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.
A report of IOL on a speech given at the Cape Town Press club on Thursday. Can’t say it is not accurately reported…. except that I spoke of a “Solomonic solution” and not a “harmonic solution”. Some readers might get upset!
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African National Congress President Jacob Zuma is in the position he is today because of the “special treatment” he received from former national director of public prosecutions Bulelani Ngcuka, Western Cape academic Pierre de Vos said on Thursday.
Those who suggested Zuma’s rights were being breached forgot this, the University of the Western Cape constitutional law and human rights law professor told the Cape Town Press Club.
“There was a clear case against Mr Zuma. That is why his co-conspirator Mr [Durban businessman Schabir] Shaik was actually charged and convicted,” De Vos said.
“Mr Zuma, however, was not charged and convicted. This was a special favour for Mr Zuma, not an infringement of his rights.
“At that point; whether now, eight years later, there has been an infringement… the court must decide on that.
“But, people forget the reason why we are in this mess at the moment is because Mr Ngcuka, probably with the acquiescence, although I have no evidence for this, of the minister of justice, made the decision to have this harmonic solution of not charging Mr Zuma in the hope that he would go away. Instead of going away, he grew bigger.
“So Mr Zuma is the creation of Bulelani Ngcuka and of the President of South Africa himself [Thabo Mbeki].
“Without that kind of cynical behaviour on their behalf… we wouldn’t have been in the position we are in today,” De Vos said.
The present crisis and attacks on the judiciary could be traced back to the ANC national working committee’s (NWC) decision that Zuma would be the country’s next president.
The courts were in an invidious position because the majority party had decided on one course of action.
The reason the ANC Youth League and others were making radical statements in support of Zuma was not because of a particular liking for him.
“The reason can be traced back to the ANC NWC decision that Zuma will be the ANC’s presidential candidate.
“And I think, the undermining of the independence of the judiciary started there,” he said.
The NWC effectively said that no matter what the court decided, “our man will become the president”.
“In other words, by that decision, they are trying to intimidate the judges into making certain decisions.”
It was necessary for the ANC to discipline its members who were not showing respect for the independence of the judiciary.
That should be done, not just through “nice” speeches, but also through concrete action.
“If there’s no action taken internally against members of the ANC who flagrantly disrespect the independence of the judiciary, and try to intimidate judges, then the ANC should be held to account, not those individual members.
“And I think more should be said about the ANC leadership as a collective, and why they are so silent about these matters, and whether the silence doesn’t have something to do with their careers and their pay cheques at the end of the month,” De Vos said.