JUDGES who feel “insecure” when criticised by the executive have to “learn to live with it and remain independent” – but politicians “must ensure that they do not compromise this independence by the severity and nature of their comments”.
This is the view of Justice Zac Yacoob, who retired from the Constitutional Court this week after 15 years on the bench, reflecting on, among other things, calls from the government to review the roles and powers of the judiciary.
Justice Yacoob spoke to the Sunday Tribune from his Durban home on the eve of a trip to Canada, where he will give talks on the theme of South Africa’s constitution.
“In much the same way the government feels threatened, so the courts sometimes also feel threatened,” he said.
But he shrugged off as nothing more than an “emotional expression” statements from senior members of the government who called judges “counter-revolutionary” for delivering judgments they didn’t like. “We should remain independent and politicians should be allowed to say what they like.
“I think our judiciary is strong enough. Some judges do feel insecure when criticised by the executive – I’m not saying these are judges of the Constitutional Court – but they have to learn to live with it.”
Bucking the trend of opposition to a review of the judiciary, first mooted by President Jacob Zuma at the beginning of last year but since put on hold, Justice Yacoob said “everybody has the right to review and criticise” the work of the Constitutional Court.
“The only (question) is what to do with it, and if the review leads to amending the constitution,” he said.
He also encouraged debate on the power to amend the constitution, saying this had been important for it to remain “living, flexible (and) relevant”.
This week he said should the ANC, or any party, get a two-thirds majority and decide to amend the constitution, the Constitutional Court would still be the “final adjudicators” of whether the changes were in line with the guiding principles enshrined in it.
“I have no trouble with the constitution being amended. We (judges) get our legitimacy through the constitution, which was adopted by so many people. If the government and Parliament amended the constitution with the required majority and without offending the principles of the constitution, as far as I am concerned it’s no trouble.”
Real steps to strengthen the judiciary would include “more training of judges in the ethos of the constitution”, while the problem of access to justice was a different issue, worsened by poverty and coupled with lawyers who “charged too much” and “insufficient” legal aid.
Improving access to justice would require more legal aid and pro-bono work, as well as organisations, funded either nationally or internationally, which made justice accessible.
He said discussions about the separation of powers arose when the executive felt the judiciary had “overstepped its bounds”.
“When the government gets upset about a judgment of the court, well, I find it quite understandable – but it’s wrong. They fall back on (argument of) the separation of powers when they feel the pinch,” he said.
“(But) the government is enjoined by the constitution to obey court orders. They can criticise, but when it is unjustified, people like me will speak out.”
On the trend of political parties resolving internal or parliamentary squabbles through the courts, Justice Yacoob reaffirmed the right of individuals to do so, but questioned whether this avenue was sometimes chosen “prematurely or too often”.
“I would like a situation of people going to court only when all other reasonable avenues are exhausted. Part of the problem is that both sides don’t try hard enough to talk,” he said. “It’s much better to do something by consensus than by court order.”
He also criticised opposing parties for changing their positions in court, citing the example of the government becoming “more accommodating” in the courts, rather than earlier when “expensive” court proceedings could have been avoided.
An example of this was the DA decision to resort to the courts when the ANC blocked a motion of no confidence in Zuma in Parliament.
“The reason that (case) went to the court is people didn’t talk to each other enough,” he said.
He said court papers filed by Speaker of Parliament Max Sisulu indicated new rules relating to motions of no confidence would be drafted, and this was an admission that there were problems, he said.
This could have been resolved without the courts if “at a basic level” parties had talked to each other first. “It’s a culture of political parties having to oppose each other as a matter of principle. We need to change that so people talk to each other,” he said.
Justice Yacoob singled out the Irene Grootboom judgment by the Constitutional Court as setting the important precedent of entrenching socio-economic rights – an international first.
While Grootboom died without ever having a house, despite a ruling in her favour, the role of the court had been to “set out general principles” and it was the state’s obligation to bring these principles to fruition.
The biggest challenge facing the judiciary was one the whole country faced, he said, namely the belief by some South Africans that the passage of the constitution in 1996 had achieved democracy.
While the Constitutional Court was characterised by persuasive discussion, in part necessitated by the fact that all 11 judges had to “sit… and work together” on every case, Justice Yacoob expressed disappointment that not a single woman had been selected by the Judicial Service Commission (JSC) to replace him.
“I hope the president will ask the JSC to try to find women and give him the names of women in addition to the four (people already put forward). If the president wants to, he can appoint more women.”
Justice Yacoob plans to “continue working towards achieving the objectives of the constitution”, including teaching constitutional law at the universities of Pretoria, the Witwatersrand and KwaZulu-Natal.
He will also serve on the board of social justice advocacy group Section 27 and chair the South African National Aids Trust.