Yesterday, the issue of separation of the powers of state was raised in Parliament when President Zuma suggested that the judiciary should not interfere with policy decisions taken by the executive, and that it was the sole discretion of the executive to decide on government policy.
However, if executive action infringes on the Constitution in any way, recourse can and must be sought through the courts.
Yesterday in Parliament, I referred to an address given by Chief Justice Ngcobo at UCT last year, during which he postulated the concept of constitutional dialogue between the three branches of state. He said that this should be the defining feature of the distinct South African doctrine of the separation of the powers. In his view, criticisms directed at the judiciary from time to time, usually triggered by a judgement perceived to stray onto another branch's turf, miss the point that a certain tension is to be expected when the Constitution assigns each branch its role, but contemplates some encroachment of one upon the other.
The president yesterday reiterated the remarks he made at the July Judicial Conference on the encroachment of one branch of state on the terrain of the other. At that conference, Judge Arthur Chaskalson said that he saw no assault on the judiciary in the remarks. I say, as Judge Ngcobo does, that tension must not necessarily be seen as conflict.
However, we will approach the courts whenever our constitutional rights are at issue, and it was beneath the President and the House of Assembly to suggest that we do so when we cannot win elections.
Judge Ngcobo has said that dialogue should aim to harmonise relations in the structural unit built by the Constitution to keep it from falling apart. While I believe that putting this harmonisation in the framework of cooperative governance is taking a good thing too far, I think that the concept of constitutional dialogue will be one of his great legacies.
Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, November 2 2011
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