As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The Rolling Stones might as well have had the voters in a democracy (or in any other system of government) in mind when they sang “you can’t always get what you want”. No citizen has a right to always get what he or she wants from the democratically elected government – whether he or she voted for the governing party or not.
You can hope for the best, but you cannot expect to agree with every single decision a democratically elected government takes. Sometimes a democratically elected government will adopt policies and pass laws that some (or even a majority of) voters will not like.
When this happens, unhappy voters who respect the democratic process cannot normally break the law to try and subvert otherwise validly passed policies or laws. When they do this, they subvert the democratic process by using non-democratic and unlawful methods to achieve an outcome that they could not achieve through the democratic process.
Such behaviour undermines democracy by subverting democratic processes and by undermining the democratically elected government and its ability to govern.
As long as the policies or laws do not infringe on the rights of anybody and do not undermine the democratic freedoms that secure meaningful on-going participation of all citizens in the democratic process, those who are committed to democracy have a moral and legal duty to obey the policies and laws with which they do not agree.
The situation may be different when the democratically elected government undermines democracy by moving to limit your democratic freedoms. When the government changes laws or policies to draw a veil of secrecy over its activities in order to avoid accountability or when it changes the rules of democratic engagement to give the incumbent party an unfair advantage in elections, citizens (as custodians of democracy) may have to resort to more drastic action to protect democracy itself. In such cases, ignoring the law is aimed at protecting democracy itself and would be morally justified.
But in the absence of such anti-democratic moves by a governing party the options for voters to influence the laws and policies of a government are limited to legal steps that respect the legitimacy of the democratically elected government and the democratic process itself.
In a democracy you vote for a political party who may or may not get enough votes to form the government. If the party of your choice fails to gain a majority of votes in an election, you have to wait until the next election in the hope that the party of your choice will be able to convince a majority of voters to vote for it.
Even if the party of your choice won the election, it may well adopt policies or pass laws with which you disagree. You can hold the governing party accountable by threatening to withdraw (or by actually withdrawing) your support for that party in the next election. After all, when you vote for a party in an election, you are merely lending your vote to that party on the condition that it acts in a manner that guarantees it your support in the future. When it acts in ways that breaks the relationship of trust with the party, you must change your vote and lend it to another party.
This does not mean that democracy requires citizens to remain passive bystanders in-between elections. All citizens have a right to participate in the democratic process by making submissions on proposed laws and policies, by organising opposition to those aspects of laws or policies they disagree with, by expressing their displeasure of laws or policies in the media, by challenging the laws or policies in court and by taking part in peaceful protests against specific laws and policies of the government.
It is clear that many middle class people living in Gauteng are very upset about the introduction of e-tolling by the government. They argue that the system of financing the upgrading of highways is inefficient and unwise and that there may well have been better and more cost-effective ways to finance the upgrading of the roads. These arguments appear to be valid, but the government of the day has decided to ignore all the objections and to go ahead with the implementation of e-tolling.
Several courts have declined to interfere with the decision to impose e-tolling on Gauteng freeways, suggesting that the laws and policies are constitutionally valid. While perhaps unwise, the imposition of e-tolls does not infringe on the human rights of anyone and neither does it subvert the democratic process. It’s a bummer, but e-tolling has been validly introduced and citizens who respect democracy must therefore obey its prescripts.
A democrat faced with such a situation is not powerless. First, he or she can decide that the government who introduced e-tolling must be punished at the next election and can lend their vote to another political party. If enough voters show their unhappiness in this manner, a new political party will gain the majority of votes and will become the governing party who will be able to scrap the introduction of e-tolls.
Secondly, he or she can take part in massive peaceful demonstrations to demonstrate to the government of the day that the policy is unpopular with citizens. I have no doubt that if a million people gathered outside the Union Buildings and remained there for a week or two to protest against the imposition of e-tolls, the government would be forced to rethink the policy.
But this has not happened. Most South Africans who oppose the introduction of e-tolls appear to be too lazy or too wedded to their own comforts to take part in a prolonged mass protest against e-tolls. Citizens want the government to listen to their protests but they could not be bothered to protest in a manner that would force the governing party to take the protests seriously.
Instead, the vast majority of those who oppose e-tolls seem to be choosing the easy, but essentially anti-democratic, way of protesting against the validly imposed and constitutionally sound policy: they are going to refuse to buy e-tags and then to pay for the tolls when they are required to do so.
But there is no moral or legal basis for opponents of e-tolls to disobey the law. They are, in fact, promoting lawlessness, the very lawlessness that members of the chattering classes complain about when strikers break the law or mini-bus taxi drivers refuse to obey traffic rules. They demand a right to be lawless in order to oppose e-tolls, while criticising others who are lawless, displaying a hypocrisy that is all too familiar.
Democracy is not something you can switch on and off as it pleases you, going along with democratic rules when you get your way and subverting the democratic process when you do not. Gauteng residence must heed the advice of Mick Jagger and accept that they cannot always get what they want – especially if they are not prepared to make the sacrifices associated with prolonged mass protest.BACK TO TOP