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.
Since that disastrous case, then Chief Justice Arthur Chaskalson chose not to appoint an acting judge to the Constitutional Court as he was entitled to by section 175 of the Constitution. Now new Chief Justice Pius Langa has decided to appoint acting judges again and I am not sure this is a good thing.
In a closely contested case, an acting judge appointed by the Chief justice in consultation with the Minister of Justice, may hold the deciding vote. In the Chaskalson era those judges almost always voted with the Chief Justice. This means that the Chief Justice can temporarily “pack” the Court with his/her appointees and can help to secure a majority in cases where the permanent judges might normally have a majority.
Because South Africa’s Constitutional Court is not particularly divided on ideological grounds this has not yet been an issue but in years to come it may become decisive. In future, some judges may even decline to take sabbatical in fear of “ceding” his or her vote to the “opposition”, which would be rather unfortunate.
At the same time acting judges do get a chance to take part in deliberations of the Constitutional Court and can thus be “groomed” for a post on the highest court. Still, not an ideal situation.