POLITICS

Gordhan: 'Courts Must Intervene When The State Fails'

The separation of powers is an entrenched principle, but sometimes one arm of state must remind the others of their responsibilities.

26/03/2017 18:34 SAST | Updated 27/03/2017 15:39 SAST
()

Recent judicial interventions in areas of executive authority are important developments which will provide legal precedent for years to come, Minister of Finance Pravin Gordhan says.

In an interview he told Huffington Post South Africa judgments by the Constitutional Court in the social grants matter and by the High Court involving Hawks commander Major General Berning Ntlemeza helped make judicial history. "When we look back in five or ten years from now we'll see we navigated an important period in our history, a period which taught us how limits are set . . . there's no prescribed book which says 'here's the line you don't cross'."

The Constitutional Court in the e-tolls case for example found the High Court made fiscal decisions and said: 'Hold it, it's the prerogative of the executive, that's not a terrain we get into.'Pravin Gordhan

The Constitutional Court was very clear in the social grants judgment that it is wary of encroaching on executive terrain, but was forced to do so by the dangers which government incompetence posed to the wellbeing of grants beneficiaries. The High Court declared Ntlemeza's appointment to head up the Hawks by Minister of Police Nathi Nhleko to be invalid because he neglected to take relevant information into consideration.

Gordhan -- who has been very critical of the manner in which the Department of Social Development handled the grants fiasco -- says the court's interference was justified. He says the principle of three arms of state and the separation of powers is entrenched and respected, but that there might sometimes be "grey areas" which will have to be navigated.

"The Constitutional Court in the e-tolls case for example found the High Court made fiscal decisions and said: 'Hold it, it's the prerogative of the executive, that's not a terrain we get into.' That's an example of where the court went too far," Gordhan said.

In other instances, where you have other arms of the state failing, the one working arm might have to remind the other two there are obligations that they have to fulfil. And that's the role the Constitutional Court plays.Gordhan

"In other instances, where you have the other arms of state failing, the one working arm might have to remind the other two there are obligations that they have to fulfil. And that's the role the Constitutional Court plays. As long as we are aware of this dynamic . . . the separation of powers, the checks and balances to make the country work . . . we'll enrich our democracy."

Gordhan said events around the social grants "was a good thing" and that government took a number of lessons from it: "It emphasised that institutions that distribute social grants need to be more professional and publicly accountable and that they must work within the parameters provided by law when prosecuting their mandate."

He again took a swipe at Serge Belamant, executive chairperson of Net1, the holding company that administers social grants, and said business has a responsibility to not take advantage and profiteer off "malfunctioning government departments".

Gordhan praised shareholder activism, saying it was "a good thing" that questions were asked about the company's leadership, it' values and public accountability.