Courts can't be superior, Zuma says

2011-11-01 20:01

Cape Town - The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote, President Jacob Zuma said on Tuesday.

It was necessary to distinguish the areas of responsibility between the judiciary and the elected branches of the state, he told a joint sitting of the National Assembly and National Council of Provinces.

The special sitting was called to bid farewell to former chief justice Sandile Ngcobo, and to welcome Chief Justice Mogoeng Mogoeng.

"In paying tribute to our former and current chief justice, we reiterate our firm belief in the principles of the rule of law, the separation of powers, and judicial independence," Zuma said.

"Having said that, we also wish to reiterate our view that there is a need to distinguish the areas of responsibility, between the judiciary and the elected branches of the state, especially with regards to policy formulation."

The executive, as elected officials, had the sole discretion to decide policies for government, he said.

The principle of separation of powers meant the encroachment of one arm of the state on the terrain of another should be discouraged, and there should be no bias in this regard.

"We respect the powers and role conferred by our Constitution on the legislature and the judiciary," Zuma said.

"At the same time, we expect the same from these very important institutions of our democratic dispensation."

The executive should be allowed to conduct its administration and policy-making work as freely as it possibly could.

The powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote, Zuma said.

To provide support to the judiciary and free the courts to do their work, it would help "if political disputes were resolved politically".

"We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections," Zuma said.

"This interferes with the independence of the judiciary."

Allegiance to the Constitution

Speaking towards the close of the sitting, Ngcobo said no branch of government was superior to others in the service of the Constitution.

The Constitution was a "promissory note", he said.

"It is a promise of a new society that is based on democratic values, social justice, and fundamental human rights."

The people of South Africa had entrusted the responsibility to establish this society to the three branches of government.

Each branch of government thus had to observe the constitutional limits on its powers and authority.

"There is no branch that is superior to others in the service of the Constitutional mission of the Republic," Ngcobo said, be it the judiciary, the legislature, or the executive.

In addition to ensuring they observed the constitutional limits on their powers and authority, government should seek to maintain public confidence.

In the case of the judiciary that confidence was not earned by virtue of a court being pro or anti the executive, he said.

The court did not earn the public's confidence merely by overturning legislative Acts on review or by consistently upholding them.

"It is earned by the judiciary demonstrating through its conduct and the well-reasoned judgments it produces that it holds the scales of justice evenly," Ngcobo said.

"Public confidence is earned when the judiciary demonstrates in the words of the Constitution that it is independent subject to the Constitution and the law, which it must apply impartially and without fear, favour, or prejudice."

After all, judges owed allegiance to nothing except the Constitution and the law.

"The judicial branch of government will only have the confidence of the people itself if it is truly independent," Ngcobo said.

- SAPA