Mantashe's ConCourt remarks scandalous: DA

2011-08-18 21:57

Cape Town - ANC secretary general Gwede Mantashe has insulted Constitutional Court judges and should be repudiated, the DA said on Thursday.

Mantashe's observations on the Constitutional Court, made in an interview with Sowetan editor Mpumelelo Mkhabela, were "simply scandalous", Democratic Alliance spokesperson Dene Smuts said.

"They take us back to the point when he accused judges of being counter-revolutionaries. He has insulted the independence, impartiality, and integrity of the Constitutional Court judges.

"He strikes at the heart of the constitutional order under which the courts must uphold the supremacy of the Constitution... by suggesting that there is a dangerous trend towards 'hostility' on the part of the court towards the other arms of state.

"President Zuma and Justice Minister Jeff Radebe should repudiate him and tell him to shut up," Smuts said.

Congress of the People leader Mosiuoa Lekota called Mantashe's assertions "ill-considered and extravagant in the extreme".

Established practice

The independence of the judiciary was established in the Constitution to strengthen the democratic order, he said. It did this by ensuring the other arms of government, especially the legislature, made law consistent with the Constitution as written and adopted by Parliament.

"As such the court does not uphold law which appeals to its fancy, but one that complies with the national Constitution."

Therefore, where law in conflict with the Constitution was adopted, the judiciary was required to dispassionately rule it null and void.

"This is not a peculiarity of the South African constitutional arrangement; rather it is established practice in all democracies," Lekota said.

In the interview, Mantashe said, among other things, 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".

Slippery road

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.

- SAPA