The National Association of Democratic Lawyers (NADEL) notes with great concern the current the current debate within our society which seeks to accuse the judiciary of overreaching into the powers of the Executive. Some of the statements made show how our society(even leaders in society) fail to understand what our constitution says about exercise of power. In attempts to address this issue we wish to set out what separation of powers is and when can it be said that the judiciary has encroached on the powers of another arm of government.
All organs of state gain their power from the constitution. They are obliged to exercise their power as provided for in the constitution. Powers of the state and areas of responsibility are divided between three different but interdependent arms namely: the Executive, Legislature and Judiciary, this is known as the separation of powers. Separation of powers means that each arm of government has own specific powers and responsibility as granted by the constitution and the other arms cannot encroach on any of the other arms powers and functions.
Our Constitution also makes provision for constitutional supremacy which means that the constitution is the supreme law of the country therefore all laws and actions must be in according to the constitution. Simply put this means that even though the different arms of government have been given specific, and in some cases exclusive, powers and functions such powers and functions must be exercised in accordance with the constitution. In order to ensure constitutional supremacy the constitution has placed various mechanisms for checks and balances this is to ensure accountability, responsiveness and openness.
Judge Phineas Mojapelo in his article The Doctrine of Separation of Powers (A South African Prospective) stated the following, “The purpose of checks and balances is to ensure that different branches of government control each other internally and serves as a counter weights to the power possessed by the other branches…”
The constitution gives courts the powers to review conduct of the Executive and legislature, which is to see if they (the executive and legislature) exercise power and fulfil functions and duties as given by the constitution.
In South Africa when Judges are appointed they take an oath of allegiance binds them to perform their duties without fear or favor. In his judgment delivered on the 8th December 2017 in the matter between Corruption Watch and the Freedom Under Law (RF) NPC versus the President of the Republic of South Africa and Others and again today in the presidents review case against the public protectors state capture report Judge President Mlambo displayed the independence of the Judiciary in no uncertain terms. We applaud him for showing leadership yet again in a country that seems to be hastily running out of ethical leaders. We submit that he has exercised his power as accorded by the constitution and did not encroach on the powers of the president.
Judicial overreach only occurs when a court acts beyond its jurisdiction and interferes in areas which fall within executive and legislative. In these two cases we submit that he has not.
Irresponsible statements by ill – informed citizens, especially by leaders of society, criticizing the judiciary are cause of great concern and should not be tolerated or encouraged. These statements are a threat to judicial independence, and need to be addressed properly.
The late Chief Justice Pius Langa in his opening address at the conference of the Commonwealth Magistrates’ and Judges’ Association said:
There are serious challenges still facing the country; they are being tackled. The great majority of our people have faith in the Constitution and its structures and institutions. The legislature still goes about its business, consulting its constituencies and making laws. The executive likewise carries on, making policy and running the governance of the country. The courts are still the interpreters of the Constitution and the law … Storms come and storms pass. We can still claim that the constitutional guarantee of an independent judiciary is alive and well in South Africa … The judiciary’s place is firmly entrenched in the Constitution.
While we encourage debate that seeks to challenge a specific decision of any specific court, as this in itself helps strengthen our democracy, we condemn all attacks on the judiciary that seek to undermine the independence of the judiciary and the rule of law. South African citizens need to be taught respect for the rule of law and leaders of society should be leading that. Our legal system provides recourse where the litigant is unhappy with the decision of the Judicial Officer and that is the process we should follow and not result to throwing insults at the Judges.
ISSUED ON BEHALF OF THE NATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS (NADEL), SOUTH AFRICA
By: Memory Sosibo
Publicity Secretary, NADEL Executive Committee,
Contact: 081 710 7910