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Justice Minister Jeff Radebe has yet again avoided answering a parliamentary question requesting an explanation on an indefensible statement made in the Discussion Document on the Transformation of the Judicial System.

Judicial independence is not an “evolving concept” that can be “shaped by realities” of any description, especially “political” ones as is claimed. Judicial independence means that judges are left alone to adjudicate on matters brought before them and that their rulings are shaped only by the facts, the law and the Constitution.

Last week the Minister took similar evasive action when I asked him which judgements are “perceived” to stand in the way of transformation, a bald statement made in the Discussion Document.

In his reply yesterday he devotes the entire answer not to the independence of the judiciary but to the separation of the powers. Perhaps the Minister chose to answer a question not asked precisely because he does have a good track record on the separation of the powers: he repudiated his colleague Deputy Minister of Correctional Services Adv. Ngoako Ramatlhodi in the National Assembly; he corrected the President who thought he could clip the Constitutional Court’s wings by reviewing its powers; and he has also written the separation of the powers into the terms of reference of the assessment of the work of the Constitutional Court and the Supreme Court of Appeal ,which is out on tender. The Justice Minister has in this way again thwarted any Presidential plans to checkmate the checks and balances.

In addition, he has tabled the first of four laws which will for the first time give the judicial branch not just judicial but also institutional independence: the Constitutional 17th Amendment Bill and the Superior Court Bill. The third and fourth in the package, which emanate from the judges themselves, will be the Judicial Council and Independent Administrative Agency Bills.

It is abundantly clear that there is a battle playing itself out within the ANC between constitutionalists and anti-constitutionalists.

It is in my view no accident that the Discussion Document and the accompanying Assessment have been placed in the hands of Deputy Minister Andries Nel, who also had the task of leading our reaction to the comparable “study” into the jurisdiction of the SADC Tribunal, a regional human rights court comparable to the European Court of Human Rights, and which is no more.

The only difference is that the SADC Tribunal was suspended by all the regional Presidents – but not the Justice Ministers – after its rulings against the Zimbabwean government’s farm grab policies pending the “study” and review of its powers – but never revived.

In South Africa, the Constitutional Court can be neither suspended nor dissolved. But the device of commissioning a “study” or “assessment” is remarkably similar, and conveniently camouflages a war that is being waged in the ruling party.