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 turns out the Lawyers in Durban who are in the process of launching an urgent application in the Durban High Court to stop the trans-shipment of six containers of arms from the Durban Harbour to Zimbabwe might very well have a strong case.
It turns out the South African parliament passed the National Conventional Arms Control Act 41 of 2002, a wonderful piece of legislation aimed at controlling the manufacture, marketing, exportation and conveyance of conventional arms in South Africa.
According to section 13 of the Act any person who wants to manufacture, market, import or convey conventional arms in South Africa needs a permit that must be issued by the National Conventional Arms Control Committee (NCACC). Those arms in the Durban harbour could therefore only be transported to Zimbabwe if the conveyancing permit was validly issued by the NCACC.
I assume the court challenge in Durban will centre around the validity of the decision by this Committee to issue such a permit and will ask the court to review and set aside the decision of the Committee to issue the permit. They will probably argue that the Committee failed to adhere to the provisions of the Act when it issued the permit and therefore acted ultra vires.
Section 15 of the Act states that when it issues such a permit the Committee must, amongst other things:
avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms;
avoid transfers of conventional arms that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability;
avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms;
avoid the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.
The Committee will have great difficulty showing that the Zimbawean government does not systematically violate or suppress human rights and that the arms would not be used for the internal oppression of those who oppose the Zanu-PF regime. Any person who watches television from time to time (but probably not the President of South Africa) will be able to tell you that Mr Mugabe’s regime is an oppressive one and that arms destined for the Zimbabwean Defence Force are more likely than not to be used to assist in the internal oppression of the people of Zimbawe.
There is therefore a strong possibility that a court could find that the Committee who issued the permit did so in contravention of its obligations as set out in the legislation. One might well wonder why this Committee, chaired by Defence Secretary, January Masilele, was so eager to issue the conveyancing permit. That is, until one studies the Act and notices that this Committee is appointed by President Thabo (“there is no crisis in Zimbabwe”) Mbeki and is made up of Ministers, Deputy Ministers and other persons appointed by the President.
People even less cynical than me would begin to wonder whether such a Committee would Act in such a sensitive matter without at least informally sounding out the President. But maybe it is time for the two centers of power to do some good and for the ANC to send out a strong signal that the shipment of arms to Robert Mugabe’s government is untenable. Who knows, the Committee might suddenly have a re-think after careful consideration of their political futures.
A statement from the ANC would also give a judge some political cover to make a ruling against the government on such a politically sensitive issue. Now, if those people in Luthuli House could just stop obsessing about the Scorpions for a day or two, they might do us all some good in this matter.BACK TO TOP