Steer clear of political judgments, Bheki Cele warns the ConCourt
Cele believes Parliament is the appropriate forum to settle the legal wrangling with AmaBhungane Centre for Investigative Journalism over the Regulation of Interception of Communication Act (Rica).
“We submit that, seen in context, the applicants’ (AmaBhungane’s) application is a challenge to the legislature’s judgment on the appropriate policy to meet the scourge of serious crime. (Late former chief justice Arthur) Chaskalson has described these judgments as being political judgments,” says Cele’s written submission filed last week.
Quoting Chaskalson, Cele described Judge Roland Sutherland’s September 2019 ruling as a “political judgment”.
In a 1997 ruling Chaskalson wrote: “It is not for a court to disturb political judgments In a democracy, it would be a serious distortion of the political process if appointed officials (the judges) could veto the policies of elected officials.”
AmaBhungane have applied to the apex court to confirm Judge Sutherland’s ruling declaring parts of Rica invalid and inconsistent with the constitution.
Cele is unhappy with Sutherland’s ruling. “While courts may interfere to ensure compliance with the constitution, we submit that the correct forum that should do so is the legislature through the parliamentary process which is structured to ensure public participation and proper ventilation of the issues.”
According to Cele, it is the executive that is best placed to deal with issues such as textual enquiries, political compromises and implementation strategies.
Cele is opposing AmaBhungane’s application to have an earlier North Gauteng High Court judgment on the constitutionality of Rica confirmed by the Constitutional Court.
The matter relates to the failure to ensure that there is pre- and post-surveillance notification by security agencies for the subjects of surveillance and the appointment of judges authorising the monitoring, among others.
In the minister’s written submissions filed last week he argues that courts do not have the power to set aside legislation because they consider it ineffective or in their opinion there are other, and better ways, of dealing with the problems.
“The interception and monitoring of communications are important aspects in the fight against crime. It is the function of the executive and legislature to interrogate and explore these issues and make a policy choice on what would be appropriate for South Africa,” read Cele’s submissions.
The lawsuit was filed after the abuse of Rica emerged when AmaBhungane managing partner Sam Sole and top prosecutor Billy Downer were spied on and the blatant lying of spies to a designated judge to intercept the communications of Independent Media investigative journalist Mzilikazi wa Afrika and Stephan Hoffstatter, formerly of the Sunday Times, under false pretext.
Cele wants the High Court order to be suspended in order for the legislature to enact remedial legislation.
“Parliament is best placed to fashion an appropriate mechanism. Such an approach we submit accords with the separation of powers principle,” he added.
Oral arguments on AmaBhungane’s application and the government’s bid to appeal Judge Sutherland’s ruling will be heard later in February.