Reply by Dene Smuts MP, Democratic Alliance shadow minister of justice, to Jacob Zuma's state of the nation address, national assembly, June 4 2009

State of the Nation debate: Judicial independence lies at the heart of democracy

We were greatly encouraged by the Hon President's remarks on Wednesday on the enhancement of judicial independence, even if that independence was rhetorically presented as part of transformation. The reference to independence was welcome because it was necessary.

I would like to say to the Hon. President that I can think of no single act of statesmanship that would more resoundingly restore confidence in this government's commitment to our constitutional order than the appointment in a few months' time, of a good choice for a Chief Justice. It would help with economic confidence too.

That appointment will be perhaps the single most important function our Hon. President will fulfill during his tenure as head of the executive.

He may also appoint a new Deputy Chief Justice. That would happen should he decide to elevate the sitting Deputy to the position of Chief Justice when our esteemed Chief Justice, Judge Pius Langa, retires.

The  difference between those two positions and the appointment of the other Constitutional Court judges is that he can appoint a person (or in the second scenario two persons) of his choice.

He does not have to draw on any list emanating from the Judicial Service Commission. He will choose, and not in consultation with, but only after consulting with the JSC and the leaders of parties represented in Parliament.

Mr George Bizos has said that his predecessor President Mbeki never departed from the JSC's recommendations. We hope that he, too, will take wise counsel.

Because our constitutional order has been shaken to its foundations over the last year by unwise and sometimes wild comment about the judiciary, such as charges of counterrevolution made against our judges.

There was an aftershock as recently as last weekend, when our new Justice Chairperson the Hon. Ramatlodi said that judges should know their place. But he offered an explanation, unasked, on the occasion of his election, and we acknowledge his assurance that he believes our independent institutions need to be restored and given their rightful space.

We have often felt this last year, Sir, that we were losing South Africa. Because it is no exaggeration to say that if the courts crumble, the whole of the constitutional construct comes crashing down, pillar and pediment.

The courts are part and parcel of the constitutional architecture, but let us never forget that they are separate and subject only to the Constitution and the law, and that they are the authoritative interpreters of the supreme law.

Ons is die wetgewende gesag van Suid-Afrika, dit is ons werk om uitdrukking te gee aan die grondwet en die fundamentele menseregte wanneer ons wette skryf of herskryf.   Ons is die frontlinie wat die grondwet moet laat geld. Maar die howe is die laaste linie en die uiteindelike waarborg van die grondwetlike bestel, want dit is daarheen dat wette verwys kan word en dit is daarheen dat elke burger hom of haarself kan wend vir beskerming.

The courts can strike down our work or government's conduct for unconstitutionality. We have a particular duty to the people, as Parliamentarians, as one arm of the State, to protect that other separate power and to  prevent any inroads on the status or the stature of the judges - the very people who can throw out or suspend or send back months and years of our work.

Because if there are no such courts, there is no supreme constitution. Then Parliament is sovereign again as it was until we created our constitutional democracy, and then our hon President becomes just like Mr PW Botha, who set up next door in Tuynhuis as an Executive President.

We don't want that and he will not want that. I hope that he will send a clear signal of statesmanship and constitutionalism when he appoints a Chief Justice.

No doubt there is more than one good choice available on the highest Bench. But it is interesting to remember that when natural successors are passed over, confidence can be affected. Judge Michael Corbett, recently departed, much loved and rightly honoured, was the natural successor in 1986 when Judge Rabie was due to retire. The Hon President will remember only too well that these were the Emergency years. Judge Rabie himself, reappointed, was instrumental in getting the right man  - Judge Mick Corbett -  appointed after his own extended service. The then Justice Minister, the late Kobie Coetsee whom many of us remember for his many contributions to the founding of our new constitutional state, was said to have been toying with another choice altogether.

It can make a very big difference to have the right person in the right post at the right time. When the right people make the right appointments in turn you make new countries. Or you recapture them.

Issued by the Democratic Alliance, June 4 2009

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