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.
Prof Sandra Liebenberg has a good article in Business Day today in which she also criticises the attack by Johannesburg mayor Amos Masondo on the judgment of Judge Moroa Tsoka in the Phiri water case. Money quote:
There may of course be legitimate debate about whether the judge got it right, and this is an important part of public discourse and debate in a democratic society. As is the case with legislation and policy, court judgments should also be exposed to robust critique and debate. This is fundamental to a vibrant democracy.
However, it is an entirely different matter to call into question, as Masondo has done, the duty of judges to interpret constitutional rights and to grant effective remedies in the cases that come before them. The suggestion that, in performing this role, judges are acting as though they are “above the law” or that they should form a political party if they wish to govern the land undermines the fundamental principle of the rule of law. It also contributes nothing to democratic debate about the meaning and implications of constitutional rights for the governance of our country.
I also totally agree with Prof Liebenberg – following Justice Albie Sachs? – that we should view judgments of the Constitutional Court as part of our democratic conversation. Judges are independent but the courts are one of the three branches of government and their decisions must be viewed in that light.
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Instead of viewing the courts’ role in enforcing these rights as an unwelcome intrusion, Johannesburg should understand that this is part of the “constitutional conversation” between courts, the government and civil society on how best to realise human rights. Rather than detracting from democratic politics, the judicial enforcement of human rights enriches constitutional democracy. The city should view judicial intervention in cases such as Mazibuko as an opportunity for research and reflection on whether its policies are consonant with the Bill of Rights. This will enable a more constructive dialogue on whether we as South Africans are meeting our constitutional commitments to the poor.