Who will protect us?

2011-08-31 00:00

BY nominating Constitutional Court judge Mogoeng Mogoeng for the position of Chief Justice in South Africa, President Jacob Zuma has for the second time overlooked the most suitable judge for this very important office, Deputy Chief Justice Dikgang Moseneke. Moseneke is a brilliant jurist and a very experienced judge of the Constitutional Court, while Mogoeng has limited experience in the Constitutional Court and is not known as a distinguished jurist.

Zuma appears to be trying in a blatant manner to manipulate the judiciary by proposing Mogoeng for this high office.

The independence of the judiciary is an indispensable requirement for a democratic state. The reason for this is obvious since if judges can be influenced by politicians or by any other interest group, there is very little chance that the courts will be able to be an effective mechanism for the prevention of the abuse of power and the upholding of the principles and values set out in the Constitution and the Bill of Rights. Judicial independence flows from the doctrine of separation of powers which is the institutional basis for a liberal and democratic state. In accordance with this doctrine, the courts are subject only to the law and the Constitution, and no other person or institution may interfere with the functioning of the courts.

The independence of the judiciary is entrenched in the South African Constitution, which contains both a general provision that guarantees the principles of judicial independence and non-interference by other state organs, and several specific provisions relating to security of tenure, appointment, salaries, removal and the terms of office, of judges.

In our constitutional history, the independence of the judiciary has been threatened and undermined from time to time. The most infamous example occurred in the fifties in relation to the politically contentious removal of the coloured voters of the Cape from the common voters’ roll.

Section 165 of the Constitution endeavours to prevent such a situation from arising again. It states that “the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. It declares further that organs of state must assist and protect the courts to ensure their independence, dignity, accessibility and effectiveness.

It is therefore a matter of profound consternation that the ANC government and Zuma are attempting without guile to manipulate the independence and competence of the highest court in the land to ensure a compliant executive-minded judiciary by endeavouring to appoint Mogoeng as chief justice.

This could have serious and unpredictable consequences for South Africa. What is at stake are the rights and values enshrined in our Bill of Rights that need to be protected and promoted by an independent and competent judiciary.

• George Devenish is a senior research associate and a former professor of public law at the University of KwaZulu-Natal (Durban) and one of the scholars who assisted in drafting the Interim Constitution in 1993.

Join the conversation!

24.com encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

24.com publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
0 comments
Comments have been closed for this article.

Inside News24

 
/Sport

Book flights

Compare, Book, Fly

Traffic Alerts
Traffic
There are new stories on the homepage. Click here to see them.
 
English
Afrikaans
isiZulu

Hello 

Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.


Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.

Settings

Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.




Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.