Debate: Is there excessive 'lawfare' in South Africa?

A High Court judgment has ordered President Jacob Zuma to provide reasons for his latest Cabinet reshuffle, but questions have been raised over whether the courts are overused in such political matters. Is it correct for the judiciary to interfere in political cases?

In this latest case involving the Democratic Alliance (DA), Professor Richard Calland argues the court should stay out of the matter. Problems may arise when a court starts to decide who is in or out of government Calland believes.

READ: Law experts divided on whether courts should interfere in Gordhan axing

Eusebius McKaiser spoke to public law lecturer Cathy Powell and EWN reporter Barry Bateman about whether there is an overuse of the legal system by politicians to fight executive decisions by government.

"Yes we shouldn't be using the courts so much, yes it's a bad sign that we are but there are two reasons people go the courts", says Powell.

One reason may be because those that feel they lost the elections are trying to find another way of getting what they want, she adds.

But the other reason is because the other two branches of government - parliament and the legislature in the executive are not doing their job. Yes, we shouldn't be doing it but I am afraid it's being done because it's the only branch of government that is functioning.

Cathy Powell, Senior Lecturer in Public Law at UCT

Bateman who was at Thursday's court hearing and has covered numerous other proceedings, says questions need to be raised on whether government is making too many unconstitutional decisions.

Time and again the decisions made by our government at various levels are ending up in these court rooms, and its a subject of was the decision made in terms of the law?.... And time and time again we are finding that our courts are ruling in favor of the applicants.

Barry Bateman, EWN reporter

Where has the court overreached it's jurisdiction?

Powell says the Sassa judgment was one example.

The court made a decision as to what contract the department was going to have and with whom.... all decisions which the court should not be making. It even set up all sorts of monitoring mechanisms, now that is overreach in the sense that a court should never have to do that.

Cathy Powell, Senior Lecturer in Public Law at UCT

....It's been forced to work in areas of government where it does not have the expertise, or the resources or the capacity top do the job, so yes there is overreach. How do we stop it?... By putting pressure on Parliament to oversee the executive properly.

Cathy Powell, Senior Lecturer in Public Law at UCT

Click below to listen to the full debate...

In an earlier conversation with McKaiser, Advocate Dali Mpofu explained that all executive actions are subject to the Constitution.

If you are a president, or a minister or whatever, all you need to do is make rational decisions and nobody will bother you. It is very simple.

Adv Dali Mpofu

For as many times somebody breaks the rationality law , for that many times the court will stop them.

Adv Dali Mpofu

In a constitutional democracy where the values of the rule of law, accountability and so on are prevalent, as it is out in section one....you can't be accountable and at the same time be able to do whatever you like. That is a contradiction.

Adv Dali Mpofu

Listen to the full audio below.....

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