Chief Justice Mogoeng Mogoeng says the lockdown and
state of national disaster implemented to curb the spread of the coronavirus
cannot function above the Constitution.
The head of the judiciary spoke to News24 this week
from under a tree on his farm, where he encouraged citizens to challenge
government decisions they deem to be infringing their rights.
“Even a constitutionalist function[ing] state
of emergency is subject to constitutional review. The courts have a final say
on the validity or otherwise on measures taken in a state of emergency. Our
constitutional rights are crucial and there can never be a situation [where]
any of us are not subject to constitutional review,” he said.
Mogoeng said this was why he did not agree with the
view that courts should have been shut down during the early phase of the
nationwide lockdown because people should have the option to challenge any
violation of their rights during this period.
“I encourage every citizen who believes his or
her rights have been infringed to, without hesitation, approach our courts, so
the courts – that are constitutionally ordained to look into the
constitutionality of acts or conduct of anyone – can review the matter and
decide whether or not citizens have been wronged or citizens have been acting
under an incorrect understanding of what the position is,” he said.
Earlier this week, President Cyril Ramaphosa said
in his weekly newsletter that every citizen has the right to challenge
government’s regulations in court.
JUST IN | 10 more Covid-19 deaths, taking the death toll to 407. Infections rise by 1 218, pushing the total number of cases to 21 343https://t.co/XlXaQlWYrf pic.twitter.com/HzX79qkhh3
— News24 (@News24) May 23, 2020
Mogoeng said while he does not align himself with
the president, he has long maintained that citizens must rely on the courts if
they believed government was infringing their rights.
Situation in SA ‘deeply concerning’
The chief justice said the rising cases of
coronavirus in the country and the economic impact were “deeply
concerning” to him.
“I am deeply worried,” Mogoeng said,
reflecting on the impact Covid-19 has had not only on the judiciary, but on the
entire country.
Mogoeng said Covid-19 and the related lockdown have
made a bad situation worse in the judiciary, with cases piling up.
Had South Africa’s courts been modernised much
earlier, he said, virtual court proceedings would not be a foreign concept that
was being resisted from some quarters.
“The first challenge, speaking for the
judiciary, is that we haven’t been able to finalise cases as expeditiously as
we would want to, as expeditiously as the public is entitled to have us do. The
effect of Covid-19 has been to make the situation worse for the judiciary and
for the broader public,” Mogoeng said.
While there was an effort to have matters heard
virtually, some lawyers have rebuffed the idea.
“You risk people saying, if they don’t
succeed, you risk people saying I did not succeed because I was compelled by
the court to present my cases under most unusual circumstances,” Mogoeng
said.
Pushing for modernisation of courts
He said for many years he has been pushing for a
court modernisation along the lines of the SA Revenue Service (SARS).
“But you need funding to be able to do that.
As you know, the public purse is highly challenged. There are so many key areas
competing for the limited resources,” Mogoeng said.
The chief justice said the lockdown has exacerbated
the problem of backlogs in courts, that was already a serious concern.
“And the challenge is we really aren’t able to
plan effectively around the lockdown because we don’t even know when it’s going
to end. We don’t know when phase two is going to kick in, Level 3. And how long
that is going to allow the courts to function particularly where it matters the
most, at the magistrate’s courts and the high court and the courts of
equivalent status,” he said.
Mogoeng said courts would have to prioritise cases
impacting the economy and gender-based violence.
‘Courts don’t function alone’
But he said the biggest concern in the criminal
justice system was that courts don’t function alone.
“You got a number of other key stakeholders
involved, like the police. Police must have their act in order in relation to criminal
matters, the prosecuting authority, witnesses, and the legal representatives,
some provided by Legal Aid SA, others funded by themselves.”
.@CyrilRamaphosa | South Africans ‘have a right to approach our courts’ to challenge lockdown regulationshttps://t.co/OAMIGu1Mhv pic.twitter.com/ftQ1Ef4OyO
— News24 (@News24) May 18, 2020
Away from the judiciary, Mogoeng’s concerns extend
further.
“I am worried about the impact of our
inability to function as normal on the economy.
“I am worried about our inability to function
normally and the impact thereof on crime.”
Worried about spike in crime
Mogoeng said he was worried that mass unemployment
may lead to a spike in crime.
“What will happen to the multitudes who will
not have a source of income? Isn’t it likely to contribute to the already more
concerning level of crime that we had to contend with so far as a
society?”
But there’s a silver lining too, he said.
“This lockdown has given us an opportunity to
reflect on how materialistic we are at times and how much need there is out
there. The need that must not be theorised about… the need that must not be
intellectualised about. But the need that cries out for practical steps [which]
should be taken by each citizen who has something to share,” he said.
The chief justice relayed how domestic workers
employed to assist with looking after his aged mother had proposed that parts
of their salaries be contributed towards the gardener who was at risk of losing
his income.
He said the lockdown showed practical examples of
ubuntu.
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