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.
When revelations were first made that then US President Bill Clinton had sex with an intern called Monica Lewinsky, he famously stated: “I did not have sexual relations with that woman, Miss Lewinsky”. Looking directly into the TV camera and conjuring up what appeared to be genuine outrage, he told a blatant lie to the American people. However, after he survived an impeachment trial before the US Senate, his-approval rating went up as high as 73% and he eventually retired with an approval rating of 68%.
The American public and media seem to hold their elected representatives (but not always themselves and the Hollywood Stars they seem to be obsessed about) to a very high moral standard. When a politician has sex with somebody (of either the same or of a different sex) who happens not to be his or her spouse, that politician’s career usually comes to an abrupt end because the private conduct of a politician is assumed to say much about the character and integrity of the politician involved. Publishing revelations about the sex lives of politicians are therefore always assumed to be in the public interest.
Yet, the American public seem to have forgiven Clinton for both his sexual dalliance and for lying about it, perhaps because many voters viewed Clinton as a good President and because the economy was booming as his presidency came to a close. This suggests that, despite assertions to the contrary, concerns of American voters about jobs, money and their own prosperity trump concerns about the private sexual conduct of any of their elected politicians.
It is somewhat unclear whether South Africans believe that it is in the public interest for the media to report on the sex lives of politicians. When, shortly after he took office, it was revealed that President Jacob Zuma had fathered a child with the daughter of one of his old friends, there was widespread outrage amongst members of the public about this news. Very few people argued that the newspapers should not have reported the facts about this affair at all or invoked our President’s right to privacy. President Zuma’s standing was eroded by the revelation, suggesting that many South Africans thought it was in the public interest for the media to report on the extra-marital sexcapades of our President.
This response might have had something to do with the fact that there was already some unease about President Zuma’s values and his sexual behaviour among many South Africans. The revelation seemed to re-enforce concerns some South Africans had about President Zuma and many believed it was in the public interest to publish revelations about his sex life because it said something vital about his character and would affect how people would judge his performance as President of the country.
However, revelations in City Press on Sunday that Sports Minister Fikile Mbalula twice had sex with Joyce Molamu (referred to by newspapers as “a Johannesburg model”) while still supposedly being happily married to someone else and the fact that Minister Mbalula (through his lawyer) first denied to City Press that he had had sex with Ms Molamu, before admitting to other news outlets that he did indeed have sex with her, have been met with far less concern or outrage. For some reason many South Africans now feel that Mr Mbalula’s private life is not relevant and does not say anything worthwhile about his abilities to do his job as the Minister of Sport(s).
In a democracy it is appropriate that public figures are sometimes treated differently than private citizens and that the former sometimes be entitled to a lesser degree of privacy than the latter. In an open and democratic society, voters have a right to be informed about all aspects of the lives of our politicians that they believe are relevant to enable them to make an informed decision about whether to support a particular politician or not. The difficulty is that it will not always be apparent what information voters would deem relevant.
For example, should the sexual orientation of an elected official ever be relevant? Should it be relevant that he or she has had an extra-marital dalliance? Should it be relevant in what house the politician lives, what clothes he or she wears and how he or she treats his friends? I can imagine that for some voters these issues will be deemed relevant, but does this mean the media has a right or even a duty — in the public interest — to publish revelations of this kind about a politician?
As a general rule, I would argue that information about the private life of a politician should not be deemed relevant and it should be assumed that it would not be in the public interest for the media to publish this kind of information about a politician. But this will change when these private aspects of a politician’s life relate directly to the job description of the politician or where the private conduct contradicts the publicly expressed views and professed values of that politician.
When a politician campaigns against same-sex marriage and argues that marriage is a solemn religious pact between two people of opposite sexes (to the exclusion of all others), the fact that the politician had an extra-marital affair with somebody of the same sex or of the opposite sex, would obviously be relevant and publishing such revelations would be in the public interest. But if a politician belongs to a party like the ANC who supports gay rights, then revelations about a politician’s sexual orientation should probably be deemed irrelevant.
But other scenarios are more murky. One may assume that the personal characteristics of a politician like honesty, integrity, diligence and fidelity may affect the manner in which that politician does his or her job. Where the private actions of a Minister suggest that he or she is not honest, is not capable of diligence and lacks integrity, this might well have a potential impact on the manner in which that Minister does his or her job. Thus, if a Minister has been convicted of theft or fraud or is a known and un-rehabilitated alcoholic that would surely always be relevant as it would probably have a very serious impact on the manner he or she does the job the person was appointed to do.
But if a Minister had an extra-marital dalliance, will that always provide an indication of how a Minister will perform his official duties? Personally, I would think not. However, this will depend on the very specific context of each case. Getting this call right will not always be easy as it requires one to make an overall assessment, taking into account all relevant factors and then weighing these up to decide whether the revelation of private information about a politician is in the public interest or not.
What one should guard against, however, is the danger of publishing information about a person for no other reason than to satisfy the prurient interests of the public in salacious information about the sex lives of public figures.BACK TO TOP