Chaskalson defends ConCourt, Constitution

2012-05-11 10:38

Cape Town - A government review of the Constitutional Court should find that no provision of the Constitution has been an obstacle to transformation, former chief justice Arthur Chaskalson said on Thursday evening.

Social and economic transformation was indeed possible within its framework and perhaps needed only minor amendments if necessary, he said in a public dialogue in Cape Town.

Justice and Constitutional Development Minister Jeff Radebe released a discussion document on judicial transformation in February, saying the decisions of the Constitutional Court and the Supreme Court of Appeal would be reviewed to establish the extent to which their decisions had contributed to the reform of South African jurisprudence and law.

It would analyse jurisprudence and socio-economic rights, particularly the eradication of inequality and poverty, and the enhancement of human dignity. It would also examine the state's capacity to realise the outcome of such court decisions.

Chaskalson said the African National Congress (ANC), in its discussion documents for the "second transition" of the country, had identified key challenges to transformation, most notably that too few people were employed and that the quality of education for especially black people was still poor.

"I am not aware of any decision [by the court] that could be said to cause these factors. The causes of poor education are complex and rooted in the past. However government has the responsibility to provide a good education. There is nothing in the Constitution stopping government from providing this," he said.


Corruption was identified as another key threat to democracy.

"There is nothing in the Constitution or the decisions of the courts that facilitates corruption. Corruption is a threat to constitutional democracy."

The government needed to have the commitment and political will to fight corruption within its ranks, a task he described as "very, very difficult".

Chaskalson said the country's widespread poverty and extreme and persistent inequality would eventually lead to dissent and instability, a far greater threat to democracy than the perceived threat of judicial power and its decisions.

He said service delivery protests were likely to increase and grow more intense if the root causes were not addressed.

"Lessons of history warn us what could happen in such situations... If key challenges are not addressed I think our Constitution will, indeed, be in danger."

The former chief justice was satisfied that the judiciary itself had seen transformation, stating that over 60% of sitting judges were black and over 30% were women.

It could, however, see more women sitting on the bench.

When asked what the public could do to help with transformation, the 80-year-old said a mind-set change was needed. The privileged needed to accept there was poverty and inequality and show "a positive commitment [to change this] instead of whining condemnation".

  • Paul - 2012-05-15 14:40

    If one aspect of the constitution is flawed then the whole document is not worth the paper it's written on!! I take issue with the following: In Chapter 2 - Bill of rights: No.14 says "you have the right to privacy" but in SA the SAPS do as they please, they stop and search ordinary citizens with no justification as if we still living in the Apartheid era!! The SAPS enter our private homes & do as they please and when you ask them if they have a search warrant they answer "they don't need one"!! What the heck is the point of 'point number 14' of the Bill of Rights if the SAPS can do as they please?? If a "suspected criminal" is arrested by way of an illegal search,the validity of that search is not even questioned in court by the incompetent magistrate/s or judge/s, the Police & the useless prosecutors just give an excuse of the SAPS never had enough time to get a warrant. The useless criminal lawyers and everyone in the legal fraternity are well aware of this exploited loop hole in our constitution but none of them are interested in correcting the problem instead they look to profit from it by letting the state prosecutors and corrupt Police terrify innocent citizens into spending their hard earned money on making them (dishonest criminal lawyers) rich when the citizens have done nothing wrong. One is left to wonder who the Magistrates & the Judges are working for... the State??

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