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.
Living in Cape Town can be confusing – one never knows whether to laugh or to be scared by the shennanigens of its politicians. And none of its politicians have made more waves over the past year than one Badih Chabaan, leader of the National People’s Party (NPP) and formerly a member of the African Muslim Party. He was in the news again this week for allegedly getting two witchdoctors from Senegal (in West Africa, not the Free State) to cast spells over various city politicians including Mayor Helen Zille.
These allegations were made by one Juan Duval Uys (pictured), erstwhile leader of the Gay and Lesbian Alliance, who had just resigned as spin doctor and spokesperson from the NPP. I must confess I was really torn about whether to believe Uys (who has a long history of fabricating the most outlandish stories to get his name in the press) and Chabaan (who seems to be a virtual stranger to the truth). I was leaning towards disbelieving Uys’s story that the witchdoctors had slaughtered a cow for Zille, a sheep for Simon Grindrod and a goat for the Speaker.
Then I read this morning that Mr Uys had actually produced proof that a hotel room was booked in December for two adults from Senegal and Chabaan admitted that he had invited the gentelman to pray for the Senegalese traders on Greenmarket Square. For once in his life Mr Uys seems to be telling the truth and it is ironic that it should be when his story is one of the most absurd and outlandish he had ever come up with.
This is all highly entertaining (or scary – depending on your view) for us Capetonians, but there is a serious sting in the tail here. This morning the newspapers report that Mfundo Majozi, the then acting head of National Intelligence Agency (NIA) in the Western Cape, had written a letter to the city (then still under the control of the ANC) that read: “Chaaban … is involved in a range of organised crime activities including dealing in false passports, the drug trade, money laundering, prostitution, human trafficking and murder.”
Now, I wonder how can it be possible for any politician to survive such allegations and even head a political party without being hounded out of office by his colleagues. More importantly, I wonder whether the police have investigated these claims at all and if not why not. Moreover, if they had investigated it or would investigate it, would they actually have the skills and capacity to unravel the very strange world of Mr Chabaan to determine whether he is guilty of any of these crimes or not.
The answer is pretty obvious. If Mr Chabaan is involved in any of these activities, the police would be the last to know and they would also almost certainly be incapable of building a case against him, seeing that in the event of any of this being true, Mr Chabaan would surely be making use of underlings to do his dirty work for him. (This is of course assuming that they had not been bribed by Mr Chabaan to look the other way.) And that is exactly why the Scorpions were established in 2001: to get to the bottom of such murky cases beyond the ordinary investigative powers of the police who are understaffed and overworked and not nearly as well trained as the Scorpions.
One imagines that if Mr Chabaan has anything to hide, he is breathing a sigh of relief that the Scorpions will be disbanded soon and that the ANC members in the Cape Town City Council who cheered him on at a council meeting late last year because they thought he might help bring the DA government to a fall, will probably cheer on the demise of the Scorpions as well.
It just goes to show that the disbanding of the Scorpions just makes no sense. Which brings me to an argument by Prof George Devenish in this morning’s Legalbriefs that the disbanding of the Scorpions should be challenged in Court because it appears to be the:
result of mala fides (bad faith) or at least for no legally acceptable rational purpose that the dissolution is proposed. Its aim is essentially to protect certain politicians, who now find themselves in the ascendancy in the ANC, from penetrating investigations.
As I understand it, this argument would be based on the Rule of Law, which requires legislatures not to act in bad faith or a for a corrupt purpose and requires at least that legislation should be passed for a rational purpose. So far this is the best constitutional argument I have heard for challenging the constitutionality of the disbanding of the Scorpions. Pity that I do not think it will fly in the Constitutional Court.
This is not because the Court has not used the Rule of Law principle quite imaginatively in some cases to deal with tricky issues, but because, once again, this is such a politicised issue that a court would feel very reluctant to get involved in it. And between them, the ANC could surely come up with at least one vaguely rational reason for disbanding this unit. This is not a difficult threshold to meet – after all, even Juan Uys and Badih Chabaan sometimes act rationally.
But who knows, if the ANC pushes this legislation to disband the Scorpions through parliament in a hasty and tardy manner, it might seem so irrational that even the usually cautious and circumspect Constitutional Court is forced to act. Only time will tell. Meanwhile we here in Cape Town are still stuck with the Badih and Uys show.BACK TO TOP