Zuma told to toe the legal line

28 August 2015 - 08:28 By OLEBOGENG MOLATLHWA and ERNEST MABUZA

Either follow the law or the law will follow you. This is the stern warning to the government from former national director of public prosecutions advocate Vusi Pikoli. Delivering a Helen Joseph Memorial Lecture at the University of Johannesburg last night, Pikoli said the reason the executive frequently found itself having to answer to the courts was because politicians were loath to obey the law.The executive and judiciary had yesterday held a day-long meeting at the Union Buildings, where they committed themselves to better relations based on respect.In his address, Pikoli said: "It is the politicians themselves who often consciously or unconsciously invite courts to intervene in their matters by not following the law. Courts are not fishers of cases, cases are brought to courts by those who wish to have their disputes resolved through legal means. How do we then blame politicians who make full use of section 34 that entitles everyone to approach courts for the resolution of any legal dispute?''He said what applied to the executive applied equally to parliament. Though MPs had a right to make policies and rules, these had to be consistent with the law and the constitution. If they were not, the courts were constitutionally empowered to invalidate them.Pikoli was suspended as head of the National Prosecuting Authority in September 2007, with then President Thabo Mbeki citing an "irretrievable breakdown in the working relationship" between the minister of justice and the prosecutions director.The breakdown arose after it emerged that Pikoli had secured a warrant of arrest for former police commissioner Jackie Selebi.Pikoli was later fired.Offering scathing criticism of suggestions that the judiciary was over-reaching into matters of the executive, Pikoli said judges were empowered by the constitution to administer justice to those who seek it."Our constitution being of vertical and horizontal application binds all arms of government and all organs of state. It also binds natural and juristic persons. In simple terms, this means that not only are the executive and legislature bound but also the judiciary itself is bound by the constitution, something that the politicians often seem to miss," he said.". you hear cries of 'judicial overreach' and others accusing courts of not respecting separation of powers and yet the courts are only exercising their original powers derived from the constitution itself."Pikoli asked whether certain members of the executive would still shout "judicial overreach" considering that:Parliament prescribed legislation on minimum sentences, thereby taking away a court's discretion;The executive granted parole to offenders, even questionable medical parole;The president had powers to pardon offenders despite misgivings of the judiciary; andThe government had previously disobeyed court orders without any repercussions."What seems to irk the executive and parliament is the fact that judges are not elected but appointed by the executive. The last thing we want in South Africa is another executive-minded judiciary reminiscent of the old South Africa.''The government should not applaud and publicly support only those decisions that suit their interests. What we need is an unwavering and unconditional support for the judiciary as an institution."While civil society should defend our courts, the primary defender of our courts and individual judges - provided there is no serious misconduct or incompetence - should be the minister of justice," urged Pikoli.President Jacob Zuma yesterday met prominent judges - including Chief Justice Mogoeng Mogoeng and the president of the Supreme Court of Appeal, Lex Mpati - following frostier relations between the executive and judiciary triggered by a Johannesburg High Court decision preventing Sudanese leader Omar al-Bashir from leaving the country during the recent AU summit.After the meeting, Zuma and Mogoeng said the parties agreed that both had a duty to protect the constitution and there should be respect for the rule of law.The heads of court had mandated Mogoeng last month to request a meeting with Zuma to discuss the repeated gratuitous criticism of the judiciary by cabinet ministers and other politicians.Zuma said the parties had reaffirmed their commitment to the independence of the judiciary, rule of law and separation of powers. They agreed to exercise care and caution in public statements criticising one another."Failure to do so will undermine the global status of the republic as a bastion of democracy, tolerance, human rights and the rule of law," Zuma said...

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