2005 Volume 2
Mass Hysteria Reigns
by Brett Nortjie
South African Constitutional CourtFor the last few months the media has been in the grip of mass hysteria centred in a complicated mix involving allegations of racism, the appointment of a new Chief Justice and government’s plans to control the judiciary.
Much of the media coverage has been sadly inane. Sunday Times and The Star limited their examination of candidates for Chief Justice to the candidates’ political connections. The valiant, incredibly obtuse plodders at the country’s largest newspapers seem oblivious to the fact that the Chief Justice is in many ways the top academic in our legal system. So we, the great unwashed, are at a loss as to whether our next Chief Justice has published any kind of scholarly work or made a new law in his entire professional life!
The culprits for the crisis the judiciary finds itself in, are easy to get hold of. They hang out at the Constitutional Court. Most members of the Constitutional Court would have been ANC front-benchers, if not Ministers, if they had not been ’deployed’ to the Constitutional Court.
So it is little wonder that the separation of powers between different branches of government -- a basic cornerstone of a democratic state -- was finessed by the CC when they certified that the Constitution complied with the constitutional principles negotiated at CODESA. The CC’s rationalisation was that there is no single acceptable model for the separation of powers between different branches of government.
If the situation was not so desperate the vision of the Constitutional Collective being hoisted by its own petard would fill one with delight. But, we live in a country where the Legislature is firmly controlled by the Executive, where there is not even a semblance of parliamentary control over government departments, where corruption and mal-administration is rife. In other words, a failing state. A burgeoning kleptocracy.
It is clear the ANC is presently engaged in another great push into turning this country into South-Zimbabwe by putting the framework in place to force its hegemonic control on the third branch of government.
S 5(3) of the Arms and Ammunition Act 75 of 1969 provided that the Registrar ’may issue licences in his discretion’ but that his discretion was subject to very clear criteria, most of which fell away with the arrival of democracy because they were unconstitutional.
This is what is known as a peremptory provision (made clear by the phrase ’subject to’) which means that the Registrar had to issue the licence in the absence of the very specific disqualifying grounds. Essentially, a ’shall issue’ system of firearms registration.
A lack of judicial control over the Central Firearms Register allowed a practice to develop that required one to prove a need for a firearm, in order to get a licence for it. This additional requirement of motivating a need was ultra vires, in other words, not authorised by the underlying Act, which meant that the CFR was acting unlawfully. Now, another ultra vires criterion is being imposed subject to which the Registrar exercises his discretion. The amorphous consideration of ”the applicant’s interest together with that of the society and the norms and values of the community.”
Judge Mahomed Ismail is an acting judge. The only way for him to get a permanent seat on the Bench is by not ticking off the ruling elite. Does that place his judgement in context?
What everyone forgets is that exercising control over the judiciary is as simple as picking up the phone and telling the Judge politely but firmly why you think he screwed up.
Phone! Ask Judge Ismail whether the judicial precedent he has created for imposing an arbitrary numeric limit on the amount of guns a person may own is consistent with S 25 of the Constitution which prohibits arbitrary deprivation of property? Ask Judge Ismail where the Arms and Ammunition Act required one to prove a need for a firearm in order to get a licence? Ask Judge Ismail where in the Arms and Ammunition Act he found the requirement for consideration of ”the applicant’s interest together with that of the society and the norms and values of the community?” Ask Judge Ismail to be kind enough to forward those policies in writing, since even in the pre-constitution era our common law protected us by requiring that an administrative body being guided by a policy in the exercise of its discretion had to furnish that applicant with the policy -- in black and white!
How hollow yesterday’s democracy celebrations ring!