DR MATHOLE MOTSHEKGA'S VIEWS ON THE COURTS AND ON THE CONSTITUTION

In an interview in Rapport on 19 February, ANC Chief Whip Dr Mathole Motshekga, continued the government's orchestrated campaign to white-ant the courts and, by extension, the Constitution (see here). He stated inter alia that

• "certain people" wanted to hand over the powers of parliament and President Zuma to the courts;
• South Africa was being transformed into a "one-party state" led by unelected courts;
• President Zuma's recent statement that the government wanted to review the powers of the constitutional court were not unconstitutional or out of order - but were simply a reflection of public concern over the power of the courts; 
• "for most people it appeared that the government had to ask the permission of the courts before it did anything" and that this was the case even though " the government derived its mandate from the people, while the courts comprised only a handful of people."
• amendments to the Constitution were not excluded - but would not interfere with the fundamental rights of South Africans.

Dr Motshekga shed some light on the government's plan to review the judgments of the Constitutional Court during the past 18 years to see how they had affected transformation. The objective of the review would be to clarify the situation that had arisen because "some people misunderstood the powers of the courts". It was in "the national interest to gain clarity on the powers of the executive, the courts and the legislature."

Dr Motshekga was particularly aggrieved by elements "who used the courts for their own narrow interest and to prevent transformation." He was also upset with "political parties that run to the courts with bills before parliament had dealt with the legislative process" - although he could not provide any example of where this had actually happened.

Dr Motshekga's statements are irreconcilable with the principle of the separation of powers that underlies our Constitution.

There is, in fact, no lack of clarity regarding the respective powers of the executive, the legislature and the courts. They are all lucidly spelled out in the Constitution that the ANC itself, and other parties in the Constitutional Assembly, adopted fifteen years ago.

The National Assembly the power to amend the Constitution and to pass legislation on any matter, except those matters that fall within the exclusive functional area of the provinces. In other words, the legislature has full legislative authority "on any matter" provided only that the laws that it adopts are compliant with the Constitution.

In the light of his comments regarding constitutional amendments, Dr Motshekga should bear in mind Section 74 (1) (a) of the Constitution. It provides that the foundational principles in section 1 - which include the supremacy of the Constitution and the rule of law - may be amended only by 75% majority in the National Assembly.

The executive authority of the Republic is vested in the President who exercises this authority together with other members of the cabinet by implementing national legislation; by developing and implementing national policy; by co-ordinating the functions of state departments and administrations; by preparing and initiating national legislation; and by performing any other function provided for in the Constitution or in national legislation.

Thus the President enjoys full executive authority that is limited only by the necessity of ensuring that executive conduct and policies are compliant with the Constitution. (It is, however more difficult to see from whence he derives any power to review the powers of the courts).

It is also important to note that the one of the President's overriding duties is to uphold, defend and respect the Constitution as the supreme law of the Republic.

The judicial authority of the Republic is vested in the courts. The Constitutional Court is the highest court in all constitutional matters. It makes the final decision whether legislation or executive conduct are constitutional. It is also relevant that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and with fear, favour or prejudice.

Dr Motshekga would do well to note that no person or organ of state may interfere with the functioning of the courts; that organs of state must assist and protect the courts and that court decisions and orders bind all persons and organs of state to which they apply. When considering constitutional amendments he should read section 167 (4) (d) which states that only the Constitutional Court may decide on the constitutionality of any amendment to the Constitution.

Thus, the government's problems do not arise from any lack of clarity about the respective powers of the legislature, the executive and the judiciary. Neither is it a question of reactionary courts obstinately standing in the way of transformation. Many of the cases that the government has lost have been pro-transformation - such as Grootboom and The Treatment Action Campaign. Others have involved unconstitutional legislation and abuse of executive power - such as Glenister and Simelane - and still others relate to cultural and language rights - such as Lourens.

The government's problems with the courts arise from the fact that unconstitutional laws and government conduct have repeatedly been struck down by the courts. Neither is there any basis to the charge that the courts are exceeding their powers. They are simply carrying out their constitutional duty to make sure that legislation and executive conduct comply with the prescripts and rights set out in the Constitution. The freedom and fundamental rights of all our people and the preservation of our constitutional democracy depend on their being able to continue to do so.

Dr Motshekga assures us that South Africans need not fear that their rights would be diminished in any way by a constitutional amendment that would presumably "review the powers of the courts". But who then would protect their rights - and particularly the rights of individuals and minorities - against the rampant power of an executive that believes that its interpretation of the views of "most people" should outweigh the judgments of "a handful of people" in our courts?

Dave Steward, Executive Director of the F W de Klerk Foundation

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