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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 Mpumelelo 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 Fronemen - who have served 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 up with any issues they have against him, except that he is young and inexperienced.
But there is an advantage that he is younger - he will serve longer and thus help to stabilise the institution.
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.
Unless this issue is addressed it's going to cause instability. It undermines the other arms of government .
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.
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 aspersions 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's 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. You have a section in the law that has been there for over 10 years, and at a point of extending the term of a judge, then it (suddenly) becomes unconstitutional.
When you look at that judgment you ask yourself whether the judges who sat on that bench were not interested parties in the appointment of a new chief justice. Where does that line end, when you sit and be a judge in an area that benefits you?
MM: Judge Mogoeng was part of it.
GM: Yes, but I 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 to invite other judges to form the bench and have all (the current) judges recuse themselves?
MM: Do you want to establish that regime?
GM: It is there already, you can bring other judges when those judges are conflicted. It seems as if all of them sat in judgment to make sure that they take over quicker.
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 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). We have a bigger problem in the country. The worst thing that can happen is if Parliament gets flat-footed.
We are getting close to a situation where Parliament drafts legislation and refers it to the Constitutional Court before passing it.
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 will overturn anything passed by Parliament, (that will) make nonsense of the democratically elected Parliament.