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.
Recently this has started to change with some of the Portfolio Committees of the National Assembly taking decisive steps to probe the executive and to expose maladministration and incompetence.
Members of the executive (the real Rottweilers?) have been biting back, with Deputy Minister and resident bully, Johnny De Lange, complaining recently about the bad legal counsel in Parliament.
No wonder then that Speaker Baleka Mbete is reported in today’s Business Day as complaining about attacks by the executive on members of Parliament for fulfilling their oversight role.
According to Business Day:
Mbete said she had had a meeting earlier this year where she was told that ministers were not happy with some of the questions MPs were asking them. She had told the executive to draw up a document on the matter. However, she said she had not yet received it.
This is of course all Jacob Zuma’s fault. With the battles raging inside the majority party and resident Thabo Mbeki’s power slipping away, some MP’s have stopped fearing for their political futures and have started thinking for themselves.
But once a successor is safely ensconced in the Presidency all this independence may come to an end. This is not – as the DA would say – because ANC MP’s are spineless and unprincipled but because the system does not really give them a choice.
The problem is that in a pure proportional representation system with strong party discipline and party deployment where party leaders have a strong say in who appears where on party election lists, it will be political suicide for an MP in the National Assembly to rough up a cabinet minister.
Tomorrow that same cabinet minister will decide whether you should be deployed to Khazakstan as South Africa’s new cultural attaché.
Two things should happen before MP’s acquire permanent back bone. First, there should be a change in the electoral system to allow a majority of MP’s to be directly elected in constituencies. Second, legislation should be adopted similar to that in Germany that regulates and ensures internal party democracy in the election of representatives.
Both such moves would fundamentally weaken the hold of the party leaders over the party. It is therefore probably not going to happen. The leaders of both the DA and the ANC enjoy the control they have and will not easily give it up.
The best bet for us mere mortals is for an election result down the line that produces a hung Parliament like the hung council in Cape Town. If, say, the ANC obtains 40% of the vote, the SACP, 10% and the DA 20%, it will make for a much more interesting and effective Parliament.
Blade, can you and your party make the jump into electoral politics?