Article by Marc Aupiais
The following article does not constitute a legal opinion, and does not constitute a grounds for further action. Our facts as to the current situation, though not the previous ones (e.g. Collins case, etc, which are not based on IOL's "Sunday independent" article): are based on an article which appeared in the Sunday Independent, on Sunday 14 June 2009.
The Collins case, and Parliamentary Supremacy
Collins V the Minister of the Interior, was an important case in South African legal history, it was when the Nationalist Party (Now incorporated into the ANC: African National Congress, which is the ruling party in South Africa), managed to get past the then Constitutional requirements of the Union Constitution, 1910, which was achieved via the Senate Act, against coloured voters which had been in the way of the Apartheid Government.
It is then, when coloured voters were finally thrown off the Common voters' roll.
ANC wants to amend Separation of Powers
With the Constitution of the Republic of South Africa, 1996, so-called "Constitutional Supremacy" definitively, replaced the "Parliamentary Supremacy" of the Apartheid era. With a new bill, fronting an adaption to the Constitution, and to the process of regulating judiciary, South Africa's Constitutional Supremacy, and Separation of powers, seems more than at risk! And under such a communistic government, as the ANC's cabinet, with such a history of seemingly endorsing corruption, and passing laws, which favoured its members, and those of certain ethnicity over other persons, this is concerning!
Previously known as the "Superior Courts Bill", the "Constitution Eighteenth Amendment Bill", has some sections the ANC's Justice Minister: Jeff Radebe, will not negotiate, according to IOL: these the ANC: insists, must occur:
"The non-negotiables, however, include:
The chief justice will become the head of the judicial authority;
The Constitutional Court will become the apex court, able to hear all cases, not only constitutional matters;
The Constitutional Court will no longer be able to prevent an act of Parliament from coming into operation."
(IOL (South African; Secular; independent) 14 / 06 (June) / 2009)
Context of Quote:
The Chief Justice of The Constitutional Court is directly appointed by the President. It is expected, that President Zuma, desires a staunch ally in the post. The Constitutional Court, does not have the capability to hear many more cases, and some justices (judges) of it, according to legally related opinions I have read in my textbooks, are allegedly specialists in what the author considered "Human Rights" or maybe just Constitutional law, and possibly have no real ability in statutory, or common law. Every Act can currently be judged against the Constitution, as Constitutionally valid or invalid, such has yet to be abused.
The ANC is just- about: three seats short of the Two Thirds Majority in Parliament needed to unilaterally change the Constitution: however, the PAC, the ID, and the ACDP have all previously acted as ANC allies. It is very possible, that despite the Best Efforts of the Major Opposition, that the ANC, will finally be able to pass a bill, maybe equivalent to the Senate Act, by which the Nationalist Party Instituted Apartheid's Parliamentary Supremacy, and cleared the path for its many alleged abuses.
Current Government's Confrontational history with Courts, and Prosecutors:
The current President of South Africa, who was let off on hundreds of corruption charges, after his organization got rid of the previous National Director of Public Prosecutions, and the federal unit, which was investigating him and others for alleged corruption, has likened the judges to people who think they are "God", and has often been a cause for concern, as regards fears that he will entirely erode Judicial Independence in South Africa. He has also claimed that White South Africans, who are not of Afrikaans ethnicity, are not really South Africans. He seemingly claimed that the ANC, had never altered the 1996 Constitution, and wouldn't do such during his term. The first claim was an outright lie, or erroneous statement, as anyone who has even glossed the Constitution can tell, or it was entirely misquoted: which is highly unlikely, the second clearly seems to be just as much of a false claim, at least as far as the ANC's seeming intentions seem to go.
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