South Africa

Op-Ed: Are South African courts really over-reaching?

By Alison Tilley 4 August 2015

South Africa’s judiciary has come under attack for deliberately overreaching, but courts should not be put in the position in which they often find themselves – of having to issue orders to hold the executive to account. By ALISON TILLEY.

You may recall Gwede Mantashe in full flow, criticising the judiciary for what he perceives as its bias against the ruling party. To add insult to injury, at the South African Communist Party special national congress, Blade Nzimande told delegates that there was a “a deliberate overreach by the judiciary”.

We want to open the debate. We are not attacking, like we are thought to be, when we speak about the judiciary,” Nzimande told the congress. This followed  the state’s refusal to adhere to an court interdict barring Sudanese president Omar al-Bashir from leaving the country.

The idea of the state not only ignoring court orders, but justifying that action, is deeply worrying to most lawyers. However, there is a good reason non-lawyers should worry as well. Consider the case of Mathloko Motingoe.

Motingoe was employed as the head of legal services at the Northern Cape infrastructure and public works department. In 2013 he blew the whistle on alleged irregularities by the department head related to the tender process of a civil construction work/project at the Theekloof Pass. He was originally suspended by the MEC on November 22 2013. Motingoe has a Labour Court order, and an arbitration award, both saying the suspension was because of his whistleblowing the whistle, and therefore he had to be allowed back to work.

So imagine yourself in this position. You have spoken out against corruption, you have been ignored, reviled, and suspended. You have two orders allowing you back to work, to continue trying to implement legislation passed by Parliament, and to prevent state resources from being stolen. And the state ignores the orders. Worse, the state proceeds to appeal the order, to the Labour Appeal Court – refused – the Supreme Court of Appeal – refused – and currently, the Constitutional Court. The state, as they say, has deep pockets. Well, your pockets, of course.

Now, again, imagine your position. You have done everything right. You have gone to court, and won. You are supposed to be at your desk, doing your job. And your superiors are supposed to be doing their jobs. Instead they are apparently spending money hand over fist, taxpayers’ money, to appeal decisions that are in all likelihood not appealable.

Motingoe will be back in court on Friday, with an interim order in hand, holding the officials in contempt of court. I’d suggest Mantashe should be embarking on one of his excoriating diatribes, saying the court should not be making these orders, and that the judiciary is overreaching. I’d actually agree with him.

The court shouldn’t be making these orders. The court should not be in this position. The absolute failure of proper governance on this issue should not have to be substituted by the court. We should not have to pay for managers to manage, and the courts to manage the managers. It’s double dipping of note.

And the idea of those delinquent managers going to other courts to protect them from the courts that are trying to get them to do their job, is just startling. Especially since you are paying for this whole roadshow. (Well, Motingoe has been paying his own way up until now, and now has the help of the Open Democracy Advice Centre).

Now, how do you feel about the court making orders now? Still think it’s overreaching?

Let me give you another example. I like this one, because it involves the state asking the courts to permit them to deviate from the law, because they can’t get their own house in order in relation to a problem caused directly by the executive. Which the court grants.

More than 100,000 foster child grants lapsed in 2010 and 2011 because social workers couldn’t renew the court orders fast enough. This was as a direct result of the social development minister trying to use the foster care grant to deal with the Aids orphan crisis. The Gauteng High Court provided temporary relief following an application by the Centre for Child Law, by “deeming” the orders not to have lapsed and placing a temporary moratorium on further lapsing. The order provided time for the department to introduce the necessary comprehensive reforms by December 2014.

Department officials unfortunately had to approach the court urgently, at the end of 2014 – urgently, because you know how time flies! – and explain that they had not been able to fix the system, and please, could they have more time. So the court has given them another three years, but this time asked them to report every six months on their progress in retrieving the foster care grant system from complete disaster. Caused by the executive. Overreach by the court?

Yes, in a way. The court shouldn’t be making these orders. The court should not have to be in this position. The executive should not be putting the court in this position. The Department of Social Development did file a report, by the way. Late, and a full page and a half of excuses. The total report, a page and a half.

I would suggest the problem in these cases is not the courts over-reaching, but the executive under-reaching. Under-performance, under-whelming and unacceptable. The state cannot put laws in place and then ignore them. The state is not the executive and the judiciary at odds – it is one entity, which is cannibalising itself, when each does not play its proper role. DM

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