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.
In a country like South Africa where one political party has so long dominated electoral politics (first it was the National Party for over forty years and now the ANC for fifteen) it is perhaps understandable that ordinary people will begin to conflate the party and the state.
Unfortunately it is also dangerous and undermines the establishment of a democratic culture. South Africans all think they believe in democracy but there is not much evidence to support such a view. We have not had a long history of competitive elections – even when South Africa was still an oppressive apartheid state and only white people could vote for their whites only parties.
At least politicians and others in the public eye should pretend to understand and respect the difference between the governing party and the state (something several commentators on this Blog have embarrassingly failed to do over the years).
Sadly, this does not always happen. One of the most troubling and shocking examples of this conflation of state and party comes to us via SABC Board member, Bheki Khumalo. Reporting on the ongoing disaster that is the SABC, the Sunday Independent reported as follows:
Referring to Mkonza’s comments that she would step down only if the shareholder [of the SABC] decided that she was not fit to serve, Khumalo said the shareholder was the ANC, and that this was not a board of Woolworths or Chicken Licken and that the board should get urgent legal advice on the matter.
Oops, Mr Khumalo, you are so embarrassingly wrong that if I was you I would lock myself in a dark room for a week to hide away from the shame of making such an utter fool of myself. One wonders whether he learnt nothing during his stint as spokesperson for former President Thabo Mbeki, but one fears that he might have learnt too well.
Of course, the shareholder of the SABC is not the ANC. The shareholder is the government, who happens, just for the moment, to be run by the ANC. Come the next election (or the one after that, or the one after that) us voters will throw out the ANC and a new party will govern South Africa. In a democracy voters always get tired of a governing party who will inevitably become more corrupt and inept as time goes by. It is a plain fact as obvious as the earth is round.
When the ANC is eventually thrown out by the voters, the shareholder of the SABC will remain the government – regardless of who will then form the government.
The statement by Khumalo is a howling Freudian slip and says much about how many ANC “deployees” see their jobs in government departments, on parastatal boards and on boards of a state broadcaster like the SABC.
Like that old democrat King Louis XIV of France, who said L’État c’est Moi (I am the State), people like Mr Khumalo (pity he never obtained a Phd because I would have loved to call him Doctor Khumalo) think that they are the state because they belong to a party who just happens to have gained the most votes in the last election.
The reason why this is so dangerous is that when this idea takes root that the state and the party is really the same thing, it becomes more and more difficult for some members of the party who are temporarily in charge to remember that they are only there because us voters put them there.
In such an atmosphere one starts to believe that only you and your party can run the country and when you are then thrown out by the voters you might be tempted to act like the authorities in that wonderful Poem by Bertold Brecht called The Solution:
After the uprising of the 17th June
The Secretary of the Writers Union
Had leaflets distributed in the Stalinallee
Stating that the people
Had forfeited the confidence of the government
And could win it back only
By redoubled efforts. Would it not be easier
In that case for the government
To dissolve the people
And elect another?
That is why Khumalo’s statement is so dangerous. That is also why Khumalo should of course immediately be asked to resign for making a statement that does not only demonstrate a breathtaking ignorance of the legal framework under which the SABC Board operates, but also a dangerous anti-democratic attitude.
The fact that this is not going to happen, says much about the state of democarcy in South Africa.BACK TO TOP