Justice Bess Nkabinde. Picture: BRETT ELOFF/BUSINESS DAY
Justice Bess Nkabinde. Picture: BRETT ELOFF/BUSINESS DAY

In a rousing final address to the Constitutional Court, outgoing Judge Bess Nkabinde said the control of checks and balances exercised by the courts did not amount to judicial overreach.

She said the heat in the dispute was generated by a failure to comprehend the equal obligations of the three arms of the state, which is to promote constitutional values.

Defending the role of the judiciary as she shared her observations over the 12 years she served in SA’s highest court, she said that if the other arms of the state (executive and legislature) applied constitutional values, the judiciary would have a less significant role to play.

Nkabinde was addressing the Constitutional Court gallery on Thursday, when leaders of the legal fraternity and government paid tribute to her.

The judiciary has come under attack from various quarters in recent years for what critics say is its overstepping of its mandate by making critical rulings on policies formulated by the executive and the decisions of the legislature.

In May, the ANC described as overreach the order of the High Court in Pretoria that President Jacob Zuma declare his reasons for reshuffling the Cabinet.

National Council of Provinces chairwoman Thandi Modise urged Nkabinde to continue working to promote the interests of South African society, saying she was needed now more than ever. Modise said it was necessary for the courts to remind parliamentarians of their responsibilities to the public.

"I was one of those who were the first in the legislative sector to complain about judicial overreach into parliamentary issues.

"But I am also one of those who has been very open about matters where we rely on the court to direct and lead,"
said Modise.

Nkabinde, it would seem, was nowhere near retirement from public service, as she told attendees that the ceremony marked the end of a task but had renewed her commitment to the realisation of democracy.

She said the courts would always be in for a busy time if policies and their implementation were approached with no regard for constitutional values.

"If the other arms of the state were to embark on legislative and executive processes characterised by the applicable constitutional values, the judiciary will play a far significantly less central role than it is at present required to do, something that is happening at a more increasing rate these days."

She commented on inequalities witnessed in South African societies, noting paradoxes such as the existence of poor communities despite mineral riches.

Nkabinde was also concerned about the quality of media reporting, urging journalists to make use of the Constitutional Court’s services to ensure accurate reporting.


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