NEWS & ANALYSIS

What Jacob Zuma said about the judiciary

Transcript of the President's reply to a question in parliament, March 15 2012

Unrevised transcript of President Jacob Zuma's answer to question in National Assembly, Parliament, Cape Town, March 15 2012

5.  Mr J H van der Merwe (IFP) to ask the President of the Republic:

(1).  Whether he envisages an amendment to the Constitution of the Republic of South Africa, 1996, in order to amend the power of the Constitutional Court, if not, what is the position in this regard, if so, what are the relevant details.

(2).  (a) who will be tasked with assessing the Constitutional Court and (b) what measures will be put in place to ensure that the process does not impact on the independence of the judiciary? 

Reply:

The PRESIDENT OF THE REPUBLIC: Speaker, as you should be aware, there is already a constitutional amendment before Parliament which amends the powers of the Constitutional Court. This is the Constitution Seventeenth Amendment Bill which was introduced last year. Far from limiting the powers of the Constitutional Court, the Bill, in fact, extends its jurisdiction.

One of the provisions of the Constitution Seventeenth Amendment Bill concerns which cases can be taken on appeal from the Supreme Court of Appeal to the Constitutional Court. Currently, the Constitutional Court may consider appeals from the Supreme Court of Appeal that are constitutional matters, as well as issues connected with decisions on constitutional matters. The amendment will allow the Constitutional Court to consider any appeal on the grounds that the interests of justice require that the matter be decided by the Constitutional Court. I am informed that deliberations on the Bill are proceeding well in the Portfolio Committee on Justice and Constitutional Development, and that all parties are approaching the discussions with a view to arriving at the best conclusion for the administration of justice in our country.

I must state that I am a bit surprised by the concerns that have been raised regarding amendments to the Constitution. The Constitution is a living document. As I pointed out in my reply to the state of the nation debate, it is meant to be reviewed annually by a committee of Parliament. The Constitution has already been amended 16 times since it was adopted in 1996. It is a perfectly normal exercise. As stated during the state of the nation address, we reaffirm our commitment to advance the ideals of our country's Constitution. We have alluded to the fact that the kind of assessment we are to embark upon is not unusual. For example, universities and research institutions undertake research at times to evaluate the impact of jurisprudence on the lives of people.

This year marks 17 years of our constitutional democracy and 15th anniversary of the Constitution. It is an opportune time to review the capacity of the three branches of the state in carrying out their respective constitutional mandates and how their efforts have contributed to the establishment of a truly free, equal, nonracial, nonsexist and prosperous society. Continuous assessments done in an open and transparent manner cannot possibly do any harm, especially given the legacy of colonial oppression and apartheid that we must eradicate.

The Minister of Justice and Constitutional Development has released a discussion document on the transformation and role of the judicial system in the developmental South African state. We invite all stakeholders to participate actively to enhance and strengthen our democratic institutions. I thank you, Speaker.

Mr J H VAN DER MERWE: Speaker and Mr President, I am afraid that the President has added to confusion and uncertainty about this matter. On 8 July 2011 you said that the powers conferred on the courts cannot be superior to the powers resulting from the elections, which brings into debate which is supreme. Are we going back? Is it your plan to take us back to parliamentary supremacy or the Constitution? This is what the debate is about. It is clear from what we read and hear that, in fact, it is the ANC's intention and, with respect, your intention to eventually amend the Constitution so that supremacy comes back to Parliament. If you do that, with respect - you know us lawyers, if we want to be unfriendly, we say "with respect." [Laughter.] With respect, Mr President, if you want to do away that pillar of the Constitution, it would be your duty to go back to a form of Codesa.

The PRESIDENT OF THE REPUBLIC: Speaker, I think the hon member must not confuse himself and then claim that he has been confused by other people. [Applause.] The three arms of government have very clear, distinct functions. Those must be respected. The function of this Parliament is to legislate and conduct oversight. Correct? Yes, he is nodding. That is its job. Whilst it is the arm that makes the laws, it does not interpret the laws. That is the duty of the judiciary that must check whether this arm has taken all the necessary constitutional understanding in making the law to ensure that it is not infringing on the Constitution. Is the law constitutional? That is the job of the judiciary. The executive must run the country; that is its duty. In the process of all of this, these different arms respect one another. They work together. They must co-ordinate this, because they belong to one and the same state. It is not the duty of the judiciary to review itself - it can do it, if it wanted to, but other arms have the duty to do so. That is why this Parliament has amended the Constitution 16 times. Dealing with matters of the Constitution is the duty of other arms as well. The executive implements the Constitution as well.

So, what we are saying is that if there are things that are done or decisions that are taken - or you could emerge, as Parliament, and feel that there things you believe that should be looked at - the judiciary could send back a law and ask for it to be looked at again. It is not imposing on you; it is exercising its duty. That is why we have the Joint Committee on Constitutional Review here. We are not imposing on or trying to change the Constitution. We are doing our duty. What we are saying is that in the process of governance, we have to come to a point we will say: Let us relook this. Is it moving properly? This should be done particularly if you are emerging from a system like the one we came from, where we still have to try and get rid of the remnants of some of the negative things that were there. That is the point we are making. [Applause.]

We don't intend sitting every day with the intent to change the Constitution, not at all. We would have done so, if we wanted to. We have a large enough majority to do so, absolutely. [Interjections.] I am telling you we would have. You don't know. Thank you, Speaker. [Applause.] 

The LEADER OF THE OPPOSITION: Mr Speaker, in the hon Minister Rabede's discussion document or in his announcement about the discussion document on the transformation of the judiciary, he noted that the review would be carried out both by independent institutions and by the executive. This was despite a previous statement last year in which he said it would be carried out only by an independent institution. In the President's reply to the state of the nation debate, he committed himself to the separation of powers and to upholding this separation. Will the President not concede that the executive's decision to play a part in this review is itself a serious infringement of the separation of powers? If so, will he insist that only an independent institution should conduct the review because how, for example, would this government feel if the judiciary were to decide to do a wholesale review of its policies and its procedures and its programmes of action? Thank you very much, Mr Speaker. [Applause.]

The PRESIDENT OF THE REPUBLIC: Speaker, I have just said that these three arms have different functions. I don't think the judiciary could stand up and say that they want to review all policies. We are a government. Our functions are not the same. We are a government governing a country. That is the difference. [Interjections.] No ...

The SPEAKER: Order, hon members! Let the President be heard.

The PRESIDENT OF THE REPUBLIC: This is one of the points at which, at times, people say some people want to co-govern. What does a government do? It runs a country. It has a duty on the mandate given by the people to ensure that things go according to what the people want. [Interjections.] Even though we have three arms, they don't have the same function, so you cannot compare it in that way and say simply because government, which is governing, wants to do certain things, it would mean that if that is the case, the judiciary also has that right. It is not a government. I think we must make that distinction. [Applause.] You cannot elevate people to do the tasks they are not supposed to do. This is just like Parliament, which has particular functions that cannot be performed by the other two arms. It can only be done by Parliament. That is what it is, because the independence of these is not absolute; it is relative. That is what it is, because we are governing a country. [Applause.] That is the reality. So, what the Minister has said is absolutely correct. Thank you, Speaker. [Applause.]

IsiZulu:

Mr V B NDLOVU: Ngiyabonga Somlomo, mhlonishwa Mongameli, imoto imikiswa egaraji ukuyoseviswa ngoba kukhona okubhedayo kuyona. Kukhona abantu abakhanda izimoto ngoba isuke ingalungile leyo moto. Ingabe impendulo yakho isho njalo yini, ukuthi into esiyenza la eNdlini kufanele iyobhekwa ngoba ayilungile ukuze sikwazi ukuyilungisisa. Usho njalo? [Uhleko.]

The PRESIDENT OF THE REPUBLIC: Ngiyabonga Somlomo, into angayishongo iLungu lePhalamende elihloniphekileyo ukuthi abafani abantu. Kukhona abayisa imoto ukuthi iyoseviswa ngoba kukhona okonakele, kukhona abayimikisa kungakonakali lutho ngoba bafuna imoto yabo ihlale iqondile ithe ngqo.

Angisho ukuthi thina sithumela izinto ziyolungiswa ngoba sekukhona okonakele ngazo, cha, sizama ukwakha sakhisise isimo sokubuswa kwezwe ukuthi libuseke ngendlela ephilayo. Njengoba siqhuba nje siwuhulumeni, mhlawumbe ongaphandle kukahulumeni akakuboni lokho. Kukhona izinto esibona ukuthi azihambi kahle, zifuna ukulungiswa. Kufana nomuntu onemoto, ongenayo imoto ngeke athi ayiseviswe le moto yakho, [Uhleko.] ngumshayeli oshayelayo othi manje ngiyoyisevisa manje. [Uhleko.] Injalo indaba Gatsheni. [Ihlombe.] Siyabonga Somlomo. [Ihlombe.]   

English:

Mr B H HOLOMISA: Mr Speaker and hon President ...

IsiXhosa:   

... ingxaki wena, mhlekazi, kulo rhulumente wakho kukuba nisuke nibe baninzi abantu abathetha into enye, kodwa niyitolike ngeendlela ezahlukenyeyo xa niphambi komboko, nikhuphe imiyalezo eyahlukeneyo. Kodwa ke, ndiza kubuza umbuzo oza kunceda khon'ukuze usicacisile sikwazi ukuyivala le nto namhlanje.

English:

You were quoted in the media as having said that the primary purpose of assessing the work of the Constitutional Court was to review its powers. However, later on, government issued a statement purporting to explain your media pronouncements that the primary purpose of this exercise was to conduct an assessment of the judgments of the Constitutional Court. Can you take the nation into you confidence, sir, by explaining what prompted this exercise in the first instance and also clarify which of the aforementioned government intends doing?

IsiXhosa:

Khawucacise ngoba ngoku siyavumisa, Nxamalala, asisaboni kakuhle.

[15:16:05]

English:

The PRESIDENT OF THE REPUBLIC: Speaker, these different arms of government have powers. Everything they do in practice derives from the powers. Whether you make the laws, you use the powers that you have as Parliament and you make the law. Those who look at the law might, and they have done it in the past, say that the law is unconstitutional. So, in exercising our powers, we have not always been accurate as this House. There are laws that have been sent back, because in the process of the exercise of your powers, you might make mistakes, not deliberately. The executive has been taken to task on decisions it makes on the basis of the powers it is given by the Constitution, as well.

Equally, the judiciary makes decisions - judgments - that, at times, are actually overturned by it. Other levels of court make judgments; the higher courts overturn them, saying that the judgments were not correct. So, the issue of powers and decisions cannot be separated. If we say that we are reviewing and assessing whether these decisions or functions that have been undertaken emanate from the powers and are fine, we just want to make sure that everything is done according to what needs to be done in the country. That is what we are saying.

The very fact that this Parliament has, in fact, reviewed about 16 aspects of the Constitution tells you the story. Nothing is perfect. Only God is perfect; He does not make mistakes. We make mistakes, and that is why He had to sacrifice his Son to come and help us.

IsiZulu:

"... sesenze nesono". [because we sinned.]

English:

Thank you, Speaker. [Applause.]

Source: Hansard

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