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Professor Daniel Plaatjies’s views about the role of the judiciary in a democratic state (in this newspaper last week) is scary. He argues against what he sees as “the consequence of the sophisticated use and abuse of the judicial system to undermine democratic choices”.
“The involvement of the political governance by the executive and legislative branches is a deliberate move to asphyxiate the electoral power of the majority to sustain individual and minority civil liberties and rights,” he says.
Plaatjies is a man of letters. He shouldn’t be easily dismissed as a former academic with a penchant for the gravy train. I often remind the judicial fundamentalists to heed former Constitutional Court Judge Kate O’Regan’s caution against what she termed jurisprudence of exasperation. This is a tendency, according to an Indian commentator, “to reach decisions or make statements that are an expression of judges’ exasperation with the state of affairs in the country, rather than on the basis of “carefully thought-out arguments based on the law’s possibilities and limits”.
Therefore, Plaatjies should be understood within this context.
All the three arms of state are very powerful and warrant the same amount of checks.
However, Plaatjies is the extreme opposite of what I call judicial fundamentalists - those who believe in the infallibility of the judiciary.
The judicial fundamentalists are as dangerous as the other extremists who equally believe in the authoritative popularity of the executive and the legislature by virtue of being voted by the majority.
While Plaatjies, correctly so, pointed to Judge Dennis Davis’s warning against bringing every political dispute to the courts, he conveniently forgot about the fundamental tests of any democracy.
The role of the Constitutional Court – contrary to the views of Plaatjies and President Jacob Zuma - is not to contest state power with the executive, but to give meaning to the principles of constitutionalism.
Not only does constitutionalism mean limiting the powers of the politicians, but also the powers of the judiciary. Neither courts nor judges can act in breach of the constitution. The procedure and content of their decisions are still subjected to the similar tests applied against legislative and executive decisions. The Concourt, for instance, overturned the decision of the Pretoria High Court on e-tolls, arguing that the latter court overstepped its mandate.
Therefore, Plaatjies’s and Zuma’s assertion that the judiciary is usurping the powers of the executive is based on what former Concourt Judge Zac Yacoob perceived as paranoia by either arm of the state.
Plaatjies must also remember that the executive and legislatures, unlike the judiciary, can be voted out of power – unless he believes in Zuma’s second-coming theory of eternal rule. We cannot therefore expect the sovereignty of this country to be delegated back to the ideologically messed-up politicians, nor entrusted in paranoid judges.
I would like to remind Plaatjies that while Paul Kruger, former president of the Zuid Afrikaanse Republiek, believed that his state was democratic, he once fired his chief justice when the courts tested and disproved the raad’s flawed legislative procedure. His argument was that the majority of voters (whites) gave him and the raad an indisputable mandate to legislate.