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The deliberate violation of a court order by government in allowing Sudan’s president, Omar Al Bashir, to leave South Africa has focused attention on the ANC’s attitude towards the judiciary.
This follows comments by high-ranking leaders of the party who have raised the alarm that the judiciary has been “invading” the executive space.
Higher Education Minister Blade Nzimande this week said “sections of the judiciary tend to somehow overreach into areas that one would expect even in a constitutional state to tread very, very carefully”.
He told News24 that “if we don’t debate this, we run the risk of Parliament matters and executive matters being run by the courts”.
“At the heart of our concern is that we must be careful ... [that] we must not define our constitutional state as standing in contradiction to majority rule.”
Nzimande is not the only one. Chairperson of the National Council of Provinces and ANC veteran Thandi Modise and ANC chief whip Stone Sizani recently expressed similar sentiments.
Speaking during the parliamentary budget recently, Sizani warned that continued scrutiny of parliamentary process by the judiciary could lead to a “constitutional crisis”.
“In many established democracies, mechanisms exist to allow for interaction between the respective arms of government to avoid judicial encroachment in the internal arrangements of Parliament,” he said.
Modise told City Press that, as presiding officers, they had appealed to the president to convene a meeting of the three arms of state to discuss the separation of powers.
“We want to be free as presiding officers of this Parliament to use our rules, which we have agreed to, without being threatened by court actions. But you feel that at every turn you preside, somebody sits there, and is sometimes not even okay with the rules, and decides that you shouldn’t have said that. You look at some of the court judgments and I am really putting my foot in on this one … but some of the court judgments just say: ‘I know I shouldn’t be getting into this area, but I am going into it anyway.’”
Zak Yacoob, a former Constitutional Court justice, told City Press that “government has been willingly complying with the letter of the law, but not quite with the spirit.”
“What they have done in recent times, instead of embracing that duty, they have relied on every conceivable technical objection to evade responsibility. It is this attitude government allows its lawyers to take which has cast some serious doubt on government’s commitment to delivering services for its people.”
In response to Nzimande’s comments, Yacoob said: “I have examined the Constitution again and I have found no provision that says the minister of higher education has the power to determine when the line has been crossed. The minister must remember this is a power that belongs to a court and only the court.”
Activists and lawyers have pointed to a long list of cases that show a blatant disregard for court orders by state organs and government at various levels.
These include:
. In 2013, the Johannesburg metro police ignored an urgent court interdict granted by the Constitutional Court against preventing hawkers from trading in Johannesburg’s inner city; and
. In a legal battle that started in 2012, Lawyers for Human Rights (LHR) obtained an order setting aside the closure of a Port Elizabeth refugee centre. The department of home affairs ignored it. LHR went back to court for another order, which was also ignored.
In a scathing judgment the appeal court said it was a “most dangerous thing for litigants, particularly a state department and senior officials in its employ, to wilfully ignore a court order”.
