Steven Friedman’s column (Why judges’ over-reach is threat to democracy, Business Day, May 17), shows that he is still living in a fairy wonderland where every element of the new Constitution works as it should. As a result, the conclusion to which he comes is nonsense.

First of all, the Constitution itself is the supreme law of the land. Everyone, in government in particular, has to carry out their functions in accordance with the law as laid down by the Constitution. And provision is made for three fundamental institutions of this "democratic" Constitution: the Legislature (that is, Parliament, which makes the law and has oversight over the Executive); the Executive (the president and his Cabinet, who give effect to the decisions of Parliament); and the Judiciary (that is, the judges, who oversee and adjudicate on what the other two do).

They are separate, and each is supposed to function as a check on the other two.

But our constitution has two important defects. First, the way in which proportional representation is applied (which does not seem to be part of the Constitution) every MP is liable to lose their seat if they lose their membership of the party which put them there, and there have been open threats against ANC parliamentarians who do not toe the party line.

Secondly, the president has the discretion (not a prerogative) to appoint people he considers suitable to virtually every important post in the Cabinet and the government.

Friedman says citizens can vote against the government, but what is the use of waiting for the next election (which may be up to five years ahead) if Parliament fails to carry out its obligations, and if first, the Executive is led by a president that the vast majority of citizens believe to be a criminal, who is evading trial for the hundreds of corruption charges for which evidence was given at the Schabir Shaik trial, who has lied to Parliament, and has been found by the courts to have breached his constitutional obligations, and proceeds to make irrational appointments to the Cabinet?

And second, if Parliament has failed to fulfil its duty and call him to account?

A discretion has to be exercised with reason. It can never be free of this. But in this regard Friedman says: "To ask a court to declare a Cabinet reshuffle does not enable democratic politics — it rejects it." He follows this by saying: "Judges’ opinions on the choice [of Cabinet members] are no more valuable than anyone else’s." What nonsense.

Friedman’s statements call to mind the Roman Emperor Nero, who appointed his horse as a member of the Roman Senate. What should the courts do if a lunatic, or a criminal takes control of the state?

The courts make their rulings with evidence before them. Their opinions are the best opinions we can obtain. With the Legislature and the Executive as dysfunctional as they have shown themselves to be, it is not only right for the courts to play their part, it is their bounden duty, as required by the Constitution, and on behalf of the vast majority of the citizens of this country, to do so.

J PriceVia e-mail

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