ConCourt used as opposition
Cape Town - The Constitutional Court is being used as an "opposition" to the ANC-led government and opposition to President Jacob Zuma's nomination of Judge Mogoeng Mogoeng as chief justice is misplaced, ANC secretary general Gwede Mantashe said on Thursday.
In an interview with Sowetan editor Mpumelelo Mkhabela, Mantashe said Mogoeng - who was appointed to the Constitutional Court in October 2009 - had been a judge since 1997.
"There are only two judges in the Constitutional Court, Edwin Cameron and Johan Fronemen, who have served longer than him. This thing of Mogoeng being a junior does not hold water. It is not factual," Mantashe said.
The second thing was that everyone who had criticised the nomination had not come up with any issues they had against Mogoeng, except that he was young (50) and inexperienced.
"But there is an advantage that he is younger, he will serve longer and thus help to stabilise the institution."
Mantashe said there were "many things happening in the judiciary that will only be seen in 10 years time".
"One of the things that is dangerous, the independence of judiciary and separation of powers must never be translated into hostility, where one of those arms becomes hostile to the other.
"Unless this issue was addressed it was going to cause instability. It undermined the other arms of government."
Asked whether he meant instability in the judiciary, Mantashe said: "No, instability in government. You can't have a judiciary that seeks to arrest the functioning of government."
On whether judges were positioning themselves as an opposition, he said one had to "look at some of the judgments of the Constitutional Court".
The Glenister case - in which chapter six of the SA Police Service Act as amended, which enabled the disbanding of the Scorpions and the formation of the Hawks, was declared constitutionally invalid - was an example.
"That judgment itself seeks to cast aspersions on the work of Parliament," he said.
"Yes, it seeks to make the Hawks independent - fine, we will implement that - but once you have that kind of judgment that ventures into political weighting of views, then it's a slippery road we have embarked on.
"Even the judgment on the extension of the term of [former] chief justice Sandile Ngcobo looks very suspicious.
"Every time there is legislation that passes through Parliament - for example the [draft] Protection of Information Bill - there is a threat that it will be taken to court and the court might position itself emotionally to reverse it. That's a problem.
"The worst thing that can happen is if Parliament gets flat-footed. We are getting close to a situation where Parliament drafts legislation and refers it to the Constitutional Court before passing it."
Asked whether it was not the right of the court to adjudicate on the constitutionality of laws, Mantashe said that was not a problem.
"It's about how that right is exercised. If the Constitutional Court positions itself to create a perception that it will overturn anything passed by Parliament, [that will] make nonsense of the democratically elected Parliament," he said.