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It is “concerning” that judges – especially retired judges – get involved in litigation against the state and publicly express themselves on “outright political questions”.
In an interview, Justice Minister Michael Masutha also said that an degree of tension between the judiciary and executive – such as the tension this year after the furore surrounding Sudan’s president Omar al-Bashir – was normal.
“But there are issues that are concerning. For example when judges – especially retired judges – start taking an active role for example in civil society organisations which then initiate litigation on government on matters of policy. The lines are getting blurred.
“Whether that in the first place is constitutional or not is something yet to be tested, but we are concerned.”
He also asked if it was fair for a judge to a platform, “not in the context of him sitting on a bench and adjudicating on a matter, but taking a platform like any other politician and expressing themselves on outright political questions. Where do we draw the line?”
Former judges Zak Yacoob and Johann Kriegler took a strong stand on the rule of law earlier this year during a discussion in Stellenbosch.
Media24 reported then that Kriegler said President Jacob Zuma was using a “tyranny of the majority” to avoid the courts in connection with Public Protector Thuli Madonsela’s Nkandla report, and former Constitutional Court judge Zak Yacoob said the attacks on the judiciary should not be tolerated.
Last year, Deputy Chief Justice Dikgang Moseneke criticised Zuma during a public lecture in Pretoria, saying the president had too much executive power and that should be reconsidered.
Masutha said judges needed to be “more sensitive” to issues of the separation of powers.
“I believe all arms of state need to accord each other some degree of respect, of courtesy, and avoid making remarks that are effectively undermining of each other because that then triggers retorts and those kind of reactions which just creates conditions which could compromise confidence in our democratic order among our people.”
Masutha said everyone was entitled to have an opinion but it was not acceptable to go all out and mound a campaign to challenge government policy through litigation in particular being a retired judge”.
The Council for the Advancement of the South African Constitution (Casac) turned to the courts this year over the controversial resignation of Advocate Mxolisi Nxasana, former head of the National Prosecuting Authority, as well as the suspension of Robert McBride, head of the Independent Police Investigative Directorate.
The organisation also turned to the Constitutional Court in an attempt to join the EFF’s Nkandla matter, but the request was turned down.
Two former judges in the Constitutional Court, Kate O’Regan and Yvonne Mokgoro, are honorary members of Casac.
The organisation Freedom Under Law also challenged the government in court over some controversial decisions.
Kriegler, a former Constitutional Court judge, is chairperson of the Freedom Under Law’s board.
