Zikalala renews attack on judiciary

…… editorial  dated 2 April ……       

Shifting the blame for failure…..

It has happened again.

Many have assumed that the disgraceful outpourings of Lindiwe Sisulu, who labelled the Constitution as an impediment in the way of the governing party’s plans to reduce “African poverty,” were merely remarks in isolation from a sour and angry Queen Bee of the ANC. At the same time, she pointed her highly painted fingernail at Chief Justice Raymond Zondo, calling him a “mentally colonized African.” Not a nice thing to say about anybody.

Most assumed at the time that her attack on the Constitution was because of something personal about her new job in tourism, the lady not having been particularly successful in any of the four cabinet postings she has had.    Not so.

Blame game

Joined at the hip in another recent move to blame the Constitution for “judicial overreach” is now KZN Premier, Sihle Zikalala, who chose Human Rights Day to also call for parliamentary supremacy in South Africa.    He claimed that “judicial interference” was the main reason for his party’s failures, this time in KZN and, in this unexpected outburst, for the lack of black advancement in business and industry.

In other words, he sees Parliament, where the ANC has a majority and can bulldoze legislation through, as the final arbiter on all law that governs the citizenry. The consequences would be enormous if law was made in that manner without redress and it was a shock to most that such a statement should come from someone holding the post of premier.

Break with the past

For Parliament to be the ultimate authority in all matters of law it would mean the abolition of a constitution that Nelson Mandela signed into law in 1996 and for this to be replaced with something worked out in Luthuli House. Such a route would the short cut needed to bring about the kind of autocracy exercised by the USSR Kremlin of old and this gives the clue to where much of RET thinking is founded.

It would also seem that such plans were being hatched in a section of the governing party for quite a long period. The idea of cutting out the judiciary must have slowly coalesced amongst the Jacob Zuma clique over the last few years, amongst people who obviously see the continuation of state capture and all its benefits exercised under the guise of black empowerment deals, as highly attractive.  

Turning the gas up

Also, for transformation to happen as if it were a factory process, changes must happen in a kind of hurry-up style that has no respect for accepted values.  For Zimbabwe and the USSR of old, the penalties included state seizure, or “land grabs”.  In the case of Zikalala, knowing this as he surely does, this places him firmly amongst the RET group who, if in power, are incapable of separating law from justice.

Business and industry require a stable and fair set of labour laws to function properly in an open market with an unfettered labour pool such as is called for by the NEDLAC, Concourt looking on as final arbiter.  Investors are happy to know when such a system exists.

Tired of waiting

However, this delicate balance is already being challenged by current Labour Minister, Thulas Nxesi, his proposal being the contentious Employment Equity Bill.   Nxesi is a member of the SA Communist party.  

This proposal is to force transformation by setting fixed numbers of black employees to be employed as a percentage of the total employment number in any one sector. This percentage target is set by the Minister with stiff penalties for transgression.   BUSA has strongly objected to the proposal in principle

Some in business say that a decision on the EE Bill’s future will go have to go “upstairs” to the Constitutional Court with a number of MPs also indicating as such. Whatever might happen, the system will have a safety valve in the form of appeal to the Constitutional Court- a system now being labelled by the RET crowd as “judicial overreach.”

Some rights righter than others

All this debate is of course a slippery slope which can all so easily lead to authoritarian or totalitarian governance if not checked. The State of Disaster legislation, now back on the shelf, was a prime example of a way being found to write Parliament out of the script, as distinct from writing out the Constitutional Court now being suggested by Zikalala.

In the case of the state of disaster legislation, the law that made provision for a command council devised and pulled out of the hat for the Covid pandemic, the resultant short-term answer was to forego parliamentary oversight of medical interventions in the light of the possible slow parliamentary reaction time.

Looking back, the pandemic has covered a period in South Africa’s history that is one of the bleakest ever.

Whether such scandals such as the PPE millions stolen during the height of the pandemic could have been prevented with better oversight, or the total breakdown of state intelligence, defence and police forces during July riots could have been quashed if SAPS had not been asleep on the job, are matters for the National Command Council.

Parliament was taken out of the loop and can only ask for what happened. In general principle therefore, all may have learnt that members of Cabinet should not try and be legislators. That is the route of autocrats and tyrants.

Patrick McLaughlin


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