Veteran human rights lawyer, George Bizos, has spoken out about the need for courts to remain independent and free of political interference.
Bizos was speaking at a graduation ceremony at the University of Pretoria where he received an honorary doctorate in law. During his address which was entitled “Blame neither the constitution nor the courts”, he said there had been many criticisms levelled against the constitution and the courts, most of which were, in his view, unfair, unjustified and uninformed.
Bizos took issue with a recent remark by President Jacob Zuma that the executive had the sole discretion to decide policies for the government.
Citing fellow lawyer Geoff Budlender, he said: “The theory that the executive has a monopoly of wisdom on policy questions, based on a democratic mandate, strikes me as somewhat remote from reality.”
Bizos said last week’s appeal court ruling invalidating the appointment of Menzi Simelane as National Director of Public Prosecutions “serves as a reminder that the president is not above the law”.
Former president Nelson Mandela had shown no hesitation in abiding by a Constitutional Court ruling that overturned a law giving him the power to amend legislation by proclamation.
“The same day, Mr Mandela rushed to the television and radio stations of the SABC and declared… that he respected the decision of the Constitutional Court and appealed to all concerned to similarly accept the court’s decision.
“What a pity that some of Mr Mandela’s successors have not followed his example.”
Bizos also took issue with comments made by the ANC secretar-general Gwede Mantashe who said: “… the judiciary is actually consolidating opposition to government”, and that “there is a great deal of hostility that comes through the judiciary towards the executive and Parliament” and that judges were “reversing the gains of transformation through precedents”.
Bizos said such criticisms had led to a number of recent lectures and papers on the role of the judiciary and executive.
“The tension between the executive and the judiciary is not new to South Africa. In the 1897 case of Brown v Leyds NO, then chief justice Kotzé held that besluiten (informal laws passed without notice by a simple majority vote) were invalid on the ground of incompatibility with the Grondwet (the constitution). He held that sovereignty vested in the people of the Republic and not in the Volksraad (the South African parliament at that time); that the constitution created fundamental laws with which parliament was obliged to conform; and that it was the duty of the court to declare invalid, measures which were not in conformity with the constitution,” he said.
Bizos said this was just an example of the many disputes between the executive and the judiciary in South Africa and how the apartheid regime responded when it was unhappy with the judiciary. He said he hoped the current ruling party did not intend to follow either the apartheid regime’s example or that of President Paul Kruger.
“But I do have some concerns. The courts, as well as the individuals and organisations that bring human rights cases against the executive, to whom some impute false motives, have been subject to severe criticisms bordering on demonisation. South Africa is a constitutional democracy. All power, whether of Parliament, the executive or the courts, must be exercised in accordance with the constitution which is the final word of the powers and roles of each branch,” said Bizos.
Bizos also blasted the idea of having an assessment body to comment on judgments passed down in courts. He said judges were not infallible, and that this was why there were superior courts to which one could appeal. “There is no reason to establish a new oversight body not provided for in the constitution,” he said.
Bizos said such an assessment body would take the people of South Africa down a road that was unconstitutional, unreasonable, unsustainable, and that had to be construed as nothing less than a resurgence of the methods of the apartheid regime.
“How ironic that the very party that fought so hard against apartheid is now considering adopting one of the regime’s most devious methods,” he added. - Pretoria News