ConCourt used as opposition

2011-08-18 15:23

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.

  • Wicky - 2011-08-18 15:33

    Thats probably because everything you do goes against our constitution you douche!

      umlaut - 2011-08-18 15:43

      Yes -one can't believe the way they think-the constitution is a guide and now they see it as the opposition. So NOW WE KNOW the anc doesn't want to do anything according to the constitution. They must therefore resign as a government acting against their own constitution. Imagine PRES OBAMA STATING THAT,-- HE WILL BE COURT MARSHALLED BY THE USA HIGH COURT.

      AK-Tshepo-47 - 2011-08-18 15:48

      Well we have our man in there now so i can see many decisions going the ANC's way from now on

      Pictureof - 2011-08-18 15:49

      Ye AK Idiot, your mans in there , it will be broken or bankrupt shortly

      myancmyfutur - 2011-08-18 15:51

      Go through the whole story or check sowetanlive before you comment.

      Thor - 2011-08-18 15:53

      So tshepo you just confirmed you dont care about right or wrong as long as the anc wins. you poor primative person. It must be sad knowing you will never catch up to the rest of the world you so hate. you confirm every day you are closer to a primate than a human.

      Neil - 2011-08-18 15:57

      @Gwede Mantashe: Because they OPPOSE corruption.. Simple as that you Nit Wit. I am glad your fat little ANC smug pavement special faces are not smiling anymore. Karma is a b*tch. Not so nice when the snow-ball you started can't be stopped hey? I hope this snow ball takes the lot of you OUT!

      AA - 2011-08-18 16:00

      Yes but listen to messages from the ANC about justice and the ConCourt. Expect the ANC to change the constitution soon enough. Thats what they do whenever things do not go their way.

      Thor - 2011-08-18 16:11

      I say again since you have only replied with your vision - So tshepo you just confirmed you dont care about right or wrong as long as the anc wins. you poor primative person. It must be sad knowing you will never catch up to the rest of the world you so hate. you confirm every day you are closer to a primate than a human. PS I dont really care what you do. I can go. You can't.... HAHAHAHAHAHAHAH Starve you bastard starve....

      ANDREW - 2011-08-18 16:14


      youthofsa - 2011-08-18 16:15

      @tshepo--- as long as its a black face in any power position its fine hey? can you honestly sit there and say that you are happy with the way they are running this country? come on man, wake up for the future of this country! we are going in the same direction as zim and you just dont see it!!!!

      fraidycat - 2011-08-18 16:17

      Just shows how far removed we are from a real democracy - another thing we need to accept, the fact that we are a one party state. And they want the world and investors to believe SA is stable.

      schmerz - 2011-08-18 16:24

      @AK-Tshepo-47, good luck, but you are doing yourself more harm than good

      Michael - 2011-08-18 17:03

      tshepo . . . I'd love to give this country to you, except I can't go anywhere else. My passport is WORTHLESS. say what you like, look at ALL the data. EVERYTHING has plummeted, this country has been going downhill ever since Mandela left. Then we had a drunk president who suggested Beetroot and fruit as an AIDS cure, then we have this moron who takes showers to prevent aids. your comrades have had their hands in the tax coffers for so long, there's nothing left. So, up the taxes. you, your comrades and everything you stand for has thrown this country down the toilet, now we're just waiting for you to flush it all away. I don't know how you are allowed to even use a computer. Go away, go live with the Gauteng MEC - we've spent R25 MILLION on her house, you'll love it. Just don't go near a computer, see?

      SpetsnazLaz - 2011-08-18 17:17

      Hey Tshepo. How about if I tell you that is not going to happen or that black's won't be ruling for that much longer. It does not take a genius to figure this one out. The strong will always survive. That is how nature works. It is fact that white's and many other ethnic groups have outperformed black's on just about everything that counts. Now just the sheer stupidity that you are showing in most of your posts is evidence already. Oh and guess what! I have no problem with a black president as long as the job is done right.

  • Pictureof - 2011-08-18 15:33

    No the concourt is the only thing saving us from the ANC.

      OuWitBooi - 2011-08-18 17:16

      It is a very ominous sign when the government starts questioning the need for an independent judiciary.

  • First-year Philosophy Student - 2011-08-18 15:34

    Moseneke should have, like, gotten the job.. This guy sounds dodgy man.. Shweet man

      myancmyfutur - 2011-08-18 15:50

      The fact that Moseneke is a former Deputy President of the PAC means he cannot be fully trusted, and we all know that there are politics involved as this is one of the highest jobs in this country.

      schmerz - 2011-08-18 16:29

      @myancmyfutur, you do realise that the ANC and NP are one in the same party? You hate apartheid yet still vote for it

  • Hendrik - 2011-08-18 15:35

    Idiot, the PEOPLE goes to the ConCourt. Its not like the ConCourt challenge legislation by itself! And if the Court find it unconstitutional, then you have to accept it. Mantashe, get your facts straight, please.

      myancmyfutur - 2011-08-18 15:48

      If any piece of legislation passed by parliament can be overturned by the Concourt that means the election process is just a fruitless exercise the Concourt should rather govern this Country.

      Tolerant - 2011-08-18 15:59

      Good idea, the Concourt should rather govern. myanc.

      Wade Mackintosh - 2011-08-18 16:08

      @myancmy(non)future.....Nobody is saying the ANC cannot draw up policies, BUT, it must be within the context of the constitution. A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single or set of legal documents, those documents may be said to comprise a written constitution.

      schmerz - 2011-08-18 16:17

      @myancmyfutur, how thick are you? You think just because they were 'elected' they can do whatever they want?

      myancmyfutur - 2011-08-18 16:47

      @ Wade, The problem is when the Concourt is used as a defense for the opposition. If say parliament with a 2 third majority decides to desolve the Scorpions and set up another crime fighting unit then the minority takes govt to the concourt to have that reversed then we should rather let the Concourt as the highest decision making body govern. Gwede also voices the issue of the extension of the Chief Justice's term indicating that all the Concourt judges should have recused themselves as they were all interested parties on the outcome of that judgement. @ Schemers "Improve your argument, don't raise your voice" Archbishop Tutu

      Wade Mackintosh - 2011-08-18 17:02

      @myanc....If the said policy goes against the constitution, then yes, no matter which way you look at it, it IS the opposing force to an unconstitutional policy. That is what the concourt is for. IF the ANC understood the boundries of the constitution, perhaps they would not be perceived as the opposition. the fact that the anc need to change the law to suit themselves demonstraights the lack of integrity for the law and our great countries constitution

      Wade Mackintosh - 2011-08-18 17:18

      @myanc.... lets look at this in a different way. lets say "team A" is playing "team B" in a soccer match. Is it fair for team A to change the rules to suit them (eg, only team A can score goals) Is that fair? No! by changing the rules of the game to suit yourself, in effect abolishes all rules and sets a precident for anarchy. taking this into account, is it fair for the ANC to change the "rules" of the constitution, or should the other "teams" raise their arms and say "THAT IS JUST NOT ON"? We will be heading down a slippery slope with rules that only benefit a certain crowd... A democracy cannot be both ignorant and free. --Thomas Jefferson

  • HolySnake - 2011-08-18 15:36

    Is better for ANC to ignore these negative comments from whites who are unable to think properly since 1652

      Thor - 2011-08-18 15:43

      You are a primative being indeed. I dont know why I expect more from black people. The fact is africa has always been behind the rest of the world.

      youthofsa - 2011-08-18 16:19

      funny for you to make comments like this when black people live/run africa and look how every black run country is in shambles???? lets face it. black people actually do not have the brain capacity to run a country, there is no conformity, rules are broken, corruption everywhere, and lets not forget the savage behaviour towards your own fellow black people too--- BARBARIANS!!!

      fraidycat - 2011-08-18 16:24

      No, YOU the masses still have to learn to think properly! You are headed into a one party state, meaning that no more elections, your freedoms you gained will be gone...think man...if you really believe that the ANC in a one party state will ensure wealth and health of the blacks under their rule? Please stop believing the promises the pigs at the trough offer you. Lets see how long it takes SA to become yet another African beggar state!

  • lenhard1984 - 2011-08-18 15:39

    Well if parlament seeks to create and change policies that are against the constitution of south africa then surely its the job of the Constitutional court to make sure these policies are not implemented.

      Rev. H-Cubed - 2011-08-18 16:56

      This is the key deficit in the ANC's understanding of democracy. The constitution governs the governors, so that they remember that they are not rulers, chiefs or kings, they serve the nation. The constitution should be regarded as the government's "Terms of Employment".

  • GT - 2011-08-18 15:39

    SP if the ANC passes poorly considered, unconstitutional laws in parliament, then the ConCourt must just ignore it and carry one with the wishes of the government of the day. Gwede seems to have forgotten where we come from and where we are headed with that sort of idea. Thank goodness for our great Constitution and the judges that uphold it.

  • Thor - 2011-08-18 15:40

    Well if you bastards are going to continue attacking the constitution with your laws, what do you expect. Every piece of legislation should be able to pass the constitution. But hey nothing from the anc surprises me anymore. They are oan evil orginisation bent on self-enrichment at all costs.

  • Poloyatonki - 2011-08-18 15:40

    I agree with Mantashe, and I blame white people because they dont have other means of getting back on power.

      Chronoman - 2011-08-18 15:50

      Well said Poly. Whites have no means of getting back in power. So, what are you always going on about?

      bill - 2011-08-18 15:50

      yes , eskom sucks because your sort run it.

      Marc - 2011-08-18 15:53

      Donkey dick, the majority of judges on the bench at the Concourt are BLACK, you idiot! They have the intelligance to see the light! You, however, will remain in darkness for the rest of your life.

      Thor - 2011-08-18 15:54

      Poloyatonki read my reply to tsepo same applies to poor poor primate

      Wade Mackintosh - 2011-08-18 15:56

      HUH? you numbskull, what have the whites got to do with the constitution? Let me guess, you are just another criminal who cannot obey the law!!!! You want the ANC to be in government, then the least you, as a "citizen" can do, is respect what laws are in place.

      Jimbo - 2011-08-18 16:14

      Listen douche, your ANC will never get the 2 thirds majority to amend the constitution as they wish to do. The very same mechanisms that were fought so hard for by the ANC are now turning around and biting them in the behind.

      fraidycat - 2011-08-18 16:29

      Shame it must be lonely on planet Poloyatonki! The ConCourt was created to ensure that our constitution is not abused and gives all people in SA a chance to fight against these abuses. Who will fight the good fight now? P, you are truly a sad sad little man...

      youthofsa - 2011-08-18 16:31

      sad truth of it is, yup.... white people dont have the means to get back in power because you lot breed like flies.... the worst thing about it is you feel you are getting a better life.... the townships are even worse than what they were and you are breeding more uneducated barbarians! in decades to come you will be fleeing the borders just like zim are doing now and guess waht you unedcuated prick.... they have a black leader! everything you touch turns to ruins!!!!

  • rustic - 2011-08-18 15:40

    Ah Gwede, run the country properly and the judiciary won't have to be used to reign you in!

      Pictureof - 2011-08-18 15:47

      He clearly has too much access to African Beer. Dronk op die Job.

  • Stevie - 2011-08-18 15:40

    "...the independence of judiciary and separation of powers must never be translated into hostility" Erm... aren't these the same thing? How does an independent judiciary become hostile to its own independence?

  • TheDon - 2011-08-18 15:41

    The judiciary is meant to function as an independent arm to ensure the rule of law and to help (along with government) uphold the spirit and values of the Constitution. If the government starts taking the view that the court is in "opposition" to it, as this retard is inferring in his statements this will by extension lead to misunderstanding of the role of the courts and government will attempt to exercise unue political influence and control over the courts and could fail to act and take heed of the rulings made by the court, then we will end up with a Zimbabwe scenario. The court is there to protect all South Africans from any government policies that may be passed by a political majority that infringe on the constitutionally protected rights of all South Africans, irrespective of gender, race and political allegiance.

  • jakkals - 2011-08-18 15:42

    uhm, it's the only thing that is still preventing the country to fall to pieces...?

  • BryanJhb - 2011-08-18 15:42

    What an IDIOT and he doesn't even realise it!!!! Only the ConCourt is competent to decide whether legislation meets the requirement of the Constitution. The question the IDIOT should be asking himself and the ANC is why so much new legislation is on the fringes of the Constitution as surely any moral gov would go to great lengths to ensure that there can be no concern about the constitutionality of any legislation they propose.

  • Johannes Viljoen - 2011-08-18 15:43

    No matter what, every candidate nominated by the Pres. would have been suspect. What should be borne in mind is that this dude did not nominate himself, you should not let your hatred for the current government prejudice this man. This would be unfair, but mostly BAIE DOM

      fraidycat - 2011-08-18 16:34

      So true, but the scary truth is that the ANC can now influence the ConCourts' judgements - how will we ever be able to trust the ConCourt again? But as you said, lets give the guy a chance, he will most probably show his true colours in the next month or so...

  • Cindy - 2011-08-18 15:43

    I was of the (obviously mistaken) opinion that the ConCourt was there to ensure that Govt passed laws that uphold the principles enshrined in the Constitution. Obviously I was mistaken and the ConCourt is actually supposed to be a mere rubberstamp for the ANC.... what a plonker I am

  • AndV - 2011-08-18 15:43

    Here comes the truth. So what Mantash confirms is that the ANC wants a Chief Justice that can favour them. What a mokkery of the judicial system, the same system many of us want to have faith in that it will defend our rights under the Constitution. How can any judge with integrity accept a nomination with this criteria. JZ and his cronies is a serious threat to our democricy and safety of this country. Unfortunately their biggest support lies with uneducated and illiterate supporters and those with a bit of savvy are oportunists waiting to grab more tenders and money where they can, some even billionares.

      bill - 2011-08-18 15:57

      mantashe is a stalinist and wants to eliminate all opposition to jz's corrupt little gang

  • Currie_Mafia - 2011-08-18 15:44

    Settle mense, settle. °°

  • Mac - 2011-08-18 15:44

    The incumbent government of the day should be well aware of what constitutionally driven parameters are. Legislation passing through parlament would not need such intervention if it was adhering to the constitution in the first place. Is this an admission that parlament and government do not know the consitution or that they want to be able to bypass it and undermine it without being subject to scrutiny and checks and balances ?

  • Markal - 2011-08-18 15:45

    How do these clowns think we can take anything they say seriously?

      Pictureof - 2011-08-18 15:47

      They assume we are all sitting with IQ's sub idiot.

  • Mkushi - 2011-08-18 15:45

    What an absolute rubbish is this man spewing. He and the ANC government should be ashamed that the public has to even resort to the constitutional court to ensure proper governance and legality of things in the first place. If anything it is actually pointing out that our ANC government is unable to perform within our constitution. Time for class action BIG TIME.

  • myancmyfutur - 2011-08-18 15:45

    The fact that the Concourt is placing itself above government will indeed mak a mockery of our democracy.

      Pictureof - 2011-08-18 15:50

      The fact that you can legally vote is a mockery to democracy.

      bill - 2011-08-18 15:52

      intellectually , plankton is above the government

      Wade Mackintosh - 2011-08-18 16:04

      ERRRR ... it should be above the government, EVERYONE is accountable to the law, even your precious mobster government

      allie - 2011-08-18 16:06

      Met concourt het die ANC vir homself n lat vir sy gat gesny-awhaaaaa

      tailormade - 2011-08-18 16:18

      The trolls on this forum are breeding like rabbits.... If you don't even comprehend the purpose of the ConCourt.....then you shouldn't comment.

      Rev. H-Cubed - 2011-08-18 17:04

      Another admission of complete ignorance of democratic principles.

  • AlexX - 2011-08-18 15:47

    The ANC government was praised for the progressive Constitution. It is free and fair and now biting them in the 0 because they are daily in conflict with their own dreams and ideals of how this country should be run

  • bill - 2011-08-18 15:47

    time in prison doesn't make you an expert om the law you fool

      Pictureof - 2011-08-18 15:56

      skerp !!

  • Wade Mackintosh - 2011-08-18 15:48

    perhaps the ANC should study the constitution first, so they would not be "shot down" all the time cause their policies go against the constitution. My worry is this newly elected judge is there to pass the information bill. In other words, another ANC stooge. see...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." Why not the more experienced guys, OH! because they are white? "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. ------ EXCUSE ME!!!! the judiciary should be independent!!! Our current government has has no respect for the constitution that has survived countless years. but only seek to change it to suit themselves. Shows the mobster intelect we have as "leaders".

  • Belisarius - 2011-08-18 15:48

    Personally I feel that highly educated and experienced judges, who are experts in constitutional law, are better qualified when it comes to evaluating laws enacted in parliament than the members of parliament themselves, some of whom don't even have high school education. This, unfortunately, is true in most countries around the world.

  • Slapper - 2011-08-18 15:49

    The Concourt is the only thing between the ANC and absolute corruption and dictatorship. Wouldnt the ANC love to get rid of the embarrassment of continuously being nailed for shonky practice.

  • saliem - 2011-08-18 15:50

    "You can't have a judiciary that seeks to arrest the functioning of government" Oh really Mr Mantashe? What he is, in effect saying is that the ANC/Government considers itself to be above the law. That's typical of the arrogance that one has become accustomed to. If they want to avoid this, they should sto drafting laws to suit what Luthuli House wants and get COMPETENT barristers to advise them. The constitution is there for ALL of the people of this land... not to serve the political masters of the day. That goes for ALL political parties - get it Mr Mantashe?

      rustic - 2011-08-18 15:58

      Well said Saliem.

  • Chronoman - 2011-08-18 15:51

    That explains everything. Mantashe should be applauded for being so frank. The appointment is a political one and was not informed by judicial competence per se.

  • ian b - 2011-08-18 15:53

    Gwede suggest you read Pierre de Vos on Constitutionally Speaking he seams to give a balanced view of things constitutional. You cherry pick and run with the spin needed to deflect the poor decisions of the ANC. Read the real reasons for the ANC total lack of legal understanding of all the issues raised the latest being the nomination of Mogoeng "its not about his age its about his understanding of the law or lack of it and his conservative male dominated view point of respect to authority even if no shower above JZ head etc. Remember together you will steal more

      Pictureof - 2011-08-18 15:57

      Or have someone read it to him.

  • Freddie - 2011-08-18 16:01

    Here is a crazy thought... how about writing legislation that complies with the constitution?? The judiciary does not bow down to the ANC... not yet at least! In any civilised society it should never.

  • matla - 2011-08-18 16:03

    Mr Mantashe , if you have not noticed - parliamentary sovereighty was replaced by a constitutional democracy in 1996. Comprehende comrade

      allie - 2011-08-18 16:12

      Maybe somebody just told him what democracy means and that it`s got nothing to do with CRAZY DEMONS.Montassie,ek dink die voorvadergeeste is besig om julle te drop.

  • crocoros - 2011-08-18 16:07

    Anyone who opposes the shananigans of the ANC led Government will become a problem for the ANC. If you work with them in their wheelings, dealings and stealings then there is no problem. They want to make and do as they please without being stopped and that is why they see the Constitutional Court as a threat. The ANC wants to do away with law and order, take a good look at Zimbabwe its the perfect example.

  • fraidycat - 2011-08-18 16:13

    Now the ANC is just waiting for Madiba to pass away - then the constitution and all his good works will be down the drain. The ANC will rule and not govern! How on earth can you have an ANC cadre as head of the ConCourt, without becoming in essence an ANC machine. Now the ANC can change the constitution with no-one asking questions. Already, the ANC does not like being criticised via the ConCourt!

  • tailormade - 2011-08-18 16:14

    No issues against him? Interesting comment.... The Cape Times this morning had an editorial article pointing out the various dubious situations that this nominee was part of.....making him the most controversial of all the current ConCourt judges.

  • Carl - 2011-08-18 16:14

    OUR constitution, not only anc OURS

  • Gaina - 2011-08-18 16:26

    If the government stuck to the constitution there would be no problem nit.

  • Bilbo - 2011-08-18 16:37

    Mantashe, stop contradicting yourself. I thought that possibly you were different to the other ANC cronies, but you are quickly showing that you are in fact just as corrupt.

  • george60 - 2011-08-18 16:50

    Without the CON COURT at this moment our country will be zimbabewised. anc and the rest of africa are the same, none of them want opposition.

  • Michael - 2011-08-18 16:57

    I haven't read this crap, all I need half of the first sentence: The Constitutional Court is being used as an "opposition" to the ANC-led government. I agree whole-heartedly, Gweddy-Gwedz! I think it speaks at a screaming volume when one of the top ANC admits to this. The DA is using the Constitutional Court as an opposition to the ANC? what does that say about the ANC? If a party can use the ConCourt as an effective opposition tool, this points to ONE thing: The ANC, the ruling party that should be SUPPORTING the constitution, continually goes against it. This is damning. The ANC contravenes the people's basic rights, and Gweddy Gwedz, you've just admitted it. Can we please have some honest people who respect our rights and the rights of our country. Some people who don't piss on the flag that they themselves designed.

  • Benzo - 2011-08-18 17:30

    "The worst thing that can happen is if Parliament gets flat-footed.

  • Benzo - 2011-08-18 17:34

    "The worst thing that can happen is if Parliament gets flat-footed". Meaning what? They are already eating out of ANC hands. How more "flat footed" can they become??

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