An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
This will be my last guest blog. Next week, Pierre will be back to entertain and enlighten in his characteristic fashion. I thought that I should share some of my impressions over the last two weeks as a way of saying “good-bye and good luck” to the many readers of this blog. I want to start with the quote of the week which comes to us from the thought of Hannah Arendt: “Clichés, stock phrases, adherence to conventional, standardized codes of expression and conduct have the socially recognized function of protecting us against reality, that is, against the claim on our thinking attention that all events and facts make by virtue of their existence.” South Africa is full of stock phrases, like: “national democratic revolution”, “second transition” and most recently, “the decisions we could not take in 1994”. The meaning of these stock phrases continue to elude most South Africans – we know only that these phrases amount to a series of negations: it is not nationalization, it is not an amendment to the Constitution, it is not a return to the Reconstruction and Development Program, for that was a decision that was taken in 1994. Admittedly under the influence of Arendt, I think that these phrases serve to protect us against reality and thus against the “thinking attention” that reality demands.
Arendt insisted that the ruse of the banal provides no defense, that as human beings we are responsible for the world that we inhabit, that we are given to think and that this ability is what distinguishes us from the animal – our action informed by thinking. For Arendt, two things about the world are apparent but occluded. The first is that the world is only ever through us and with us. By this I mean that the very idea of “world” depends on what Arendt (and Kant before her) referred to as a sensus communis – a community of sense through which we recognize and share a reality with each other. Secondly, Arendt took Hegel’s idea of mutual recognition seriously, the idea that I exist as human only insofar as my existence is recognized by the Other with whom I share this world. Without recognition, there can be no certainty of existence, without the “I see you” and the “I hear you” and the “I feel you” every man is indeed an island, viz Defoe’s Robinson Crusoe. It is this idea that forms the basis of so-called “poststructural” interventions in sociality. Prominent French philosopher, Jean-Luc Nancy’s entire oeuvre is dedicated to the thinking of what he calls the being singular plural, the fact of our existence as always already with others and through others, the sensus communis as a community of sense or the fact of existence as always already only communal.
The problem in postcolonial reality is precisely the problem of mutual recognition, of recognition and of worth. While section 10 of the Constitution recognizes that “everyone” has inherent human dignity and the right to have it respected and protected, we often fail in daily reality to remain true to this ideality. We treat the Other as a means to an end without recognizing them as an end in themselves. We hurt, we insult and we wound in the name of an outrage fuelled by the fact that we perceive that we are not heard and valued ourselves. This, then, amounts to a terrible self-destructive circular struggle.
Is there a way out of this seemingly eternal negation? Here I want to draw on the ideas of Derrida on absolute hospitality. Would it be possible to offer recognition before receiving it – even to the stranger, to the one that is most foreign to us? What would it mean to be generous, to give without receiving (back)? Would this not be the condition of each and every recognition? Or as the German poet, Rainer Maria Rilke, once put it, “when, in which one of our lives, shall we at last be open and receiving?”BACK TO TOP