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What has gone wrong with our Constitutional Court?


What has gone wrong with our Constitutional Court?

Recent judgments, not least its latest Zuma one, smack of personal predilections and politicking

Ziyad Motala

For many years, our Constitutional Court basked in glory. It was lauded worldwide. Its judgments were studied in legal academies around the world. Many of our judges were in demand to teach seminars on the court’s enlightening and rich jurisprudence. Our citizenry has been so preoccupied with inept and corrupt government that we have been inattentive to the performance and at times sloppy jurisprudence emanating from our highest court. The recent directive and rehearing of the incarceration of former president Jacob Zuma, calling on the parties to make submissions on the implications of the International Covenant on Civil and Political Rights (ICCPL), is a wake-up call.

Jurists look not only to the result of a court decision, but more importantly to the quality and depth of reasoning, even if one disagrees with the result. Of late, some important court decisions represent a prattle of nonsense leading to whispers that our apex court at times projects as a junior moot court bench.

One decision is worth highlighting to forewarn of the problem and danger of the Constitutional Court pursuing the same trajectory in the Zuma matter. In the New Nation case, the court was faced with the question whether individuals had the right to contest national elections outside the framework of a political party. The collective bench of a possible 11 judges took more than nine months to deliver its decision. The majority purported to invoke international law and ruled that an individual has a right to contest elections outside the framework of a political party. No other international tribunal or court has reached this conclusion. The majority decision apparently derived its conclusion from a litany of excruciatingly painful, non sequitur quotations not even remotely related to the issue at hand. This, like lower court judgments based on distorted ramblings, has become, justifiably, an object of scorn...

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