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Questioning the Efficacy of the SA Constitution

Author: Khanyisile Brukwe

Does South Africa have the world’s best constitution? Judge Bernard Makgabo Ngoepe reflected on this question at the 4th Annual Law Dean’s Distinguished Lecture hosted by UWC’s Faculty of Law.

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(Published - 12 September 2018)

Does South Africa have the world’s best constitution? None other than Judge Bernard Makgabo Ngoepe reflected on this question, as the keynote speaker of the 4th Annual Law Dean’s Distinguished Lecture hosted by the Faculty of Law of the University of the Western Cape (UWC).

UWC Rector and Vice-Chancellor, Professor Tyrone Pretorius, praised the Faculty during his welcoming address and the positive impact it has made on society, the country and the world.

In a long and distinguished career in law, Judge Ngoepe became the Judge President of the Gauteng High Court in 1999 and remained in this position until his retirement in 2012. He continues to serve on many other bodies and is South Africa’s tax ombud.

Professor Pretorius jokingly remarked: “[Regarding] your profile, which was just read out, retirement means something different to you compared to myself and other people.”

Judge Ngoepe began the lecture, entitled “The best constitution in the world”? - A few reflections!, by posing the question: “Is ours indeed a perfect Constitution?”

“Political debates aside, circumstances in the country are such that we are entitled, if not obliged, to raise the question whether indeed, as people say, ours is the best Constitution in the world, or even one of the best,” said Judge Ngoepe.

“This is because a Constitution is not an end in itself; it is a means towards a particular end in the life of a nation. That end, broadly speaking, is peace, security and prosperity in the country; the bottom line objective being the betterment of the quality of the lives of citizens.”

He took the audience to the scenes of various crimes, including taxi violence, gangsterism, xenophobia and violent protests, and said people often blamed lawlessness on the Constitution.

“For example, rightly or wrongly, they believe that this Constitution is criminal friendly. If there is anything you can do to dispel that notion, do it, because sooner or later, the people will take the law into their own hands. In fact, that has already happened, and many times, as recently as a few weeks ago on the East Rand in Gauteng, when two young boys, alleged to be members of a terrorising gang, were set alight.”

He noted that however good or bad a constitution is, it is of great importance by whom and how it is interpreted. It is therefore important that only competent people are appointed as magistrates and judges. He further called on citizens not to abdicate their duty of ensuring that the Constitution is properly understood, interpreted and applied by those “whom we have given the privilege of being the final arbiters” - the judiciary. The judiciary should thus be held accountable. Academics have an important role in this respect, yet in doing so they need to be objective and intellectually honest.

“I have often had the impression that there exists a perception that certain specific judges, for example in the Constitutional Court and the Supreme Court of Appeal, would always be right. If they are in the minority judgment, that judgment is regarded to be the correct one, and the majority judgment automatically wrong.If the favourite judges are in the majority, that judgment would automatically be the correct one and the minority judgment automatically wrong,” said Judge Ngoepe.

“I once warned, as I do so now, against creating a judicial aristocracy within our Judiciary. Nothing would stifle the development of our jurisprudence more than that. Nobody, but nobody, has the wisdom of King Solomon. Nobody has the monopoly of wisdom.”

The lecture concluded with the Judge emphasising that he wasn’t passing judgement on the Constitution because he believed that the debate about whether or not it is a good one or one of the best in the world must be allowed to continue.

“It is a necessary one and one which will, hopefully, get us to where we aspire to be as a nation,” said Judge Ngoepe.

The lecture was sponsored by Cliffe Dekker Hofmeyr, with Mr Roy Barends, director of the firm, introducing the keynote speaker. Newly-appointed Dean of the Faculty of Law, Professor Jacques de Ville, delivered a vote of thanks.


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