matters to the court. Once you have that, then you will have a perception that says the judiciary is actually consolidating opposition to government. That should not be the case. Matters must be taken to court, but the judiciary must not send complicated signals (of being an opposition).
These views are, of course, perfectly compatible with a system of parliamentary supremacy – the kind of system South Africa endured during the apartheid era. But since 1994 South Africa does not have a system of parliamentary sovereignty anymore. Instead, we have chosen a system in which the Constitution is supreme and any Act of Parliament and any conduct by the executive – amongst others – must be declared invalid by the Constitutional Court if it is asked to do so and if it finds that the provisions of the Act or the conduct is in conflict with the Constitution.
When the Constitutional Court declares invalid provisions of an Act of Parliament because these provisions happen to be unconstitutional, this is usually nothing to be embarassed about. In a constitutional democracy one can not always say with certainty whether a provision will pass constitutional muster or not and that is why the Constitutional Court has the final say to determine whether legal provisions pass constitutional muster or not. Besides, parliamentarians depend on legal advice to assist them in determining whether Bills before them are constitutionally compliant, and if they are provided with advice that is not always as wise and informed as it should be, this does not reflect badly on the members of parliament who are seldom trained lawyers.
As outgoing Chief Justice Sandile Ngcobo pointed out in a speech delivered last year, there is nothing strange about parliament declaring invalid acts of parliament. This is all part of a constitutional dialogue in which the court assists the legislature and the executive to ensure that its actions comply with the Constitution. When it assists the other branches of government, it is not acting as the opposition as Mantashe claimed, but as guardians of the Constitution. Surely Mantashe knows this. If he does not, then I can offer to lend him a few books on constitutional law to get him up to speed with the system of government we have chosen in South Africa.
But probably the stupedist thing Mantashe said related to the Constitutional Court’s judgment in which it declared invalid section 8(a) of the Judges’ Remuneration and Conditions of Employment Act. Complaining about this judgment like a spoilt child would complain about not being given another ice cream, he made the following pronouncement:
Even the judgment on the extension of the term of Chief Justice Sandile Ngcobo’s term looks very suspicious. That judgment looks suspicious from where I am seated. I’m not a lawyer, but the judgment is very very suspicious. You have a section in the law that has been there over 10 years, and at a point of extending the term of a judge, then it (suddenly) becomes unconstitutional.
Surely, one does not have to be a constitutional lawyer to know that the Constitutional Court does not have the power to declare invalid Acts of parliament unless the constitutionality of the Act is challenged by some or other party? Where parliament passes a Bill and it becomes law it remains the law until such time as someone challenges its constitutionality – in which case the Court must determine whether the Act is constitutionally valid or not. The statement quoted above is therefore beyond embarrassing.
I suspect Mantashe knows all of the above (how could he not) but that he deliberately made these statements because of frustration in the Zuma government about the many avoidable mistakes it has been making over the past year, many of which had to be corrected by the Constitutional Court. Instead of acting like a mature person and thanking the Constitutional Court for its assistance to correct sometimes quite obvious and glaring mistakes, Mantashe now petulantly blames the institution who had the task of pointing out the mistakes in the first place. Apart from being immature, this approach is also misleading the public – whether deliberately or not – and is not befitting of a senior office bearer of the governing party in a constitutional democracy.BACK TO TOP