Role of the courts in a constitutional democracy

THERE is a seminal debate occurring on the role of the courts in South Africa's constitutional democracy. This is clear from Mondli Makhanya's "We turn against the constitution at our own peril" (January 29) and the extract from Judge Arthur Chaskalson's address at UCT - "When law irks power" - of the same date. According to SACP secretary-general Blade Nzimande, South Africa is becoming a judicial dictatorship.

In similar vein, Deputy Correctional Services Minister Ngoako Ramatlhodi has described the constitution as a shoddy compromise, since, according to him, the liberation movements, in their enthusiasm to create an egalitarian society, surrendered crucial political powers, thereby allowing the apartheid regime to migrate those powers into other arenas, including the judiciary. Also, ANC secretary-general Gwede Mantashe has expressed profound concern about the ability of an unelected judiciary to set aside policy choices of an elected democratic government. Speaking in parliament recently, President Jacob Zuma declared, inter alia:

"Our view is that the executive ... has the sole discretion to decide policies for the government." Constitutional democracy is patently more than mere majority rule. It is a complex phenomenon of political and legal morality in which the majority, minorities and individuals have rights and obligations which the courts must interpret, apply and protect. In so doing, a constitutional democracy must give expression to the universal values embodied in the Bill of Rights and the constitution. A majority cannot therefore trample on the guaranteed rights of minorities or the individual. - Professor George Devenish, Durban

OUTSTANDING commentary by Judge Chaskalson and Mondli Makhanya regarding judicial independence and defending our constitution. The attacks by ANC cohorts on the constitution and the judiciary are worrying. When the ANC government makes irrational and ill-thought-through decisions that can be successfully challenged by civil society in a court of law, then surely the government must accept responsibility for the findings and not lash out at the judiciary if matters don't go their way? - CJ Swartz, Athlone

THE constitution has no colour, so we are all equal before its eyes. However, our constitution is in its aspirational form; we are not yet there. That is why we cannot afford jurists who are naïve to this reality, trumpeting their pure application of the constitution. The constitution is committed to transformation, for every citizen's life to improve and for access to social justice, among other things. In its balancing act, the constitution leaves it to the interpreters to be specific that this is a transformation and promotion of black lives, even when they may not deserve it, compared with their white counterparts. The constitution is broad and accommodating, and all judges, black and white, must make it work in favour of black people. - Yonela Diko, Cape Town

Learn Zulu, Phylicia

IF PHYLICIA Oppelt had not been so preoccupied with being truly black or otherwise she would have learnt IsiZulu so as not to rely on others to decode the King's message for her, "No warrior would flee the homophobic field of battle" (January 29). - Zwelethu Mokoena, by SMS

PHYLICIA Oppelt must understand that our king is not a warrior and must be given the utmost respect at all times. The ceremony was held for his subjects celebrating our nation's victory over the English army at the battle of Isandlwana and whatever was discussed was directed to them.It is not our fault she doesn't have a king but she has no authority to join the bandwagon of those trying to discredit our king. And he has never begged for public funds to survive. - Nkosana Ndaba, Sandton

What's up, docs?

I READ with interest Chris Barron's interview with the acting registrar of the Health Professions Council of South Africa (HPCSA), Dr Kgosi Letlape, and the inadequate answers to his questions concerning the bogus neurosurgeon (the same one who worked undetected for two years with the president of the HPCSA, Professor Sam Mokgokong), "So many questions" (January 22). Another question which might have been asked is: how is the HPCSA now constituted? Members were, up to the early 1990s, elected by their peers, and the minister of health then nominated a slightly larger number of politically sympathetic appointees to ensure the council did not get out of hand.

It would appear now that ALL members are nominated, so the thousands of health professionals have no say in who represents them. Why not? Since the HPCSA took over from the Medical & Dental Council, it has malfunctioned just like Limpopo province. The first registrar (CEO) reputedly had both medical and legal degrees until found out, and his successor, advocate Boyce Mkhize (who immediately spent some R600000 renovating a more than luxurious existing office) suddenly resigned last year to become CEO of the National Nuclear Regulator. But the November issue of The Medical Chronicle stated that "during his reign, advocate Mkhize was accused of being a dictator and in cahoots with former health minister, the late Manto Tshabalala-Msimang, who was accused by members of trying to take control of the HPCSA".

Then the acting registrar/CEO, Marella O'Reilly, was suspended and faces disciplinary action "for insubordination". All very Limpopo-ish. In March 2011, the position of a permanent registrar was advertised, but Health Minister Aaron Motsoaledi refused to endorse the council's preferred candidate, advocate Tshepo Boikanyo. With issues like this at the top, small wonder this body is unable to monitor the qualifications of people purporting to be adequately trained. - Mac Robertson, Durban

Still a baby

KGALEMA Motlanthe's "The twin dangers of money and greed" (January 29) was inspiring . His perspective and possible solutions to the many problems (challenges) the ANC are facing - transforming from liberators to government - were thought-provoking. I draw an analogy between his ideas and those of President Barack Obama in his book The Audacity of Hope. Both have clear perceptions of the problems facing their individual countries. - Fred Hirsch, Randburg

Be fair to De Kock

ALTHOUGH remorse is not a requirement for amnesty, Eugene de Kock emphatically and repeatedly expressed his remorse and asked for forgiveness at each of his amnesty hearings, "De Kock must rot in jail!'' (January 29). De Kock was charged and tried during a period when investigation into all other similar crimes, committed by members of the National executive committee of the ANC, had been suspended depending the outcome of negotiations relating to a possible general amnesty. If De Kock was treated in the same way , he would have been on parole years ago. It is therefore imperative that in the interest of justice the parole board shall consider the parole of Eugene de Kock with impartiality, fairness, open-mindedness and integrity. - ECR Bean, by e-mail