Don’t let narrow interests affect constitution, warns judge
THE constitution is not cast in stone but it should never be changed "only to pander to narrow, sectarian interests", said Deputy Chief Justice Dikgang Moseneke on Friday.
In his Ruth First Memorial Lecture delivered at the University of the Witwatersrand, Justice Moseneke addressed, though not explicitly, many of the continuing, sometimes heated, debates about the role of the judiciary in South Africa.
Some in government, including President Jacob Zuma, have questioned the way courts have set aside decisions and laws of the democratically elected executive and Parliament. Others have taken a view on the other end of the spectrum: that any attempt to change the constitution would be a threat to constitutional democracy.
Justice Moseneke said the constitution was the most recent expression of the "collective convictions" of the people of South Africa. Debating whether it was "perfect, or whether it is a sufficiently progressive bargain" was a necessary, and useful, debate — provided it was remembered that the constitution had been settled by "the democratic principle".
"The unanimous representatives of the people installed it as our first law," he said.
"Of course the people, through their representatives, may change it. They have indeed done so at least 15 times before. Amending the constitution is the prerogative of the people who installed it, provided the requisite majority is present and the formalities of the Constitution are followed," he added.
The constitution "never was, and is not, cast in stone and yet it should never be changed only to pander to narrow sectarian interests", he said.
Justice Moseneke said the constitution enjoined all organs of state to be transparent, accountable and responsive. "These values cannot now dissipate under the madness of incumbency," he said.
This applied equally to the judiciary. "In my personal and judicial life I may not act unlawfully or inimical to the vision of our people as encrusted in law and valid policy."
He said he welcomed public debates on the "merits of the reasoning and outcome of my judgments", adding: "And yet it is singularly unhelpful to suggest that because one differs with a judgment or outcome the judge concerned is serving an ulterior goal or political party.
"Judges are accountable to all our people and to no political or ideological tendency … In some instances, judges get the facts or the law wrong. That tells us nothing about their judicial probity. Our democratic system, like most in the world, readily acknowledges judicial fallibility and arrests that risk by creating a hierarchy of courts with appellate responsibility."
It was important to "debunk the mystery around judicial function", he said. The role of the courts was "not proactive, but reactive ... We don’t choose cases; they choose us."
Thus the role of judges was also limited by the kinds of cases that came before them and their facts, he said. So while the courts had done a remarkable job with cases of discrimination, socioeconomic rights and workers’ rights, there had "sadly" been very few cases coming before the courts on land restitution or expropriation.
"It may be that the property and restitutionary provisions in section 25 of the constitution on land have been underworked," he said.
At the end of his lecture, the deputy chief justice got a standing ovation from the packed auditorium at the New Wits Arts Gallery.