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.
It is my view that the challenge now is to begin to understand that minimum sentencing legislation is not the panacea for our crime problem. Rather, it is the certainty of punishment that is far more of a deterrent. Also, that sustained change will require substantial investment in the development of sound social policy on issues such as education, health and poverty alleviation.
I cannot agree more. But punishment is not only about deterrence. Punishment in criminal cases should also reflect, to some degree, the seriousness with which a society views different crimes. Punishment therefore has a strong symbolic function. When the criminal justice system fails to adequately punish even those few perpetrators convicted of rape and other violent crimes against women, it sends a signal that the system does not value women equally with men.
We will not stop rape by forcing judges to impose minimum sentences for rapists. But such laws will make judicial officers think again about their views on rape and will send a signal that as a society we abhor violence against women. Such a signal will be far more potent than the pious statements of politicians during the sixteen days of activism because it says we are prepared to put the power and the money of the state behind this effort to stop rape.