State, judges agree to disagree politely

27/08/2015 Chief Justice Mogoeng Mogoeng and Deputy President Cyril Ramaphosa greet while President Jacob Zuma looks on durinh his meeting with judges and other judicial officers at the Union Buildings. Picture: Phill Magakoe

27/08/2015 Chief Justice Mogoeng Mogoeng and Deputy President Cyril Ramaphosa greet while President Jacob Zuma looks on durinh his meeting with judges and other judicial officers at the Union Buildings. Picture: Phill Magakoe

Published Aug 28, 2015

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Pretoria - The government and the judiciary have acknowledged the potential damage caused by their public spats that have seen judges being accused of being externally influenced to reach certain judgments.

Following a seven-hour, unprecedented meeting between the country’s top judges and members of cabinet led by President Jacob Zuma and Chief Justice Mogoeng Mogoeng, the two arms of the state have agreed to exercise caution when criticising each other.

Zuma and Justice Mogoeng have described recent tension between the judiciary and the executive as indicative of South Africa’s healthy democracy.

Justice Mogoeng denied claims that judges tended to overreach by delving into the political and policy sphere, though he welcomed the criticism.

Both parties have dismissed notions that such tensions are indicative of a constitutional crisis, especially after the matter involving Sudanese President Omar al-Bashir, where the government ignored a court order to ensure he did not leave the country.

The judiciary has in recent times faced serious attacks from some cabinet ministers and leaders of the ANC and its alliance partners, who have claimed they are biased against the government and the ruling alliance.

According to Zuma, the meeting agreed on their mutual respect for the separation of powers and the integrity of both the executive and the judiciary.

“We agreed to exercise care and caution with regard to public statements and pronouncements criticising one another.

“Failure to do so will undermine the global status of the republic as a bastion of democracy, tolerance, human rights and the rule of law,” said Zuma.

According to the president, the meeting had helped to further open the lines of communication between the two, which would culminate in regular interactions.

“We acknowledged the historic nature of this meeting, which is the first of its kind in our democracy. The meeting has contributed to the strengthening of our constitutional democracy.

“It is our conviction that such interactions can only advance and deepen our constitutional democracy,” said Zuma.

The meeting also agreed that where “judges are seen to have conducted themselves unethically, other arms of state, entities or members of the public should make us of the structures set up to address such concerns”.

Justice Mogoeng said he would be extremely worried if judges were never criticised or questioned, but raised concerns about the manner in which this was done. “We do not have a problem with being questioned; it is the manner of the questioning which concerns us,” he said.

He added that there were many other constitutional democracies where there were serious tensions between the head of state and his cabinet and the judges.

“There would be very serious tensions, but that is because people are doing what they are supposed to be doing.

“What we do not want is for criticism to linger without the matters being addressed.

“This criticism about judicial overreach bears testimony to the vibrancy of our democracy,” Justice Mogoeng added.

Among the commitments made at the meeting was that “court orders should be respected and complied with”.

While the two parties appear to have smoked the peace pipe, fundamental difference are set to be brought to light by the ongoing case where the government is seeking to appeal against the Bashir judgment, where it was strongly criticised for not obeying a court order.

Judge Dunstan Mlambo, who made the judgment against the government, was also part of the high-level meeting yesterday.

Transformation of the judiciary and the legal profession were also identified as being at the heart of the country’s constitutional democracy, with concerns being raised that there was a perception that the poor were in most cases not able to access justice.

“As judges, we are the ones who go to every length to ensure that, for instance, people who cannot afford legal representation do get it, and receive access to justice,” said Justice Mogoeng.

He added there was absolutely no constitutional crisis at play.

“This is not a moment of crisis, it is a moment of deep reflection and introspection,” said Justice Mogoeng.

The executive was represented by members of the cabinet, namely Deputy President Cyril Ramaphosa, Justice Minister Michael Masutha and his deputy John Jeffery, Science and Technology Minister Naledi Pandor, Human Settlement Minister Lindiwe Sisulu, Environmental Minister Edna Molewa and Co-operative Governance Deputy Minister Andries Nel.

The judiciary was represented by Justice Mogoeng, Deputy Chief Justice Dikgang Moseneke, Judge President Lex Mpati of the Supreme Court of Appeal, Justice Mohamed Navsa and judge presidents John Hlophe, Diale Kgomo, Monica Leeuw and Mlambo.

Pretoria News

* Read the full statement on the meeting of the national executive and the judiciary here .

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