Quote of the week

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.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
1 March 2007

Haikona Motata…

There was a mixed reaction to my comments here and here about Justice Motata’s appearance on Tuesday in chambers rather than in open court. While some emails lauded me for the harsh tone of my remarks, others argued that the prosecutor, Nazeer Cassim SC (degrees not obtained in Bulgaria, I presume), did not do anything that was illegal.

I do not want – and may not be competent – to argue about the question whether the action was legally acceptable or not. My point was that those involved should have acted according to the tenets of the Rule of Law, which requires an acceptance that we are all equal before the law and should not be treated differently because we happen to be rich and (at least in their own eyes) important.

Judge Motata evaded his constitutional and ethical responsibility – as a servant of the Constitution – to face the music. He most probably expected and demanded special treatment and was afforded such treatment, sending a signal that all are not equal before the law.

The response of critics also seems to be part of an emerging trend in public discourse according to which we are told that we are not allowed to judge public figures unless we can prove that they have broken the law and had committed a crime.

Thus Mr Jacob Zuma is “innocent until proven guilty” and we can therefore not ask awkward questions about why he took more than 1 million Rand from a convicted fraudster and then did favours for him in return while lying about it in Parliament.

Thus Commissioner Jackie Selebi admits that he is good friends “finish en klaar” with a person arrested for murder and we are told we must first prove he is corrupt before we start blaming him for nothing – how very dare we! Never mind that Mr Selebi has never denied the allegations that the accused had bought him expensive clothes and made some other payments to him.

There is a long list of such incidents where, in an Orwelian twist, those caught with their pants down are cast as the victims and those who ask the difficult questions about their nakedness are cast as the villians.

It is time that we eradicate the term “innocent until proven guilty” from the political discourse and reserve it exclusively for sparce use in the courtroom in criminal trails. It is used out of context to protect scoundrels and crooks and to demonise those who do not want to stop asking the questions that must be asked to help safeguard our democracy.

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