SUNDAY TIMES - So many questions with Minister Andries Nel,,
Sunday Times STLive By Chris Barron, 2012-03-04 00:15:36.0

So many questions with Minister Andries Nel

Justice Minister Jeff Radebe's briefing on the government's planned review of the judiciary has left some confusion about its intentions. Chris Barron asks Deputy Justice Minister Andries Nel ...

The president says the government wants to review the powers of the Constitutional Court, the minister of justice says the government has no intention of interfering with the powers of the court. Who do we believe? The president was articulating views in the context of a debate that's already before parliament. The minister was talking very specifically about the assessment exercise.

So the purpose of this review ... The word "review" keeps coming up. We are saying it's an evaluation. In the legal context generally, you review something with a view to setting it aside or changing it. That is not on the agenda. We have no power to review judgments of the CC.

The purpose of this evaluation is what? To evaluate the impact of judgments of the court on society in the context of transformation.

Is there a feeling in the government that the CC is getting in the way of transformation? That is definitely not the premise of this assessment.

Then why is it necessary? The government assesses its work all the time. And assessments are not only about what is wrong. They're also about how we can do what is right better. If the assessment decides that some judgments of the CC have not contributed to transformation, what happens then? That proceeds from the premise that there is unhappiness with a judgment or judgments, and now we want to assess, looking for something wrong.

Is there a feeling in the government that the CC could be doing things better? Even things that are done well can be done better.

If the assessment concludes that things could be done better, is the government going to lean on the CC to improve its act? It would depend on what it is that the assessment identifies could be done better. If it's policy and administration, the executive would have to do that. The point is that each arm of the state is co-equal and co-responsible for realising the objectives of the constitution. So the judiciary might have its own things that it would need to do.

Who would tell the judiciary what it needed to do? We would be engaging in a dialogue with the judiciary.

Wouldn't this come close to infringing on the independence of the judiciary? Not at all.

What happens if the CC feels it's working just fine? That is the kind of discussion that becomes difficult to reduce to a sound bite.

Wasn't the original idea to assess the performance of the CC? It was to look at what impact the judgments of the court had had in terms of transformation, and an integral part of that is looking at the extent to which other organs of state have been able to give effect to those judgments.

Is it the job of the courts to drive transformation? We have a constitution which spells out a vision of what we want our country to be, and all organs of state have an equal responsibility to realise that vision.

So it's the job of the courts to drive government policy on transformation? No. Transformation is an imperative that is mandated by the constitution. The responsibility of the courts in terms of transformation is something that derives from the constitution, not from government policy.

Is it the job of the government to tell the CC how to interpret the transformative elements of the constitution? It's not the job of the executive to tell the CC how to interpret the constitution, but there's nothing wrong with it assessing the impact its judgments have had on society.