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.
A reader argues that my position on affirmative action is fundamentally flawed, because my assumption is that there can be no fair and objective criteria of merit that can apply to both “white” and “black”. So one just has to choose which group one should discriminate in favour of.
I do indeed believe that there can be no absolute objective criteria according to which we can decide who are best qualified for a position. For some jobs one can get closer to that (flying a Boeing, say) than in others, but an objective standard does not exist. Pretending that there are such objective criteria merely helps to hide the prejudices of the powerful behind a façade of neutrality.
If we are striving for fairness, it requires, first, that we take into account the larger political, economic and historical context in which we make judgments about what is fair or not. This will inevitably require us to take note of past discrimination and racial injustice and to accept that such injustices must be addressed in some way or another. Second, it requires us to question anew the prevailing “norms and standards” and to ask anew what characteristics will best suit a specific job and who will contribute most to the well-being of an institution. This can only be done well, if we accept that different voices do not necessarily lead to a lowering of standards.
A little less certainty about things and a bit more critical reflection might help us to think about all the invisible criteria which have always helped to advantage the interests of the in-groups and exclude those who did not fit in.BACK TO TOP