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'Judiciary must be de-politicised'

This is the second and final instalment of editor Mpumelelo Mkhabela's interview with ANC secretary-general Gwede Mantashe about the courts

MPUMELELO MKHABELA: Is it not the right of the Constitutional Court to adjudicate on the constitutionality of laws?

GWEDE MANTASHE: It's not a problem. It's about how that right is exercised. If the Constitutional Court positions itself to create a perception that it overturns anything passed by Parliament, it is going to make nonsense of the democratically elected Parliament.

Look at the kind of people taking matters to the Constitutional Court. It is people like Paul Hofmann, Hugh Glenister, AfriForum and many others.

All these are people and institutions resisting transformation in society. They are beneficiaries of the past regime. They use the courts to overturn any progress made that is transformative in society.

MM: What about the Grootboom case (in which the Constitutional Court helped the poor by forcing the government to build houses for the poor)?

GM: The Grootboom case is a good judgment. But the reality of the matter is that transformation is painful, and if people use the courts to resist transformation there will be a problem in society.

MM: You are suggesting the Constitutional Court is being used to block transformation. What are the transformation issues that the court is blocking?

GM: We have a democratic Parliament (in which the ANC is a majority). But we have this highly verbalised perception of an ANC that is reckless and must be resisted.

Then you find institutions - opposition parties, civil society groups and others - who seek to oppose the ANC. They use the courts to execute that opposition.

Secondly, you have people who want to taint the history of the struggle and equate the struggle for freedom with apartheid and in the process pretend as if apartheid never existed.

It is issues such as demographic composition of institutions and affirmative action in the workplace that are challenged. If you take all these cases and the role of AfriForum, you will realise it is about reversing the gains of transformation, using the courts.

MM: Here is a challenge: how has this come about because the composition of the JSC, which recommends the appointment of judges to the president, has always been populated by people sympathetic to the ANC?

GM: If you look at the composition of the judiciary itself you can see the (demographic) change. But the outcome will not change immediately. There is a time-lag between the appointments and the change (in jurisprudence). The opposition to the appointment of (Judge Mogoeng) Mogoeng is a racist argument because people say we must appoint experienced judges who have been there long before 1994.

MM: The black and female judges, don't you think they have succeeded in changing jurisprudence?

GM: Two things happen when you walk into an institution: you can either transform it or it will transform you. Change can take time. That's what happens in a big institution like the judiciary.

Others comply (with the status quo), others get subjected to what I call malicious compliance, where they say the rules don't allow them to change.

MM: What's your position about the ideological look of the court - activist or conservative?

GM: The court must always be fair. There must be no perception of judgments being tainted in political language.

For example, you have analysed (Judge Dikgang) Moseneke as PAC. And that's unfortunate. If that's what is tainting him and that's how he is seen, we are in trouble.

MM: I don't think that's tainting him. The JSC has always considered contribution in the struggle.

GM: I don't think the court should be described in those terms (as activist or conservative). We can only talk about specific judgments that come through.

MM: Do you really think that some of the judges want to reverse the transformation gains? You have made comments in the past about judges being counter-revolutionary. People will say you are at it again. Is it really about judges reversing the (democratic) gains?

GM: Judges do reverse the gains. They reverse the gains of transformation through precedents.

MM: Do you think that's what is happening?

GM: Yes, that's what is happening.

MM: What is the solution?

GM: The judiciary must depoliticise itself. It must not fear the ANC because it is the ruling party.

MM: So it must be independent?

GM: Yes, it must be independent.

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