MOFFET MOFOKENG, GEORGE MATLALA AND DIANNE HAWKER
Deputy Chief Justice Dikgang Moseneke has again annoyed politicians by saying government’s failure to implement judgments in favour of the poor “remains a constant threat to our constitutionalism”.
Justice Moseneke said the Constitutional Court, and not the government, has been at the forefront of championing the rights of the poor, but his “narrow but serious” concern was “the tardiness of government institutions in implementing court orders promptly”.
In a lecture at Georgetown University in the US recently, Justice Moseneke said: “The suggestion that courts stand in the way of transformation, in my view, is mischievous and totally opportunistic.”
The Sunday Independent was reliably told that Higher Education and Training Minister Blade Nzimande and President Jacob Zuma have raised concerns regarding the tone of Justice Moseneke’s lecture.
They expressed their concerns soon after Judge Bill Prinsloo interdicted the SA National Roads Agency Ltd from implementing the e-toll system two weeks ago, prompting some ministers to say they were worried that the judiciary was governing the country.
Last year, Nzimande reportedly said SA was in danger of becoming a “judicial dictatorship” after the Supreme Court of Appeal set aside Zuma’s decision to appoint Menzi Simelane as national director of public prosecutions.
Zuma, who made it clear three years ago that he would not make Justice Moseneke chief justice because of the judge’s comments about Polokwane-ANC leadership, apparently was concerned that the deputy chief justice was playing politics. Earlier this year, the president also said the powers of the Concourt should be reviewed.
Justice Moseneke’s speech was similar to a speech former chief justice Arthur Chaskalson delivered at a public dialogue in Cape Town this week.
Yesterday, Zuma, through spokesman Mac Maharaj, evaded questions about his concerns regarding Justice Moseneke’s speech.
Instead, he said Justice Moseneke’s views “will enhance the debate that is guided and structured” around the government’s paper on judicial review.
“The president is of the view that former chief justice Chaskalson and Deputy Chief Justice Moseneke made their observations in the spirit of enriching debate, consolidating democracy and strengthening our democratic institutions,” Maharaj said.
In his lecture, Justice Moseneke painted a picture of a hostile relationship between the executive and the judiciary.
He said the current skirmishes “over whether the courts are reactionary or counter-revolutionary and thus stand in the way of transformation… are baseless and unfortunate, and in my view, at best they are transitory”.
ANC secretary-general Gwede Mantashe once described judges as counter-revolutionary and portrayed two black judges as apartheid apologists.
Justice Moseneke said the recent proposed review of “our jurisprudence” and accusations of an untransformed judiciary veered “towards blaming not state inaction or ineffective economic policies, but the constitution itself for the deepening poverty and inequality”.
Earlier this year, Justice and Constitutional Development Minister Jeff Radebe announced a review of the judiciary, in which the government intends to look at the transformative effect of judgments on ordinary people.
Justice Moseneke said: “Constitutionalism in South Africa has undoubtedly and commendably taken a pro-poor stance, which was to be expected, though it is often the Constitutional Court that has been at the forefront of this rather than government itself.”
SACP spokesman Malesela Maleka, speaking for Nzimande, said issues raised by Justice Moseneke remained “under scrutiny”.
“There is a judicial review process under way for the good of our country, and the working class conducting the debate on a basis of us against them is not any helpful,” he said.
Maleka would not comment on the concerns Nzimande raised on Justice Moseneke’s lecture.
Nzimande’s government spokeswoman, Vuyelwa Qinga, could not be reached for comment.
Justice Moseneke and Mantashe could not be reached for comment yesterday.
In his speech Justice Moseneke said:
“Judgments show that courts have insisted on the rule of law and on executive transparency and accountability. They have protected and upheld freedom of expression alongside privacy and human dignity. Lastly, it is the courts that have repeatedly warned that the scourge of public corruption and patronage will ultimately imperil the war against poverty, disease and equality.”
He cited the case of Irene Grootboom in 2000, a destitute and homeless resident of Kraaifontein in Cape Town.
At the time, the government’s housing policy did not cater for homeless people. The Concourt found that she and others living on an open sports field could not be evicted without the government finding alternative accommodation.
“Mrs Grootboom, of the celebrated socio-economic rights decision in which the state was ordered to provide her with adequate housing, died several years later, before the house was provided.”
Moseneke said there were several cases that had political implications, including the cases involving Zuma, and his former financial adviser Schabir Shaik. He said it was inevitable that the courts and the executive would clash because the judiciary is required by the constitution to police the government.
Judge Chaskalson, speaking in Cape Town, echoed Justice Moseneke’s speech by saying the government could be blamed for any potential threats to democracy.
“(The danger to the constitution) is in poverty and inequality in our society, and the corruption, poor education and related challenges identified by the National Planning Commission.”
He said the growing number of service delivery protests were a concern because they would intensify “if the root causes are not addressed”.
“And if that happens, a temptation to curtail rights and to exercise control through authoritarian means cannot be excluded.”