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)
21 February 2009

Hiding behind the Constitution

I guess all politicians do it. Zuma does it all the time. Zille has done it to get rid of the Erasmus Commission. And now the whole Gauteng Provincial ANC seems to be doing it: hiding behind the constitution when it suits them.

In the case of the ANC the hypocrisy is unfortunately even more brazen than in the case of Helen Zille, as some of the same politicians who hide behind the constitution when their own is being probed, are quick to say that ¨criminals¨have too many rights, that the police should shoot the bastards, that rapists should not get bail.

So I cannot say I was too suprised when I read in Business Day that the ANC in the Gauteng legislature tried to block discussion of the Carl niehaus scandal by saying that the matter has been reported to the police and is therefore sub judice. (After all, we know from the apartheid days that the sub judice rule is – yes you guessed it – also the last refuge of scoundrels. According to Business Day:

ANC MPL Mathole Motshekga said Bloom should have read the constitution before informing the police. The law had standards on referring cases to the police and mentioning people’s names who were not involved in those cases.

I think what he meant to say is that one cannot lay a complaint with the police and make it public unless, well, unless the ANC has decided that he or she is guilty. This is of course utter rubbish.

The Constitution does say that every accused person must be presumed innocent until proven guilty in a court of law where this presumption helps to guarantee a fair trial. It says nothing about not being allowed to lay a complaint fo wrongdoing with the police against anyone and making that public.

It is of course for the dear police to dilligently investigate such complaints and to hand over the docket to the NPA who must then decide whether there is a winnable case. The statement is therefore nonsensical. Unless it is taking AS A FACT that Mr Paul Mashatile is innocent of any wrongdoing. Laying a malicious complaint to tarnish the reputation of a political opponent might well have some legal consequences in terms of the law of defamation, but in this case neither the ANC nor anyone else knows whether there is a winnable case against the Gauteng Premier. That is for a court to decide.

But who needs a court if the ANC itself – appointed by God to lead South Africa until Jesus come – has decided that a person is innocent. Fair trial rights only count for others after all.

And why is it that the same people who cry foul every time there is allegations of wrongdoing against the ANC – as if all these allegations were fabricated and it all just really is a dark plot – but think nothing to tell the electorate that the criminals must be dealt with more strictly. As if all the accused persons who are not ANC members do not have the right to be presumed innocent until proven guilty.

But this is the fact: even non-ANC members are not criminals before they have been convicted of a crime. So for Mr Zuma or the Minister of Police to say rapists must not get bail or that the Police should shoot the criminals is really encouraging the infringement of rights. If I was a rapist I would join the ANC – maybe they would tell the police to respect my rights then.

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