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Constitutional Court Justice Edwin Cameron says the Constitution has not been an unparalleled success but it remains South Africa’s “best hope”.
Cameron was speaking at Wits University’s School of Law as part of its series of lectures entitled “In Conversation with the Judiciary” last night.
Cameron said: “After 20 years I think we can look back with some grief, some sadness but also with a measure of sober realism about what the Constitution has done in the last 20 years.”
Cameron said the Constitution hadn’t been an “unparalleled success”.
“(The Constitution) hasn’t achieved what those of us meeting 25 years ago about various constitutional plans at the time hoped it would achieve.
“We are a sadder, more realistic nation ... a sadder more realistic cadre of judges, but I think the Constitution has proven itself in enough areas to say that it has done part of its job and it’s our best hope for it to do the rest of its job,” he said.
He said a key feature of South Africa’s Constitution was the fact that it “employs legal and political power in order to achieve social justice”.
“In South Africa, for very particular reasons relating to the apartheid legal system, the nature of our transition (to democracy) and the geopolitical factors that took place at the time of our transition, everyone agreed that the basis of our transition as a country, as a nation, as a people should be about the law, embodied in a strong Constitution that was above Parliament, above the executive, above all people who wield power, including corporations and private persons and above the judiciary,” he said.
Attorney Themba Langa, who was on the panel with Cameron, said that while the Constitutional Court should be praised for the good work it had done, it was sometimes “willy-nilly” on issues related to the executive and the legislature.
“You guys seem to be too flexible on particular issues that have to do with executive and that is compromising us.
“It is not something desirable as a lawyer to be faced with the difficulty of (not knowing) what the Constitutional Court is going to do with regard to a particular issue,” he said.
Langa raised the Consitutional Court’s judgment in the Menzi Simelane case, where it ruled that President Jacob Zuma’s appointment of Simelane as NPA head was unconstitutional, as an example.
He said that the court had created a new set of prescriptions for the appointment of an NPA head and did not “even get into the inquiry of whether the president exercised his mind on the matter before him”.
Langa said that the court had elevated the findings of the Ginwala Commission of Inquiry into whether former prosecutions head Vusi Pikoli was fit to hold office, to findings of fact.
“For all I care, the outcome of the Ginwala Commission is an opinion. It’s not a court order, it’s an opinion that is not even higher than that of a senior counsel,” said Langa.
Cameron replied that the decision was an important one, which was based on the commission’s record that had been put before the Constitutional Court.
“When the president exercises a very important power, which is to appoint the head of a chapter 9 institution, which is meant to preserve constitutionality and democracy, the head of the National Prosecuting Authority, we’re not going to say who he must choose, we’re not even going to say whether this choice is right or wrong, but we are going to say ... he must go about it in the right way.
“When he ignores a public commission, which shows disturbing evidence of lack of truthfulness, falsity and lack of probity, he hasn’t gone about it the right way,” said Cameron.
