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 clear that the lawyers for Intelligence Minister Ronnie Kasrils and President Mbeki, made a series of monumental blunders in handling the suspension and dismissal of Masethla. It is not, however, a foregone conclusion that the Court would find against the President because the judges might see his power to fire the head of the Intelligence Services as such a political decision that the President should be given a wide margin of appreciation in such a matter.
What intrigues me though, is why Mr. Masethla (pictured) has chosen to go all the way to the
This suggests that Mr. Masethla is not taking this case all the way to the
First, it would, of course, be extremely embarrassing for the President if the
Such a finding would have political repercussions as it would enhance the view (no matter how unfairly held) that President Mbeki has overstepped the mark in his long-standing battle with Mr. Jacob Zuma and others in the succession battle. You see, Mbeki’s critics would say, we told you our President does not play fair.
Second, it is interesting to note that Mr. Masethla’s lawyers strongly argue that in any event, the matter should be sent back to the High Court in order that oral evidence could be presented by, amongst others, President Mbeki, to make a determination on the factual disputes in the case. President Mbeki will then have to take the stand to give evidence on sensitive and embarrassing events around the firing of Mr. Masethla. He will also have to justify why he had fired Mr. Masethla and will have to submit himself to cross-examination.
Could it be that Mr. Masethla has some explosive information that could be put to Mbeki under cross-examination that would strike at the heart of Mbeki’s credibility? Or is Mr. Masethla hoping that Mr. Mbeki’s performance under cross-examination would be so disastrous that it would finally put an end to the President’s ambition to stand for a third term as President of the ANC? Mbeki has never been good under questioning and generally politicians make bad witnesses, so anything is possible. I, for one, would be fascinated to see how President Mbeki copes with cross-examination.
One thing is certain, this case is turning into one of the politically most significant cases ever heard by the