'We have the right to criticise judges'

Unveiling a discussion document on the transformation of the judicial system in Cape Town yesterday, Justice Minister Jeff Radebe said an 18-month study of the Constitutional Court's decisions would be carried out.

The study will assess how decisions of the Constitutional Court specifically, and the judiciary generally, have contributed to the ''reconstruction of South Africa".

But Radebe made no mention of assessing the court's powers, as threatened by President Jacob Zuma and other senior ANC leaders during the past year.

Zuma, as recently as February 13, called for the top court's powers to be reviewed, sparking a widespread outcry and fears that the constitution itself was under threat.

"We don't want to review the Constitutional Court, we want to review its powers," Zuma said in an interview with Independent Newspapers.

Experts have raised concerns about the review, fearing that it might be an attempt by the ANC government to muzzle the judiciary.

Radebe was, however, quick to allay those fears. "The independence of the judiciary is not at stake," he said.

But Radebe said there was ample evidence to prove that judgments could and should be criticised.

"There is supporting literature that in a constitutional democracy such as ours, criticism of the court's decisions is both permissible and desirable," he said.

He said judges should be held to the same standards as those expected of the executive and parliament.

''Judges are not less immune to public scrutiny than members of the executive and legislature," he said.

Radebe said the Constitutional Court assessment would rely heavily on research already conducted by legal academics on the subject to determine the impact of the court's rulings on the transformation of society as a whole.

It would be undertaken by research institutions, but the project should deliver "implementable rather than academic solutions to problems that risked undermining transformation".

The terms of reference are still to be announced.

The only outcomes from the Constitutional Court assessment that Radebe mentioned were seminars and a national conference.

But the outcomes of the overall judicial review would be used to:

• Draw up laws to enhance the role of the Judicial Service Commission and the Magistrates' Commission in speeding up transformation of the judiciary;
• Improve the skills and competencies of judicial officers, enabling them to deliver judgments geared towards the goal of transforming society;
• Establish a mechanism for the state to monitor its own implementation of court decisions that affect government departments; and
• Encourage the three arms of the state - executive, judiciary and the legislature - to engage in regular debates to manage their interaction in terms of the separation of powers and how each arm contributes to the goal of transforming society.

Legal expert Pierre de Vos said yesterday that though he was happy that Radebe had emphasised the superiority of the doctrine of the separation of powers, the minister had said very little about the reasons behind the review.

"It is not clear what the intentions are because we don't know what the terms of reference of the review are or who is going to conduct the review. It makes it more difficult to ascertain what the review is going to be used for," he said.

De Vos said Radebe had also not given an assurance that the review would not be used by the ANC to change the constitution.

"The minister did not exclude the possibility of actually changing the constitution as a result of the review."

DA justice spokesman Dene Smuts said the announcement by Radebe confirmed her party's suspicion that the proposed assessment might be an attempt by the executive to co-opt the courts.

"To co-opt like this is to compromise the judiciary into co-responsibility for policy 'outcomes'. That is not their job. They must interpret the constitution free from political pressure," she said.

ANC chief whip Mathole Motshekga welcomed the release of the discussion document on the transformation of the judicial system.

Last year, senior ANC leaders made a number of public comments that were highly critical of the judiciary.

National executive committee member Ngoako Ramatlhodi called for a review of the constitution, saying it was a "compromise" that had disempowered the black majority, and that those against democratic change ''reign supreme in the economy, judiciary, public opinion and civil society".

The ruling party's secretary-general, Gwede Mantashe, also lambasted the courts in an interview in Sowetan, suggesting that they were hostile to the executive. - Additional reporting by Sapa