Mr Mantashe is also of the opinion that the Court’s suggestion that members of Cabinet responsible for allegedly violating Justice Dunstan Mlambo’s court order regarding the al-Bashir case be prosecuted was “akin to a coup”. Minister of Police, Nkosinathi Nhleko, publicly questioned the independence of the Judiciary and accused judges of colluding with people to produce “certain judgments”. The South African Communist Party (SACP) and ANC Youth League (ANCYL) are reportedly organising mass protests against the Judiciary who they accuse of “bias” and “partiality”. According to Solly Mapaila, SACP Second Secretary, the Judiciary has become “a superinstitution that accounts to no one… not alive to the context of and interests of the country… interpreting the law as if they are operating from an island outside the country”. Similar sentiments were echoed by Minister Blade Nzimande and ANC Chief Whip, Stone Sizani, who apparently disagree with the idea that either Parliament or the Executive are subject to judicial review.

In terms of section 1 of the Constitution, our democracy is founded upon particular constitutional values, including supremacy of the Constitution and the Rule of Law.

Section 2 affirms that the Constitution is the supreme law of South Africa and provides that “…law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”. In turn, section 165 of the Constitution determines the judicial authority of South Africa vests in the courts, which are “independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. Section 165 also determines that “no person or organ of state may interfere with the functioning of the courts” and that “organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”. Crucially, in terms of section 172, when deciding a constitutional matter within its power, a court must declare that “any law or conduct inconsistent with the Constitution is invalid to the extent of its inconsistency…and may make any order that is just and equitable” in that regard. According to section 165(5) of the Constitution, “An order or decision issued by a court binds all persons to whom and organs of state to which it applies”.

The Rule of Law-doctrine requires that everyone is subject to the law, that the law should be public and applied equally to all, and that the law should be determined by an independent judiciary. This means that judges must have the ability to decide cases on the basis of legal merits only – shielded from any influence by the Executive, by politicians or by anyone else. It also means that the people must have confidence that judges will apply the law equally against the government and powerful political, financial and other interests, without fear or favour.

The Judiciary has a constitutional duty to uphold the Constitution and to interpret the law in terms of the Constitution. Sections 167 and 172 of the Constitution are clear: the Executive and Parliament are subject to scrutiny by, and bound by the decisions and orders of our courts. It is the Judiciary’s exclusive constitutional duty to ensure that whatever the Executive and Parliament are doing is in accordance with the Constitution and the Rule of Law. If not, it is the duty of the courts to declare invalid any law or conduct inconsistent with the either the Constitution or the law and to make appropriate orders.

The ANC and its alliance partners are outraged that many judgments have gone against the government and Parliament, and seemingly view this as proof that the Judiciary must be biased. They are concerned about the courts “overreaching” on what they call political questions. It is, indeed, disturbing that so many “political” questions are now coming before the courts.  However, the problem does not lie with the courts or with those who are forced to defend their rights by litigating against the government. It lies rather with both the government and Parliament for not taking scrupulous care to ensure that all its actions and draft legislation are in accordance with the Constitution and the law. Minister Blade Nzimande’s assertion that “we must not define our constitutional state as standing in contradiction to majority rule” summarises the crux of problem. Mr Nzimande and others tend to forget that our multi-party system of democratic government – including the notion of “majority rule” – is subject to the Constitution and the Rule of Law.

Nevertheless, instead of assisting and protecting our courts in order to ensure their independence, impartiality, dignity and effectiveness, the senior members of the ANC and its alliance partners – including members of Cabinet – are doing quite the opposite. The predicament does not lie with the Judiciary, but with those who disregard the Constitution and the limitation of power inherent to our constitutional democracy. Politicians, their politics and policies are subject to the Constitution and the Rule of Law. Our Judiciary is required by the Constitution to ensure that this is in fact the case. Doing so is not “akin to a coup”, it is called justice.

By Adv Johan Kruger, Director: Centre for Constitutional Rights

Photo credit: RosarioEsquivel / Foter / CC BY-NC-SA