About-turn: Concourt review to cover appeal court judgments

2012-03-28 00:00

A DECISION to include the Supreme Court of Appeal judgments in a government review of the Constitutional Court has raised concern.

In an apparent about-turn the Department of Justice has expanded its planned review of Constitutional Court cases to those of the SCA too.

This became apparent yesterday when the department issued the terms of reference for the “assessment of the impact of the decisions” of the two courts.

Dene Smuts, Democratic Alliance spokesperson for justice, said the inclusion of the SCA in the review would prompt concern when seen in light of ANC pronouncements last week.

Smuts was referring to the fact that ANC spokesperson Jackson Mthembu last week expressed “disappointment” with an SCA ruling that the decision to drop criminal charges against Jacob Zuma could be challenged in court by the DA.

Mthembu said it was “clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of state”.

Smuts said that “any serious study” would have to include the SCA, but questioned whether there was any need for a “state-sponsored” study.

Justice department spokesperson Tlali Tlali defended the inclusion, saying it was “appropriate” as the court was the highest appeal court in non-constitutional matters.

He told SABC the decision had notthing to do with the recent SCA ruling against the president.

“This decision was taken a long time ago but we had to allow and accommodate a process of finalising the terms of reference,”

Constitutional expert professor Shadrack Gutto is not convinced.

He told SABC: “It is a threat to the independence of the judiciary.

“It sends a signal to judges that if you make a judgment that questions the actions of the executive you may be investigated.

“That can send a chilling effect on judges who are not strong.”

The inclusion of the SCA is also a departure from Justice Minister Jeff Radebe’s announcement last month of what the review would entail, which limited the proposed assessment to the Constitutional Court only. The terms of reference include:

• A comprehensive analysis to establish if court decisions are reforming South African jurisprudence in line with constitutional values;

• An assessment of whether the government can afford implementing decisions;

• The costs of litigation in these courts and the effect this has on access to justice;

• An assessment of the speed with which cases are finalised in the two courts. — WR & City Press.

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