Deputy Chief Justice Dikgang Moseneke Photo: Masi Losi

Cape Town - ANC treasurer-general Zweli Mkhize has launched a scornful attack on Deputy Chief Justice Dikgang Moseneke for bemoaning the vast powers accorded to the executive by the constitution.

And Mkhize raised some pertinent questions of his own about the independence of the judiciary, when he addressed a National Association of Democratic Lawyers annual general meeting in Cape Town on Friday, themed, “A crisis of conscience within ranks”.

Mkhize highlighted Moseneke’s controversial remarks, made last year, questioning the president’s powers to appoint people to top positions of public institutions.

In a scathing analysis, Mkhize said despite the many valid points the judge made, it raised serious concern whether it was appropriate for a judicial officer occupying the most senior office in another arm of the state (the Constitutional Court) to be casting doubt about a constitutional provision that related to powers of a separate but equal arm of the state (the executive).

“Will it be appropriate for the deputy chief justice to hear cases relating to the challenge of the powers he refers to, seeing that he already has an opinion formulated on the matter, long before such a matter serves in court. It would be unthinkable of a deputy president of the state to make such a statement about the extensive power of the chief justice,” he said.

And Mkhize questioned whether the remarks could possibly send a hint to some citizens on whom such powers are exercised that the deputy chief justice and other judges are ready to make rulings dismissing the exercise of such power.

“At which point should the comments be seen as political statements uttered by a senior judge, considering that it is the National Assembly, consisting of elected political representatives, whose responsibility it is to debate and vote on such powers and amend the constitution. Could his comments possibly be construed as a call for an amendment of the constitution? Seeing that they were made outside a court ruling on a matter tabled before a court of law, was it appropriate,” he questioned.

Mkhize said if politicians attacked the statement, they would probably invite accusations of undermining the judiciary.

And he criticised another remark made by the judges that at the time of the formulation of the final constitution, “whenever there was a dispute about who should appoint a public functionary, the negotiating parties were happy to leave the power in the incumbent president, Nelson Mandela”.

Mkhize said it was inconceivable that when the constitution was finalised, it was meant to suit the personality of Madiba instead of the requirements of a democratic order. “This comment creates an impression of personal preferences on incumbents determining the acceptance of a constitutional provision, which does not make sense.

“Similarly, the appointment of leading executives in institutions of government cannot be outsourced to individuals who have no mandate to manage government, thus rendering the elected leaders powerless other than to rubber stamp.”

And he said it was not appropriate to cast aspersions on the integrity of elected representatives by suggesting that by virtue of being appointed, they abandon their responsibilities.

“Maybe the deputy chief justice is correct that constitutional powers need to be reviewed. Is it then fair and logical to ask for powers of all three arms of state including the judiciary to be reviewed? What would inform us of the right time, place and conditions for a call for such a review to be justifiable?” he added.

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Cape Argus