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FULL INTERVIEW: ANC’s Mantashe lambasts judges

By Mpumelelo Mkhabela | Aug 18, 2011 | COMMENTS [ 6 ]

Here is a transcript of Sowetan Editor Mpumelelo Mkhabela's interview with ANC secretary-general Gwede Mantashe, in their own words

ANC secretary-general Gwede Mantashe has come out guns blazing, taking issue with the criticism levelled at President Jacob Zuma’s decision to nominate Judge Mogoeng Mogoeng as Chief Justice.

In an exclusive interview with Sowetan Editor Mpulelelo Mkhabela, Mantashe warned that the Constitutional Court was being used as an opposition to the ANC-led government.

Question - Mpumelelo Mkhabela: What’s the single biggest justification the ANC sees in the appointment of Mogoeng Mogoeng as a Chief Justice?

Answer - Gwede Mantashe: Let’s start from point of principle. Mogoeng has been a judge since 1997. There are only two judges in the Constitutional Court – Edwin Cameron and Johan Froneman - who have served as judges longer than him. This thing of Mogoeng being a junior does not hold water. It is not factual.

The second thing is that everyone who has criticised the decision of the president has not come out with any concrete issues they have against him, except that he is young and he is inexperienced. But there is an advantage that he is younger, He will serve longer and thus help to stabilise the institution. It is important to note that any judge can be appointed as a chief justice. So it’s wrong for you to vouch for a particular judge, like you did with Moseneke. The president could have appointed any judge. You could have taken any judge president from the provincial Benches.

We are on a slippery slope...

MM: You seem to have serious concerns about the working of the judiciary. What’s the problem?

GM: There are many things happening in the judiciary that will only be seen in 10 years time. one of the things that is dangerous: The independence of judiciary and separation of powers must never be translated into hostility, where one of those arms becomes hostile to the other. My view is that there is a great deal of hostility that comes through from the judiciary towards the executive and Parliament, towards the positions taken by the latter two institutions. Unless this issue is addressed deliberately it’s going to cause instability. It undermines the other arms of government and this could cause instability.

MM: You mean instability in the judiciary?

GM: No, instability in government. 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).

Constitutional Court judges driven by selfish interest...

MM: Do you think judges are positioning themselves as an opposition?

GM: You will have to look at some of the judgments of the Constitutional Court.

MM: Are you referring to the Glenister/Scorpions judgment, because the ANC had resolved to (disband the Scorpions and the Constitutional Court took a different view?)

GM: Yes, but that’s not the only one. That judgment itself seeks to cast aspersion on the work of Parliament. Yes, it seeks to make the Hawks independent – fine, we will implement that – but once you have that kind of judgment that ventures into political weighting of views, then it means it’s quite a it’s quite a slippery road we have embarked on. 

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. Fine, but when you look at that judgment, you begin to ask yourself, whether the judges who sat on that Bench were not interested parties in the actual appointment of a new chief justice. Where does that line stop, when you must sit and be a judge in an area that benefits you?

MM: Judge Mogoeng was part of it.

GM: Yes, but am talking in terms of principles – whether the judges who sat in the case were not (potential) beneficiaries of their own judgment. Wouldn’t it have served justice better by inviting other judges to form the bench and have all (the current) judges recused themselves?  

MM: Do you want to establish that regime?

GM: Is there already, you can bring other judges when those judges are conflicted. For me it seems as if all of them– who are in the line of succession - sit in judgment to make sure that they take over quicker. For a lay person like me, it seems as if they accelerate the exit of the sitting chief justice so that they can take over quicker. 

Judges threaten stability of government...

MM: Which other judgment worries you? Are you supporting the president’s argument that it is wrong for judges to overturn legislation passed by parliament?

GM: Every time there is a legislation that passes through Parliament – for example the Protection of Information Bill – there is a threat that it will be taken to court and the court might position itself emotionally to reverse it. That’s a problem.

MM: But the court has not said so...

GM: I am making a point (of principle). You must appreciate that we have a bigger problem in the country. The worse think that can happen is if Parliament gets flat-footed. Actually, we are getting close to a situation where parliament drafts legislation and refers it to the Constitutional Court before passing it. 

Courts used to undermine Parliament...

MM: Is it not the right of the court to adjudicate on the constitutionality of laws?

GM: 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 fine. It’s a good judgment. But I am saying, look at the trend. The reality of the matter is that transformation is painful, and if people use the court to resist transformation, then there will be a problem in society.

Courts could be seen as ANC opposition...

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 (where the ANC is a majority). But we have this highly verbalised perception of an ANC that is reckless that must be resisted. Then you find institution institutions – opposition parties, civil society groups and others – who seeks to oppose the ANC. They are using the court to execute that opposition.

Secondly, you have people who want to taint the history of the struggle and want to equate the struggle for freedom with apartheid and in the process pretend as if apartheid never existed. It is issues like demographic composition of institutions and issues of affirmative action in the workplace. If you take all those cases and and the role of AfriForum, you will realise it is about reversing the gains of transformation, using the courts.

Opposition to new Chief Justice is racist...  

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 appointment to 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 the 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 - activists or conservative?

GM: The court must always be seen to be fair. There must be no perception of judgments being tainted in political language. For example, you have analysed Moseneke as a PAC. And that’s unfortunate. If that’s what is tainting him and that’s how he is seen, then 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 [activists or conservatives]. 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 do you think is the solution?

GM: I think 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.    

COMMENTS [ 6 ]

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Was this Gwede person sober when this interview was done??? Check the last question and his answer, Mogoe-Mogoe LOL!!!

Aug 18, 2011 2:38 | 0 replies

Profit, you seem to be having a serious problem of understanding the ELNGLISH language. If you are asked a simple question like the one you reffered to, you answer it in that simple format which is YES or NO. What more do you want? Its time for the judiciary to absolutely take a transforming sharp curve. The ConCourt must begin to chage its way of conducting their business because we did not create this structures to be counter or opposition to the revolution. ConCourt, we all know that is a fact, is being used by the DA, Freedom Front and other right wings forces to fight our democratically election and progressive government. A thing that might happen if the Judiciary continues to misbehave and be used as a tool by the oposotion - "Forcefull Transformation" by the ruling party.

Aug 18, 2011 2:59 | 0 replies

The JSC is dominated by conservatives and reactionaries who hide behind " In defence of the constitution" notion. As part of the broader society they too should be transformed and this includes penetration by women in the judicial system.
Consultation of the opposition by the president in appointing top judges does mean seeking permission.

Aug 18, 2011 3:44 | 0 replies

ShawnM

How do you reason? The ConCourt cannot be seen as counter revolutionary as it does not have the power to institute action against parliament itself?!

Such action has to be instituted by ANOTHER party. By this I mean a group of people, a political party, or an individual may approach the court to question any act of government. This is known as the notion of accountability. The seperation of powers between the executive, the legislature, and the judiciary requires these 3 spheres of government to hold each other accountable. This is enshrined in the Constitution.

Therefore, how can you say the court is undermining government? It is merely testing legislature passed by government(when someone refers it to them) against constitutional principles(unless you have forgotten, the constitution is the supreme law of the land). If the said law is contrary to the constitution, the ConCourt must declare such law null and void or amend the relevant clauses in the law.

Are you suggesting that parliament be the supreme power in SA? Then you would be supporting parliamentary sovereignty, which is the system which was used by the Apartheid government to suppress millions.

So... are you advocating reverse apartheid??

Aug 19, 2011 7:49 | 0 replies

Dear Gwede

I can only hope that you were having a bad day when interviewed. 

The ANC is better than this, we fought long and hard to craft a constitution that would protect all South Africans from a repeat of the past. We wanted to prevent the abuse of power and eliminate the needs of the few over the needs of the many. Separation of powers where the Judiciary checks the Executive and Parliament against a Constitution is very necessary to prevent us returning to the ugliness of the past. 

Fighting corruption at all levels in society prevents the abuses of the past and is part of the transformation of our society from a bully led government, to one built on tolerance and mutual respect for each and every South African, hereby creating a winning nation that will make the world stop and stare and wonder at the beauty of what South Africans have achieved. Dividing us, only plays directly into the hands of those who would love to see us fail.

Have a beautiful day

Bob (Hugh) Glenister

Aug 19, 2011 8:25 | 0 replies

A couple of points. Firstly the legal system has an inherent bias towards those who have the capacity and resources to launch and sustain legal challenges up to the highest level, concourt. This effort involves millions of rand. The poor therefore are not necessarily beneficiaries here. Instead the previously advantaged have found a fertile arena to further their agenda in this legal system where money counts. This is in the context, we should always remind ourselves, of the most unequal society in the world. Politics are increasingly being driven by elites. Gwede's concerns are valid as a result of this inherent bias. Until the legal system functions as a truly level playing field and actually becomes accessible to the people, then it is inevitable that it will reflect the elite's power chess games similar to the Republican/ Democratic politics of the US.

Secondly, the caution Gwede is raising about a slippery slope should be looked at in a broader context. We should be alert to the role of the ICC which, in my view, is launching an 'extrajudicial' strategy in the continent whereby it, an unaccountable body, seeks to control and define 'justice' in the continent and set an agenda for resolution of African conflicts. The hypocrisy is stunning. The West has not accounted for the myriad conflicts it has engineered around the world. The Mau Mau case is one in point. When will the ICC put Bush and other past and current leaders on the stand in the Hague to account in a court of law for the collateral killings of Afghani wedding guests?

The unspoken dilemma in the debate about elite politics is the absence of and / or suppression of 'popular forces' around the continent. Our movements for transformation and liberation have in the African peoples experience been co-opted. Gwede to paraphrase you, two things (can) happen when you walk into an institution (like the state): you can either transform it or it will transform you. (Governments) either voluntarily comply (with the status quo) or get subjected to what I call malicious compliance, where they say the rules (of the global capital markets and the Washington Consensus) don't allow them to change.

Its about time that we articulate a theory and practice for the genuine transformation and development of our people. The rich history of African liberation politics should be revived, reread and popularised. We need to sit down, evaluate and mobilise ourselves. African leaders should not view this with suspicion because it is an urgent necessity. Rightly we should guard against any agenda that seeks to divert and subvert this. The problem with elite and palace politics is that it is always couched in conspiratorial and sensationalist terms. This theater of the spectacle is in itself a diversion from our needs. We who are in a position to put aside division and diversion should do so. Else we stand accused of fiddling with our middle class consumerist status symbols while millions of African people burn alive in unnecessary famine and war.

Aug 19, 2011 1:42 | 0 replies