By Annisa Essack
17:01:2022

The back-and-forth regarding the controversial op-ed penned by Tourism Minister Lindiwe Sisulu has garnered many responses in her defence and support and against her. The article contended that mentally colonised” black judges had “settled with the world view and mindset of those who have dispossessed their ancestors” and was slammed on Wednesday by Acting Chief Justice Raymond Zondo for what he described as an unsubstantiated and insulting attack on black judges.

Radio Islam International Invited University of Cape Town Law Professor Dr Cathy Powell and the Director of Accountability Now, Advocate Paul Hoffman, to share their views on the issue.

Some have said that her arguments are baseless, shallow, but undoubtedly political, especially as she has harbours presidential ambitions.

However, the debate has highlighted some critical issues and Mawlana Ravat, who hosted the guests, brought these to the fore.

Dr Powell responded to Mawlana Ravat’s question regarding whether we are too sensitive regarding criticism of the Constitution and the judiciary, which does not bode well for democracy. She said she disagreed that more criticism was needed. Still, a proper response to the wrong type of criticism is required and does not help to bring positive change. She further stated that most Black judges applied the Constitution to instruct the executive to better the people living n poverty. Sisulu, she says, ignored this as she provided no references to the accusations made. She opined that giving oxygen to this kind of critique or “rubbish”, as she called it, was worth it. She also pointed out that providing this kind of criticism any airtime means we are sowing disinformation.

Dr Hoffman said politicians or members of the Cabinet had taken an oath to uphold and protect the Constitution. Those who rubbish it should resign from their position and start an anti-Constitution Party or Movement. Hoffman says that the promotion of the Bill of Rights has been overtaken by a program called National Democratic Revolution. He believes that the ANC and its allies “are striving for hegemonic control of all believers of society.”

He says that Sisulu must either retract and apologise or resign. Furthermore, he added that the President needs to fire her if she does.

On the reaction of Deputy Judge Zondo, Prof Hoffman says he gave Sisulu “an honourable exit” as he was aware that contempt and scandalising of the Court is still an offence in South African law. Hoffman says that Zondo offered her an olive branch, and by not accepting it, she has intentionally gone out to rubbish the African judges in the judicial system. Calling the Deputy Chief Judge’s measured and the careful response he has given her opportunity for an out, but she remains unremorseful and unrepentant.

Providing her opinion regarding whether the Constitution plays its part in tackling the many issues faced in South Africa, Dr Powell said that all the political rights are contained in the Constitution; however, the infrastructure to hold the Executive to account when it does not act under the Constitution is missing.

Powell added that presently, the judges were the go-to people when the prescripts of the Constitution were not followed, and this could provide a reason why certain factions of the ANC are hostile to judges.

She also suggested that the Zondo report called for another independent agency against corruption and other Chapter 9 institutions with muscles to step in when the Executive abuses its power for personal profit. Another suggestion was changes made to the voting system to ensure that parties did not wield so much power.

On the issue of critique of the judges, she said the problem and solutions should accompany it.

She concluded that we should all criticise the Constitution and the judges properly to ensure that we do so for a better country.

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