PEOPLE appear to have been crawling over each other to get to the top of the pile of those saying justice minister Penuell Maduna is not that bad. They may even be right. We've had larger petrol price increases in the three or so months since he stepped down as minister of minerals and energy than we did in the three or so years he held that office.
This doesn't change the fact that the minister opened his mouth wide and firmly inserted his foot when he attacked some of our judges this week. To summarise, he questioned their cost and value to the country and speculated as to whether there was a need for a separation of the Constitutional Court with the Supreme Court of Appeal. He chose to do so within the confines of the Pretoria press club. He has subsequently paid the price for his lack of vision
I was in two minds. On the one hand, I was paying close attention to the minister's criticisms of the inefficiencies of the judicial system. On the other, I was still scratching this niggling itch that came up when I first heard the story. Something, said the itch, is not quite right with the timing of this tirade. What has been happening of late?
And the answer that finally dispelled the itch was three little words ...
Patricia de Lille.
It was only last week that Chief Justice Ismail Mahomed smacked down the decision of Speaker of the National Assembly, Frene Ginwala, to suspend the minority Pan-Africanist Congress MP from parliament as punishment for unparliamentary conduct. I remember starting to read Judge Mahomed's decision with a tiny smile that soon widened into a grin of sheer pleasure.
I spent a semester studying US constitutional law ten years ago and was hooked. Constitutional law has a very special place in our never-ending quest to design a perfect world. Great constitutional judgments are a form of literature. By their nature, they have to draw upon the works of great masters that have gone before, the accumulated wisdom of a world of civilisation.
American court decisions which defined the practical implementation of the US Bill of Rights — such as Brown vs Board of Education which desegregated schools, or Roe vs Wade which legalised abortion — were works of art sculpted with the collective passions of humanity's quest for freedom.
Judge Mahomed's decision was one of these. He spoke of recognising the need for Parliament to be able to enforce discipline for the Speaker to be able to do her job. But this is overshadowed by the fact that the constitution, not the National Assembly, is the supreme law of the land; that the words laid down in chapter 2, our own Bill of Rights, are to be protected from political influence. More importantly, he established the precept that when discussing matters relating to restricting those rights, the court had a responsibility to err on the side of protection of those rights.
It was a literary tour-de-force invoking influences from global jurisprudence but firmly rooted in our own uniquely South African constitution. It was delivered with the concurrence of all of Judge Mahomed's colleagues on the full bench of the Supreme Court of Appeals who heard the case.
And the point, Minister Maduna, is that such decisions are not arrived at by punching in a clock card at 8am, starting work at 8.30, breaking for tea at 10, lunch at 12.30, stopping work at 4pm and clocking out at 4.30. In short, this is not a <expletive deleted> production line.
Work, if you please, on the prosecutors who mismanage cases, the magistrates who let the criminals out on bail, the tangled bureaucracy that stifles justice. I will be the first to cheer when you fix that mess.
But do not choose to tamper with the institutions that stand, ultimately, as custodians of freedom in our country. History has shown that even conservative courts will protect rights where politicians seek to restrict them.