ANC MP and member of the Justice Committee, Charlotte Majake-Pilane, has accused the opposition of acting as if they own the judiciary. Referring to ‘judicial over-reach’, she accused opposition parties of resorting to the courts to block executive actions. Majake-Pilane told the opposition that in the United States court judgments are evaluated and assessed annually by a group of experts.
“In South Africa today when you talk about this nature, what the opposition begin to say is that look at you, now you want to attack the judiciary. Nobody wants to attack the judiciary. Nobody wants to take the independence of the judiciary. But when South Africans pause and say, let’s look at what is happening don’t let them feel bad. It’s a new form of oppression of shutting people down. When people say something you want to shut them down. You continue to patronize the judiciary like you own the judiciary”
Shadow Minister of Justice and Constitutional Development, Adv Glynnis Breytenbach MP, during the Budget Vote on the Office of the Chief Justice and Judicial Administration in Parliament
We live in a time when the debate on vote 22, the Office of the Chief Justice, again attracts more attention than would have been the case had we lived in a normal constitutional democracy. But then, of course, we do not.
We live in a constitutional democracy described by the President, who should be one of the ultimate guardians of this constitutional democracy, as a “funny” democracy. And he is the only one laughing! Particularly when he displays his total inability to understand the role of the judiciary in scrutinising all exercise of public power.
But he, of course, is not alone in this inability. It is clearly an extremely contagious affliction that has spread not only through his entire cabinet, or what remains of it, but through his entire party.
In his speech on this vote on 19 May 2015, the Honourable Minister of Justice stated as follows:
“Today’s maiden budget vote debate of the Office of the Chief Justice marks an important turning point in the 21 years of our democracy. The independence of the judiciary is crucial in view of the role it plays in a constitutional democracy within the context of separation of powers.”
He then went on to quote, with approval, former Chief Justice Ngcobo who remarked:
“The role of the judiciary in a constitutional democracy is an expansive one. Decisions of judges affect many people. Courts have the power to overrule even the most popular decisions of the other arms of the state if they believe they are contrary to the constitution. The acceptance and support of these and all court decisions by society depends upon public confidence in the integrity and independence of the judiciary”.
Maybe the President is correct in saying that we live in a funny democracy, because, what would have been funny if it was not so terribly sad, is that on every occasion since then where the courts have performed exactly this function, they were roundly criticised and derided by the President and members of his cabinet in a manner that can no longer be seen as merely a discussion of court rulings, but which can only be seen as an attempt to intimidate the judiciary.
Chairperson, then from left of the stage, entered yet more “thieves”, this time of the allegedly common and garden variety, or at least that is what the Acting Commissioner of Police wanted the country to believe, when he rounded up three unfortunate passers-by and tried to pass them off as criminal masterminds of the calibre of George Clooney and Brad Pitt in a South African version of Ocean’s Eleven.
What, however, remains unanswered, is exactly how the real thieves, who remain undetected, gained access to a building that should be totally secure, whether a CCTV camera system was operational at the time, and if so, how it was circumvented, as well as the progress, or lack thereof, in tracking down these real thieves.
Chairperson, in all seriousness, it was with a great measure of discomfort that we learned that the budget allocation to the Office of the Chief Justice will not allow this department to strengthen security measures through their own resources.
If the President, and his colleagues within the ANC, are really serious about the practical implementation of the separation of powers, it must follow that the Office of the Chief Justice should not be dependent on another of the arms of state for its safety measures.
Chairperson, on the right of stage, and present there since before this department was established in 2015, and afforded its own budget vote, remains of course, the issue of a judicially-led court administration model. From the outside, looking in, it would seem that the Minister of Justice approaches this issue with the theory that if he turns a blind eye to it for long enough, it will simply go away – like we sometimes wish he would.
The stance of the judiciary on this matter is clear, and since nothing real has happened to address the standoff since this debate last year, we re-iterate:
The Democratic Alliance supports a model through which the judiciary be allowed, in a manner similar to that of the Auditor General, to negotiate directly with Treasury regarding its budgetary allocation.
Accountability in regard to how this budget would be spent should be enforced by a Parliamentary Committee set up specifically for this purpose, rather than the Portfolio Committee for Justice and Correctional Services.
This unwillingness to constructively deal with the issue must be read against the backdrop of the continuous and continued criticism of the President, members of his cabinet and others within his polluted inner circle.
From accusations that the collective mindset of the judiciary is in need of ‘transformation’, to statements that certain divisions met with what was called ‘characters’ before producing counter-revolutionary judgements to a more specific accusation that specifically the Western Cape and Northern Gauteng benches assisted efforts by opposition parties to govern through our courts – we have heard it all.
After the Nkandla judgement, scathing attacks were launched on the judiciary by many in the ANC, particularly those that rushed, predictably, to the defence of the President, the hand that feeds them.
After the judgement in the matter of Al-Bashir, cabinet ministers openly attacked the judiciary. In particular, Minister Mbalula and Minister Nzimande were most outspoken in their criticism of the judiciary.
When the President addressed the House of Traditional Leaders, he told them that the judiciary was not to be trusted, that judges found one guilty for stating one’s case, even when one was innocent.
The attacks on the judiciary were of such an alarming scale that the Chief Justice was moved to request a meeting with the president in order to address the attacks and the effects thereof.
The meeting took place, and a stone-faced Chief Justice, and a predictably giggly president, told the nation that the proverbial hatchet had been buried, and that a new understanding had been reached, re-affirming the importance and the independence of the judiciary.
For as long as this budget does not facilitate complete independence of the judiciary, the DA cannot support this budget.