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25 May 2017
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Cabinet's decision to subject the judgements of the Constitutional Court to research in order to see how they have influenced inter alia socio-economic transformation must rate as one of its strangest proposals to date. It will inevitably be seen as a sinister attempt to bend the Bench to the executive and the ruling party's will, especially given the recent spate of hostile comment from such persons as ANC Secretary-General Gwede Mantashe and Deputy Correctional Services Minister Ngoako Ramatlhodi, and the fact that it is common knowledge that certain judgements are unpopular with the ANC.

The courts are not an instrument of government policy whose output can be measured on performance indicators and other governance criteria. They are there to give authoritative interpretation of the Constitution and the law.

It is difficult to believe that Justice Minister Jeff Radebe would have come up with this idea. Despite his track record on the Judicial Service Commission (JSC) he has consistently respected the doctrine of separation of powers, especially when tabling new Bills such the 17th Constitutional Amendment and the Superior Courts Bills.

If anything, the proposal to assess the role of the judiciary "in a developmental state" is reminiscent of the National Planning Commission's Vision 2030. Its otherwise sound proposals include the strange suggestion that "progressive" judges should be appointed against the background of our socio-economic context.

Quite what "measures" are now to be taken by Cabinet "to enhance the efficiency and integrity of the JSC and Magistrates' Commission" in their appointment function will therefore be keenly watched. Will candidates have to demonstrate progressive political or economic credentials? By contrast, the Democratic Alliance (DA) intends to propose the amendment of the composition of the JSC (Section 178 of the Constitution) when the 17th Constitutional Amendment is legislated for the exact opposite purpose - its depoliticisation.

Cabinet says it wants to affirm the independence of the judiciary by promoting interdependence between the three branches of state - that is a contradiction in terms. A "regular interface" between the three spheres is to be established through "appropriate mechanisms". No formal mechanisms are necessary to pursue the Constitutional dialogue which former Chief Justice Sandile Ngcobo postulated and practised to deal with the tensions that inevitably arise between especially the executive and the judiciary.

Edited by: Creamer Media Reporter
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