Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
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This is what I call the productive power of the Constitution: Constitutional rights can have an effcet far beyond the mere invalidation of existing pieces of legislation. Because the law is also productive – by that I mean it helps to produce the reality we live in – constitutional challenges can have far-reaching social and political effects by changing the way people think about their world.
Of course, it can also produce powerful forces of resistance. After the discussions are over, there is always the likelihood of a backlash and more repression. But that backlash may again, in turn, lead to resistance by gay and lesbian groups now emboldened.
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