(Budget vote debate in Parliament: Justice and Constitutional Development)
The Department of Justice and Constitutional Development's mandate is to promote constitutional democracy in South Africa. This must be evaluated in light of the Department's ability to uphold and protect the Constitution and the rule of law, and to render accessible, fair, speedy and cost-effective administration of justice in the interest of a safer and more secure South Africa.
The FF Plus shares the opinion of professor Koos Malan from the University of Pretoria who published a book in 2019 entitled "There is no Supreme Constitution".
It sets out to dispel a set of myths perceived in our Constitution. The Constitution is not the supreme rule of law and is certainly not consistent throughout nor is it permanent.
If individuals rely on it for protection, they are living in a fool's paradise. The Constitution is vulnerable to potent socio-political forces, it changes continuously and often profoundly regardless of stringent amendment requirements.
The trite threefold separation of powers is more metaphorical than real and, therefore, unable to secure effective checks and balances.
Though institutionally separated with their own personnel and functions, the three powers are ordinarily integrated in a single dominant political leadership, committed to achieving the same ideological goals.
The bill of individual rights cannot guarantee justice, because rights are subject to the ideologically-driven exercise of judicial interpretation, often with damaging consequences for those relying on the bill of rights.
South Africa needs an improved mode of constitutionalism, equipped with a sounder system of checks and balances and better endowed towards the achievement of justice through a balanced constitution.
According to the Constitution, the public sector, which includes the public service, must be unbiased and professional.
Consequently, establishing patronage relationships, appointments, promotions, service provision and the allocation of contracts based on the involvement in or in exchange for loyalty to the ruling party or any of its factions are not permissible and unconstitutional.
Since the Constitution came into effect, there have been powerful forces marginalising these values and principles.
The South African judiciary must uphold these values.
The report by the parliamentary Committee on Justice tells a story of a Department full of vacant critical positions on senior management level, an underfunded Special Investigating Unit, a reduced budget for the National Prosecuting Authority and vacancies at the Information Regulator.
Other causes for concern include service delivery at the Master's Office, another turn-around strategy for the State Legal Services, backlogs with cases in lower courts, a lacking and politically motivated Human Rights Commission, a politically motivated and failing Office of the Public Protector, poor contract management resulting in irregular expenditure, the ineffective management of personnel, jeopardised physical and information security and an inadequate disclosure process relating to the contingent obligations of state attorneys.
The Department is clearly failing to fulfil its mandate and it should have been placed under administration a long time ago.
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