Note to Editors: The following speech was delivered in Parliament today by the DA Shadow Deputy Minister of Justice and Correctional Service, Adv.Werner Horn MP, during the Budget Vote on the Office of the Chief Justice and Judicial Administration.
The unenviable and thankless, but yet paramount task of our judiciary was described with great clarity in the 2006 judgment of our Constitutional Court, in the case of Affordable Medicines Trust VS the Minister of Health in which the Court held:
“The exercise of public power must, therefore, comply with the Constitution, which is the supreme law and the doctrine of legality … it entails that both the Legislature and the Executive are constrained in the principle that they may exercise no power and perform no function beyond that conferred on them by law.”
Chair,
This uncomfortable reality is of course at the root of all of the ANC’s criticism against the judiciary – an ANC which more and more regrets ever insisting on installing constitutional supremacy in our country and who want to go back to parliamentary supremacy, so that they can use their majority to do exactly what they want, without any checks or balances.
Therefore, the continuous and constant criticism of the judiciary, especially every time it holds the ANC’s exercise of power to be unconstitutional, is, in fact, not only criticism, but part of an active campaign of intimidation against the judiciary.
In June 2013, the then President of the Supreme Court of Appeal, Justice Lex Mpati, had the following to say regarding the independence of the judiciary:
“An independent Judiciary requires both that individual judges are independent in the exercise of their powers, and that the judiciary as a whole is independent, its sphere of authority protected from wrongful interference by the other two branches of government … as for individual judges they must be protected from the threat of reprisals, so fear does not direct their decision making”.
Chair,
For those still of the opinion that the lip service the Executive and the ANC sometimes pay to the supremacy of our Constitution, the rule of law and the independence of our judiciary should ally our fears, we say – don’t be fooled.
On Monday, just prior to the hearing of the matter in the Constitutional Court regarding the application of the United Democratic Movement (UDM) for a ruling on a secret ballot in the Vote of No-confidence debate, the Chief Justice Mogoeng Mogoeng issued a statement that must be repeated here. He stated that:
“The South African judiciary reaffirms its commitment to the principles of independence, impartiality, dignity, accessibility and effectiveness of the courts.
The courts, as provided for in our Constitution, exist to promote the rule of law and to uphold the supreme law of the country, the Constitution.
The South African judiciary has been, and will continue to be fearless in its approach to promote the rule of law and safeguard its independence.
The South African judiciary further reaffirms its commitment to the doctrine of separation of powers – provided for in the Constitution – which vests the legislative autonomy in the Legislature, the executive autonomy in the Executive, and the judicial authority in the courts.”
Then, during the hearing, the Chief Justice made a startling, yet coded, revelation that members of the judiciary face unspecified threats.
In a throw-away comment during Monday’s Constitutional Court hearing, Chief Justice Mogoeng suggested that judges face dangers more serious than the risk of losing their jobs, for making unpopular decisions.
Chief Justice Mogoeng gave no specifics of the dangers he was alluding to, but every single South African who holds dear our constitutional democracy should be alarmed.
Clearly some incident moved the Chief Justice to make both of these rather startling statements.
Bearing in mind the stated importance of the principles mentioned by the Chief Justice, and the importance of a truly independent judiciary, who must apply the law without fear, favour or prejudice, it is extremely worrying that our judiciary are in all probability under threat of physical harm.
Chair,
Add to this the specific content of the budget for the Office of the Chief Justice (OCJ) proposed here today, which does not even enable the full operationalisation of the Mpumalanga High Court or the Superior Courts Act, nor allow for either the upgrading of the security of the OCJ, nor for the personal security of judges.
The question must be asked why we should not brand this budget as yet another attempt to intimidate the judiciary into a state of deference to the Executive and the Legislature?
The DA cannot, in good conscience, support this budget.