Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
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.BACK TO TOP