Like the Nats, the ANC finds courts irksome

Many of us are seized, as the lawyers would phrase it, by recent attacks on our courts by President Jacob Zuma who, as we all know, is extremely familiar with courts of law.

He told a newspaper: "We don't want to review the Constitutional Court, we want to review its powers." He suggested that judges were influenced by the media.

Clearly he does not grasp that the deep body of law around the world has been built up over generations of debate, argument and, finally, majority verdicts. Thus, precedent by precedent, the law has evolved reflecting changing social mores and shifting ideological leanings.

It is from the clash of ideas, of contesting views, that good law evolves. Zuma, it seems, prefers one judge at a time to be in absolute control. Law laid down dictatorially, as in collectivist and fascist societies, is never good law.

Tension between governments and judges stretches back into the millennia. In his short but superb work, The Rule of Law, the late Lord Bingham, England's Lord Chief Justice, refers to Aristotle (384 BC-322 BC) who advised: "It is better for the law to rule than one of the citizens."

There are few better illustrations of this eternal conflict than the attempt in 1937 by the illustrious US president, Franklin Roosevelt, to "pack" the federal courts, including the Supreme Court, with sympathetic appointees so as to remove the obstacle of judicial restraint being imposed on his New Deal policies by federal judges appointed by previous Republican administrations.

In his biography of Roosevelt, my former chairman, Conrad Black (also Lord Black of Crossharbour and currently a guest of the US government), notes that the president "set out ... to lead legislative and executive branches together to repulse the judicial branch of government from a trespass on their prerogatives".

Then there was the disputed razor-thin majority in Florida of George Bush over Al Gore which was upheld in a 5-4 Supreme Court decision widely regarded as reflective of the political persuasions of the federal judges. They are appointed by the president but must be approved by the Senate.

This majority opinion was fiercely criticised by Harvard law professor Alan Dershowitz: "The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history ... the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."

Then there was our very own High Court of Parliament Act of 1952 in which the National Party sought to place parliament above the courts so as to enable it, among other things, to disenfranchise the coloured community.

It aimed, one study says, to "make parliament the ultimate court of appeal on constitutional matters" and "enabled it to set aside, by a simple majority vote in both houses, any appeal court judgment that invalidated an act of parliament".

This High Court of Parliament Act dictated that a decision of the "court shall be final and binding, and shall be executed in every respect as if it were a decision of the provincial or local division of the supreme court in which the matter was originally heard".

It revalidated the Separate Representation of Voters Act of 1951 which had been invalidated by the supreme court five months earlier.

However, the appellate court invalidated the High Court of Parliament Act, the chief justice ruling that the "so-called High Court of Parliament is not a court of law but simply parliament functioning under another name ... Parliament cannot, by passing an act giving itself the name of a court of law, come to any decision which will have the effect of destroying the entrenched provisions of the constitution".

Now we have a new constitution, admired throughout the world, but which some ANC elites say was a sell-out. Like the Nats, whom they increasingly resemble with their racial quotas and bigoted threats, they wish to set parliament above the courts, leaving citizens defenceless against a regime that has been characterised by corruption, incompetence, inconsistency and arrogance.

One often wonders quite what they are being arrogant about.