10 April 2012

South Africa: Prof Liebenberg - Prescribing to the Court Is 'Inappropriate'


In an opinion article published on PoliticsWeb, Prof. Sandra Liebenberg - H. F. Oppenheimer Professor of Human Rights Law at Stellenbosch University - asks whether proposed review of ConCourt is a threat to judicial independence.

In 1998, she says, Prof Karl Klare described the South African Constitution as "a transformative constitution", by this he meant that the Constitution was adopted to enable and guide deep and far reaching changes to our political, social and economic institutions. "These changes should be in the direction of greater social justice, equality and participatory democracy."

"The rights in the Bill of Rights are not only enforceable against the State, but also against powerful private parties - such as banks and multinational corporations - where they violate or threaten human rights. The Courts have wide powers to grant effective redress for human rights violations," Liebenberg notes, adding that cracks seem to be appearing with increasing signs of government wanting "to exert greater control over our independent media through the proposed Media Appeals Tribunal, as well as the introduction of the widely criticised Secrecy Bill." In addition, certain statements by senior ANC members and members of government in the past two years regarding the fundamental constitutional pact "have given rise to deep disquiet."

What is of concern, Liebenberg says, is whether the proposed review of the transformational impact of the decisions of the Court and the recommendations which will flow from this review signals an intention to interfere with the independence of the judiciary. This would be in direct conflict with s 165(4) of the Constitution which requires organs of State to "assist and protect the courts", ensuring their "independence, impartiality, dignity, accessibility and effectiveness." It is thus not appropriate, she says, that the legislative or executive branches of government attempt to prescribe or even recommend to the Court how it should exercise its responsibility to adjudicate disputes in terms of the Constitution.

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