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.
Chief Justice Pius Langa’s has an almost sphinx-like public persona. He is obviously by nature a shy man, but as Chief Justice he has perfected the art of talking without saying anything remotely controversial or, alas, interesting.
This is not criticism of Justice Langa – more a form of praise. One probably does not want a Chief Justice shooting from the hip like a Justice Dennis Davis or (god forbid) John Hlope.
The fact that the Chief Justice found it necessary to make a statement about the SCA’s mistake in the Schabir Shaik case, is therefore something we should take notice of. It suggests that while the spat has no legal consequences, it is seen to have done grave damage to the credibility of the judiciary.
The Chief Justice therefore obviously felt that he had to intervene. He does so by stating the obvious:
The legal system is not premised on the absence of mistakes. It is precisely because of this consciousness of human fallibility that the system provides checks and balances by way of appeal and review by higher courts to correct any errors that may have had a material outcome on a case.
But we all know this of course. The problem in this case is that politicians such as Zwelenzima Vavi and Fikile Mbalula have exploited this blaps for political gain. BY making a mountain out of a molehill they have managed to convinced many people out there that our judges are not to be trusted.
It is ironic that the very people bemoaning the alleged misuse of state institutions for political gain, see no problem in undermining the judiciary for short term political gain. In direct criticisms of the Vavi’s of the world the Chief Justice states:
It goes without saying that there is a heavier responsibility on people in positions of responsibility to desist from indulging in a free-for-all of public recrimination and vilification of the judiciary. Conduct of that sort not only undermines the Constitution, but it can have the effect of weakening both the judiciary and our democracy.
I don’t think judges should be above criticism – although some judges do sometimes behave as if they think they should be. It is unacceptable though to attack the judiciary in a way that goes beyond criticism of the merits of a case.
The way Vavi misrepresented the mistake of the SCA as an earth shattering display of bias on the part of the judges is therefore unforgivable. As the Chief Justice has clearly understood, such attacks are really attacks on our democracy itself.BACK TO TOP